regulating the code? using isps to block banned web-sites in germany 14th computers, freedom &...

Regulating the Code?Using ISPs to block banned web-sites in Germany

14th Computers, Freedom & Privacy Conference

Wolfgang Schulz

Berkeley, 22th April 2004

Schulz page 2

Overview

There shall be no censorship: What really happened1 There shall be no censorship: What really happened1

The Background: Regulatory patchwork2

Analysis: Is the Administrative Act lawful?3

Outlook: Germany as ashining or warning example? 4

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What happened

Everybody has the right freely to express and disseminate their opinions orally, in writing or visually and to obtain information from generally accessible sources

without hindrance. Freedom of the press and freedom of reporting through audio-visual media shall be guaranteed. There shall be no censorship.

(Art 5 (1) Grundgesetz, German Constitution)

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Sperrungsverfügung

What happened:

– In Feburary 2002 the district government of Düsseldorf ordered several ISPs in North Rhine-Westphalia – a federal state of Germany – to block possible usage of www.stormfront.org and www.nazi-lauck-nsdap.com.

– Administrative act comprised the duty of immediate execution– Access providers lost several first actions before administrative courts in 2003.

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Technical aspects:Possible technical solutions to block web-sites l 1

Blocking the DNS

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pro con

Amateur-users unable to reach the page.

No additional hardware needed.

Web-pages still available if "blocked" server's IP number is known.

All web-sites hosted on blocked server not available.

Constant adjustment of DNS-blocking necessary.

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1

Blocking the IP-address

pro con

Amateur-users unable to reach the page.

No additional hardware needed.

All web-sites hosted on blocked server not available.

Constant adjustment of router's IP-filter necessary.

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Using a proxy server

pro con

Offers an opportunity of extensive control.

Avoidance by users that use the ISP not possible.

Loose of speed if all web-sites were checked. If restricted avoidance possible again

Filter software is fault-prone. Inoffensive sites might be blocked.

Filter-software needs cost-intensive constant care and updates.

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Overview

There shall be no censorship: What really happened1


Analysis: Is the Administrative Act lawful?3




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The background: regulatory patchwork

– Order was based on sec. 22 Inter States Treaty on Media Services:

– Sec. 22 empowers authorities to act in case of violation of Inter States Treaty. Possible actions: prohibition and blocking of internet services.

– Sec. 22 (2) is the legal basis for actions against content providers. Sec. 22 (3) is subsidiary to sec. 22 (2). If no effect of actions against providers of content the authorities can act against others like access providers.

– Competence regarding Internet Regulation is still highly controversial

– Federal and State Competencies: General principle: Regulation of technique: Federal / Regulation of Contents: State.

– Complex competencies of control: Different authorities in each State and for different objectives (protection of minors, data protection, competition, other matters)

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Overview






Analysis: Is the Administrative Act lawful?3 Analysis: Is the Administrative Act lawful?3

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Analysis: Is the administrative act lawful?

– Preliminary remark: Who is effected?

– The addressed ISPs– Customers of the ISP– Provider of the blocked host– All content providers using the blocked host

– European Law

– Possible breach of Art. 3 sec. 4 E-Commerce Directive, allows to act, e.g., in case of public policy affected. In particular prevention or prosecution of crimes, a service-provider has to comply with. Procedural requirements: other country unsuccessfully asked to act and European Commission to be informed before.

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– International Law

– Extra-territorial effects have to be considered (compare: French Yahoo!-Case). – Applicability of sec. 22 States Treaty on foreign cases? Collision prescripts of Criminal

Code can be affiliate: General principle: Criminal Code applicable for crimes committed in inland?

– Law of nations could set extra-territorial boundaries:– Restatement (Third) Foreign Relations Law of the United States has achieved

authoritative character– Sec. 402: principle of consequences: substantial effects within State’s territory?

Confining sec. 403 to be regarded: no actions if exercising jurisdiction is unreasonable. – Law of Nations’ borders in controlling contents?: simple accessibility of content not

enough? Active infiltration (“Zippo-test”), content aims especially at certain territory (“target-test”)

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– Constitutional Law

– Content protected under Art. 5 Grundgesetz? – Auschwitz denial not protected – Apart from that: dissemination as well protected as reception

– Lawful restriction of the freedom of speech– Sec. 130 StGB (Criminal Code): sedition + sec. 86 StGB: dissemination of

unconstitutional association’s propaganda – Background: “Principle of well fortified democracy”

– Prohibition of censorship as an absolute limit of restrictions?– Only censorship before publication reasonable distinction in the internet? – By the state in order to hinder publication pushing the self-censorship of ISPs

covered?

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– Is sec 22 (3) applicable?– Code of criminal procedure (StPO) overriding?– Provision of access as Media Service

– Line of demarcation: Telecommunications Services: strict distinction between Telecommunications Services and Content related services

– Line of demarcation: Tele Services: complex demarcation between Tele- and Media Services. Main difference: Tele Services cover individually used services (e.g. online banking), Media-Services characterised by intending to address the public.

– Sec. 3 (1) States Treaty might comprise providers of access, as well, because supplying access for utilisation of Media Services.

– Is there a breach of a provision of the Interstate Treaty?

– Violation of sec 12 States Treaty, if Media Service offends criminal laws, glorifies war or represents a moral menace to children and adolescents.

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– Technical feasibility of blocking:

– Offences only lawful as long as something technically feasible is requested– Decree asks for blocking, proposes use of DNS-, IP- or proxy-filters.

– Legal responsibility of access providers

– Access providers do not cause the danger by their behaviour or by being responsible for a source of danger. In German Police Law, the access providers are “non-disturbers”, who are entitled to a of compensation.

– Substitution of general Police Law principles by sec. 22 (3) States Treaty: special request: measures towards access and service providers are subsidiary.

– More restrictive interpretation needed in order to mind an all-embracing appliance leading to re-nationalisation of the internet?

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– Proportionality of the measure– Measure suitable to fulfil the act’s aims?

– Critics stated that act not suitable, cause all possible means do not promise success. But no complete success needed, helping to fulfil the aims is legally sufficient.

– Is it the least intrusive measure– Is interference with the right proportionate to the legitimate aim?

– Overweighing of public interest in consideration with different impacts:– Access providers’ freedom of profession (Art. 12 GG) is attached > limited to general

laws– Access providers’ freedom of expression (Art. 5 (1) GG) is attached, because of

helping dissemination information via a media. But here content disseminated is not protected by Art. 5 (1) GG

– Users’ right to unrestrained access to information (Art. 5 (1) 2 GG). Consideration required: right to inform is constitutive for a democratic state. But democracy and state is being attacked by those contents. Overweighing of public interests

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Overview


Outlook:Germany as ashining or warning example? 4



Analysis: Is the Administrative Act lawful?3 Analysis: Is the Administrative Act lawful?3


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Outlook: Germany as a shining or a warning example?

Secondary responsibility of access providers is in line with general rules ofGerman police law

but:

1. Deeper meaning of the prohibition of censorship: The State should not regulate whether content becomes part of public sphere or not.

– Not each internet services is a mass medium, but Internet to be treated like mass media, i.e. no administrative action before publication

– Blocking order should only be possible by court decision, not by administration.

2. Chilling effect on ISPs: enforcing self-censorship to evade the prohibition of censorship

3. Nationalisation of the internet

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