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Submission to Senate Select Committee on Community Standards
Relevant to the Supply of Services Utilising Electronic Technologies

Inquiry into Computer On-Line Services, Part 3

March 1997



There is a disturbing trend towards an increasingly repressive censorship regime in all media in Australia. While such measures invariably claim "protecting the children" as an objective, they deny the rights of adult Australians to decide what they should see, read or hear and they deny parents the responsibility of safeguarding their children.

Filtering and Blocking technologies, while they may provide some comfort for parents who wish their children to use the Internet unsupervised, have a number of serious performance deficiencies. They also leave open the way to corporatised censorship on political, religious, racial or other grounds.

Self-rating of Internet content based on the PICS standard is unacceptable and ineffective.

Third-party PICS ratings services appear to have more promise, but considerably more development must occur in order to produce unbiased and effective services.

Existing law seems to be effective in prosecuting the few cases of unlawful activity on the Internet that have come to light in Australia.

Some countries throughout the world, particularly the more authoritarian regimes, have implemented strict censorship of Internet content on political grounds. Much of this has been counterproductive and Australia needs to take heed of the folly that has occurred elsewhere.


The Committee should demonstrate its understanding of on-line technologies by establishing a Committee Web page, including E-Mail addresses, and by publishing its report on-line.

The Committee should make a genuine attempt to understand the meaning of "community standards" in a multi-cultural society. Even if capable of definition, it is most certainly not a matter that can be determined by the political power of ultra-conservative interests.

The Committee should recommend caution in the use of blocking software.

Schools using the Internet should be encouraged to provide Internet training and education for parents.

The promotion of self-rating systems such as RSACi should be seriously questioned as a solution to the problem of blocking access to "objectionable" material.

The development of third party rating services by the primary and secondary educational communities in particular, should be encouraged.

Adult access to the Internet should not be censored.

The Committee should consider holding on-line hearings using IRC, to enable further interaction with the Internet community.


This is now the fifth inquiry into on-line regulatory issues in Australia in the last 3 years. In August 1994 the Department of Communications and the Arts sought submissions to the BBS Task Force. EFA submitted a joint response with ACS to this investigation. The BBS Task Force Report was subsequently released in November 1994.

In July 1995 the Department of Communications and the Arts (DCA) released a Consultation Paper seeking comment by 1st September 1995, to which EFA also made a submission. However, no public report was ever produced as a result of this investigation.

In September 1995 it was announced that the Senate Select Committee on Community Standards would conduct an investigation into the content of on-line services. Public submissions were invited and the Committee produced the Report on Regulation of Computer On-Line Services. The Recommendations of the Committee betrayed some confused notions of the nature of on-line systems and a misunderstanding of the role of cryptography. It recommended that R-rated material be banned from "transmission" and that all on-line material be classified at source. EFA Chair Kim Heitman's Censorship Crisis article provided a detailed critique of the Senate committee recommendations.

On July 5th 1996, the Minister for Communications and the Arts, Senator Richard Alston, announced the release of the Australian Broadcasting Authority (ABA) report. The report is available on-line on the ABA Web site. This extensive report made a number of recommendations supporting a largely self-regulatory regime based on Codes of Conduct to be developed in consultation with the Internet industry. The report also strongly endorsed the PICS standard as a means of controlling access to on-line material. Central to the ABA approach is an industry "code of practice", ostensibly drafted by the service provider industry, but subject to approval by the ABA.

Now, in March 1997, we have yet another inquiry by the Senate Select Committee on Community Standards. In its recent Report on The Portrayal of Violence in the Electronic Media the Committee noted on p.40:

The Committee seems to have taken upon itself a role in influencing, or worse, determining community standards, based apparently on an extreme conservative bias in respect of censorship issues. It would seem, in view of the government's stated intent to ban non-violent erotica (X-rated material), that there are forces at work determined to decide what adults may see, read and hear, despite policy claims to the contrary, and despite surveys that show that a significant majority of adults support the availability of such material.

These moves seem to contradict the Coalition policy on Censorship, which states:

and also by the Coalition Freedom of Speech policy: Similarly, Labor Censorship policy states: Despite these noble policy objectives, we are seeing increasing evidence of restrictive censorship proposals, even in situations, as with pay television and X-rated videos, where persons are extremely unlikely to be exposed to unsolicited material which might offend them. The words of U.S. judge Robert H. Jackson (1892-1954) might well be borne in mind:

Some General Comments about Censorship Issues

We hear a lot of the term "protecting the children" in discussions of censoring or restricting the Internet, yet rarely do we hear from children themselves. The US Communications Decency Act (CDA), which went to the Supreme Court on 19th March, was ostensibly aimed at protecting children from the dangers of on-line smut, but would also severely curtail their access to valuable information such as AIDS education materials and many classic works of literature. But even more ominously, as a government lawyer admitted before the Supreme Court, the CDA could turn teens into criminals if they discuss issues of sexuality on-line with other teens.

On 24 March 97, The Netizen reported:
(See Appendix 1 for full article)

This puts the problem in perspective. Much of the paranoia about the Internet is fed by media hysteria rather than real experience. The tiny amount of truly "objectionable" material on the Internet is confined to a few newsgroups. The World Wide Web certainly contains a small proportion of adult material although even this is largely restricted to adults through the simple mechanism of requiring a credit card for access or membership. Even so, most of this material is little different from that available in adult magazines in newsagents, and in many cases is similar to the content of unrestricted publications such as Playboy and Hustler, which may be legally sold to children.

Avendon Carol, of Feminists against Censorship, writes, in A Lie About the Dangers of Pornography:

And meanwhile, surveys continue to show that censorship of the Internet is most strongly favoured by those who have never used it, while amongst Internet users pro-censorship viewpoints are a small minority. Over one million Australians now use the Internet. We have one of the highest uptake rates in the world, yet our political focus seems to be largely confined to means of repressing it rather than means of exploiting it.

EFA's view is that parental supervision and involvement is the most effective means of guiding children's use of on-line information. Blocking and filtering software are crude and imperfect approaches that cause more harm than good. A U.S. librarian Carolyn Caywood, put the issue this way in a discussion about library censorship software in March 1997:

Commentary on the Committee's Previous Report

The Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies released the findings of its first inquiry into on-line services in November 1995. Briefly, after considering submissions from individuals, community groups and corporations, the Senate Committee recommended the following:

That it should be an offence to use a computer service to transmit, obtain possession of, demonstrate, advertise or request the transmission of material equivalent to the RC, R and X categories.

The EFA opposes this recommendation, as it will unreasonably restrict free speech, will reduce services to children's level, and impact unfairly on controversial matters. It is quite impossible for any national government to affect the availability or otherwise of such material, and the EFA believes that such an offence would equate controversial material with blatantly offensive material - to the particular detriment of "adult" content and minority opinions.

That the Government give consideration to making the use of strong cryptography by service providers obligatory...".

The EFA considers this is a foolish idea, since while the use of strong cryptography is desirable in certain communications requiring privacy, it would be wholly unnecessary for the vast majority of email and would provide technical problems for both service providers and novice Net users. The recommendation suggests a misunderstanding on the part of the Committee as to the nature and purpose of encryption systems.

That subject to the making of contractual arrangements with access providers/service providers to require compliance with the law, network operators should bear no responsibility or liability for material which passes over their networks.

This is the first recorded instance of a government committee acknowledging that "network operators" cannot filter content, and is commendable for that. However, the "contractual arrangements" part is questionable, especially in view of the potential for censorship of newsgroups and commercial considerations becoming encoded into law.

That access and service providers be required to verify the identity of all clients and that all clients are over the age of 18 years.

The EFA believes that many service and access providers will do this in any event - but those that choose to have clients under 18 years (such as limited-access school nets, universities and colleges and teen-oriented on-line services) should be legally able to do so. Some ISPs have as many as 70% of their clients under 18, and that is not necessarily a problem.

In any offence provision, a clear distinction must be drawn between the liability of the originator of "objectionable" material and a carrier of that material.

The EFA again endorses this proposal - but this will involve both legislation to define "objectionable material" in a reasonable manner and also legislation to exempt access and service providers from civil and criminal liability. For example, libel and discrimination laws are presently a real concern.

That where service provides can demonstrate that action had been taken in good faith to restrict access to "objectionable" material they should have a defence from liability for carriage of such material.

This sounds reasonable, but implies both a Code of Practice and a realistic definition of "objectionable material". The committee does not seem to appreciate that Usenet newsgroups can be swiftly propagated, sites can change address rapidly, and not all of the clearly-labelled "objectionable material" is as harmful as one might expect. For example, the pornography available in the alt.binaries newsgroups is mostly R or X rated, and the occurrences of RC material are few. It makes sense to leave the controversial newsgroups as they are, to avoid new newsgroups being formed or (as happened when CompuServe censored the newsgroups), controversial material being cross-posted to other, less-suitable newsgroups.

The Committee then made a recommendation for the establishment of a regulatory group, with special focus on gender equality and educationalist input. The EFA opposes this step, as it would impose costly regulation requirements on small service providers.

Finally, the Committee recommended that the Australian Government pursue at international forums the concept of classification at source of all material placed on-line, based on an agreed set of classification standards.

This is sheer "pie in the sky", utterly ignoring the volume of material placed on-line daily and the absence of any way of restricting the placement of material in a multicasting environment. How is the most pervasive of international censors going to deal with every word or picture placed on the Net? However, this recommendation has in turn led to the Australian Broadcasting Authority taking up the challenge towards attempting to do so, and attempting to classify the material by reference to the criteria used for computer games and movies.


Recent Technological Developments - Blocking and Filtering Software

A distinction must be made between the terms blocking and filtering. We will define blocking as a process whereby the link to a particular site is presented to the user, but attempts to access the site result in an error message. Filtering on the other hand refers to a process whereby a search engine or index delivers only references to those sites that meet certain predefined criteria, i.e. sites containing unsuitable material are not even visible as links.


The Australian Broadcasting Authority, in its July 1996 report, Investigation into the Content of On-line Services, strongly endorsed the Platform for Internet Content Selection (PICS) as a means of protecting children "without censorship". PICS was developed as a result of a merger between the Information Highway Parental Empowerment Group (IHPEG) and the World Wide Web Consortium (W3C).

PICS provides an infrastructure for content labelling and is not a rating system itself. Rating must be done using either embedded rating tags conforming to a particular rating system, or by reference to a third party rating server, which independently rates content. Examples of rating systems are those developed by the Recreational Software Advisory Council (RSAC) and Safe-Surf.

Further background information sources on PICS and content rating systems:

Despite a great deal of early enthusiasm for PICS, a number of problems are now beginning to surface. Paramount among these are: EFA is opposed to the use of self-labelling systems as a means of regulating Internet content. The issues are further expounded at the following sources:

Rating Systems

RSACi and SafeSurf are the two best-known rating systems designed to work within the PICS framework.

The RSACi Rating System incorporates complex definitions under four categories of material: Sex, Nudity, Language and Violence.

The system originates from RSAC's computer games ratings system, an origin which is betrayed in the questionnaire that a webmaster must complete in order to obtain a rating. There are many categories of material which would prove difficult or impossible to rate under the RSACi system, e.g. news reports, automatically-generated Web pages from Search engines, artistic works, health and medical information.

Furthermore, the RSACi content categories do not provide a ready means of rating a great deal of contentious material that many parents would have concerns about, e.g. gambling, religious cults, drugs, extremist political viewpoints, bomb recipes and other illegal or harmful content.

Owing to the perceived problems with the RSACi system, the EFA has recently condemned the RSACi ratings system as totally unsuited to its stated objective.

The SafeSurf rating system, while less well known than RSACi, is based on a more comprehensive, and hence more complex, content classification regime.

The SafeSurf categories include:
Suitable Age Range, Profanity, Heterosexual themes, Homosexual themes, Nudity and consenting sexual acts, Violent themes, Sexual violence, Accusations or attacks against racial or religious groups, Themes advocating or glorifying illegal drug use, Other adult themes requiring parental caution, and Gambling.

This list illustrates the complexity of the task of rating Internet content. The problem becomes even greater when one considers that material will have to be rated under all of the main rating system contenders in order to be widely accessible.

Cyber Patrol's CyberNOT Block List forms the basis of its third-party rating server, a content blocking method also supported by PICS. Under this scheme, the client software accesses a rating server to determine the content ratings for requested material. The CyberNOT Service provides rating information on two categories, Sex and Other. The Sex category includes four sub-categories: Gross Depictions; Sexual Acts/Text; Partial Nudity, Nudity. The Other sub-category includes: Racist/Ethnic; Gambling; Satanic/Cult; Drugs & Drug Culture; Militant/Extremist; Violence/Profanity; Questionable/Illegal and Alcohol, Beer & Wine.

The European Commission has produced an extensive report on the problems of Internet content filtering. While it endorsed the PICS concept, it rejected the adoption of a US-centric ratings system, recommending instead the development of a European system.

For the latest information on rating services, see the PICS Third-Party Rating and Self-Rating Services Lists.

Blocking and Filtering Software

Some of the better known software packages available to assist parents and educators to block access to sites considered unsuitable for children are listed below. These details are presented for information purposes only and should not be construed as EFA endorsement of suitability or effectiveness. Criticisms have been made in recent times about the nature of the material that is blocked by particular packages. The list of sites blocked by each package is generally a closely-guarded secret and as such, parents have no option but to trust the judgement and stated policies of the commercial entities responsible.

CYBERsitter in particular has come under a storm of criticism recently for its action in blocking Peacefire, a teenage anti-censorship group, threatening legal action, blocking entire domains, as well as blocking feminist and other sites which many parents would not consider "objectionable". Peacefire was one of Cybersitter's major critics and it is hard to escape the conclusion that the company blocked the site because of this criticism. This is the danger of corporatised censorship. Cybersitter also blocks entire domains, supposedly for software efficiency reasons, in cases where two or more directories are deemed "objectionable".

CyberPatrol has a design problem caused by the fact that only the first two characters of a user directory name are stored on their blacklist database. On large ISPs this has the effect of blocking huge numbers of sites that should not be blocked at all, but have the misfortune of sharing a name that begins with the same characters as an "objectionable" site.

Recently a censorware search engine has been placed on-line by The Netly News which provides a means of checking whether a particular site is blocked by Cybersitter, NetNanny, Surfwatch, CyberPatrol or The Internet Filter.

This has revealed some astounding misclassifications, e.g.

  1. The entire Telstra site is blocked, ostensibly for containing Sexual Material, Nudity and Drug Information!
  2. The University of Queensland Biological Science Department is blocked by CyberPatrol, apparently because it contains scientific information about the HIV virus.
More recently, CyberPatrol has developed a Search Engine which allows users to determine if a particular site is blacklisted.

Net Shepherd, a Canadian company, has embarked on a major campaign to rate a substantial part of the Internet, both for quality and age suitability. This is an example of a third-party PICS-compatible ratings service. This is a far better alternative to self-rating since it avoids the subjectivity problem involved in rating one's own material and provides a means of including a quality rating as well as a content rating. Unfortunately, Net Shepherd too has come under fire for the number of sites that have questionable or erroneous ratings, both in terms of maturity and quality.

Nevertheless, this is the first significant service of this type on the Internet and while the ratings may warrant criticism on a number of grounds, the effort is a useful one for the purpose of demonstrating how a third-party rating service can work.

Net Shepherd provides two facilities on-line:

  1. A conventional search for lists of sites on a given topic but with the added feature of selecting only those sites that comply with a specified quality and maturity rating.
  2. A search of their ratings database to determine the rating of a single specified site.

The following references provide additional information and discussion on filtering and blocking software:

In summary, filtering and blocking software provide crude and unacceptably error-prone methods of shielding children from unsuitable material. Some of the products are so poor that they warrant investigation for misleading advertising. However, most users would have few means of determining product suitability or quality. It would be a useful service for the Australian community if assessment of the quality of the various censorware products were carried out by an appropriate consumer organsiation.

Advice for Parents

Information to guide and inform parents on ways to protect their children in using the Internet.

Codes of Practice and Community Standards

There appears to be some serious confusion here about what "community standards" means in the context of the Internet, and about the relationship between telecommunications deregulation and on-line services.

Community Standards

The Internet supports a wide variety of different communities, each with standards of its own. Examples include newsgroups, mailing lists, and MUDs/MOOs. These communities range from the scholarly to the ludic; they may have a dozen members or tens of thousands.

The majority of these communities are global, in the sense that they include participants from around the world: there is, therefore, no justification for geographically localised "providers of on-line services" imposing local standards on such communities. With communities such as newsgroups, which have a fully distributed communication infrastructure, it is actually impossible to impose rules on them without the support of a consensus or near-consensus of news administrators worldwide. The mobility of information means that even communities whose infrastructure is provided by a single service provider (such as MUDs or MOOs) can easily be moved in response to interference. Internet communities are bound to particular communication infrastructures, but not to particular service providers.

Similarly, the Internet as a whole and its two most popular applications -- email and the World Wide Web -- are global. Users can send email to one another regardless of their geographical locations; users access Web pages without the geographical location of either being of real significance. There is, therefore, no place for the application of geographical community standards to the broader Internet, any more than to the Internet's smaller communities.

The society that is the Internet has its own community standards, its own rules, and its own ways of enforcing them. See The Rise of Law in Cyberspace (Post and Johnson).

Service Providers and Codes of Conduct

Internet Access Providers at their most basic provide only communications infrastructure (TCP/IP connectivity). They have no practical power to control what is done with that infrastructure. The same is true for providers of most higher level services (e.g. Usenet feeds, IRC servers).

Though a few service providers are global, most are geographically limited and all must use local hardware to connect to their users. Those aspects of a provider's service which are local, whether to Australia as a whole or to individual towns and regions, can sensibly be subject to relevant community standards, or to local law. Trade practices issues relating to quality of service, accuracy of advertising, billing, etc. are perhaps the most obvious examples.

But pressuring service providers into taking responsibility for global phenomena over which they have no control is another matter. Content on the Internet, for example, is global, since the location of Web pages makes little or no practical difference to their accessibility: perhaps 1% of the content on the Web resides on computers physically within Australia. It is not, therefore, reasonable to make providers' responsible for content available on-line. Such attempts can only be attempted using the methods of a police state.

Also, the Internet gives individual users both the ability to publish information and fine control over what information they access. Service providers are therefore the wrong level at which to apply sanctions on content, whether on publication or on access. An equivalent would be making road maintenance staff or car manufacturers responsible for drink driving.

Individual users are the only ones who can reasonably take responsibility for the content they provide. Individual users are the only ones who can take responsibility for protecting themselves (or their children) from viewing undesirable content.

From this perspective, there are some serious problems with some of the draft codes of conduct that have been proposed. EFA has criticised a draft of the INTIAA code. A comment on an early CAUDIT draft code is also available. It seems unlikely that many service providers will actually accept such codes. Where codes have been produced by bodies in consultation with service providers (e.g. the WAIA code), they do not impose this kind of burden. It is entirely unclear, however, what the ABA will require in a code before it is accepted for registration.

In response to complaints about "spam" (unsolicited junk email or bulk postings to Usenet newsgroups), many service providers (in Australia and elsewhere) have produced appropriate use policies forbidding "net abuse", or use of resources in such a way as to drastically reduce the utility of the network for others. Though such rules are supported by a majority of network administrators and users, they are still relatively ineffective in controlling the flood of junk email.


The "deregulated environment" referred to in the terms of reference is a deregulated telecommunications environment. For all practical purposes, the market in Internet services in Australia has never been regulated and hence can not be deregulated. In fact there is considerable danger that "deregulation" of the telecommunications industry will provide the monopoly/oligopoly that exists in that industry with the opportunity to create a similar monopoly in Internet services.

There is a case for giving Internet Service Providers some equivalent of the "common carrier" status currently possessed by telecommunications utilities, in order to protect them from the vagaries of individual state legislation; this would be a simple recognition of the limits of their control over what their users do with the services they provide.

Efficacy of Recent Regulatory Measures

"The principle of freedom of speech and expression is a fundamental human right."

One of the purposes of this inquiry is to determine the effectiveness of measures put in place to prevent the exploitation of children on the Internet. EFA is of the view that such measures, both in Australia and internationally, have been ineffective for this purpose.

Laws such as those enacted in some of Australian states, and others that members of the Committee may like to see in place, do not provide a way to 'protect' children. Why? Parents - not legislators - are the only group of people that can protect their children in the way the Committee suggests.

Electronic Frontiers Australia Inc. (EFA) believe that there have been no gains made with the recent measures introduced by the Federal, State & Territory governments to further prevent the exploitation of minors through the Internet.

EFA believe the most effective method to prevent exploitation of children on the Internet is through proper parental guidance and education and not through complex and unworkable legislation.


Legislation introduced by various governments within Australia has not been successful in achieving what it may have been set out to do.

Currently within Australia there are three (3) Acts which deal directly with 'objectionable material' on on-line services.

In Victoria, the Classifications (Publications, Films & Computer Games) (Enforcement) Act 1995, came into effect on 1 January 1996. No prosecutions have been made under this Act in relation to on-line services.

The N.T. Government has enacted the Classification of Publications and Films Amendment Act 1995 which is based on a draft of the W.A. Act. The legislation came into effect on 1st January 1996. No known prosecutions have been made under this Act in relation to on-line services.

In Western Australia, the Censorship Act 1996 came into effect on 1 July 1996. No prosecutions have been made under this Act in relation to on-line services.

In Queensland, the government enacted the Classification of Computer Games and Images (Interim) Act 1995. This Act was not enacted as measure relating to on-line services, however authorities attempted to prosecute a man in a recent court case (refer Case Law below) using this legislation. This move was rejected by the Queensland court.

The related Federal legislation (Classification (Publications, Films and Computer Games) Act 1995) refers only to a definition for 'computer generated image' however does not provide any reference to the 'control' of on-line services. The closest the Act gets to including on-line services is the long-title of the Act which reads "An Act relating to the classification of publications, films and computer games, and related matters."

Of this legislation, only the Western Australian Act provides a definition on what is 'objectionable', providing some guidance to Internet users on what is considered acceptable by the Western Australian government. The same cannot be said for the remaining legislation which is pending interpretation of 'objectionable' by a court of law.

EFA strongly believes that existing legislation currently provides the 'much needed', or much publicised, protection of children on the internet (on-line services). Most of the claims to censor the Internet to protect children relate to child pornography. Laws already exist which make child pornography in any format illegal.

Section 85ZE of the Crimes Act 1914 states that "A person shall not knowingly or recklessly: (a) use a telecommunications service supplied by a carrier to menace or harass another person; or (b) use a telecommunications service supplied by a carrier in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive."

Existing law was adequate. No new laws were required. No new laws are required.

Protecting the Internet User

One of the issues that has not been discussed by the Committee at any stage is the abuse of the freedoms of Australian people relating to the Internet.

Over the last twelve to twenty-four months, many rights taken for granted by the off-line community have been removed, either through threat of prosecution or misunderstanding the legislation, from the on-line community. This infringement on the freedoms of people using on-line services must stop.

The Australian Broadcasting Authority in their report to the Minister for Communications and the Arts titled "Investigation into the content of on-line services" confirms the rights of on-line service users with its statement that "Essentially private communications, such as e-mail, should be exempt from regulation". EFA will continue to support this.

The right for reasonable adults to view material not considered 'objectionable' by them should remain and should not be made illegal, which is effectively what the Committee appears to be aiming to do.

Case Law

There have been a handful of prosecutions under State and Federal legislation , none of which have resulted in prison terms. This illustrates that the prosecuting authorities and the Courts are capable of dealing with the very few cases of illegal activity on the Internet under existing legislation ; and also that the nature of the illegal activity at issue is not as serious as the television media have suggested.


No legal proof has been documented that more exploitation of minors is being undertaken on the Internet than before. Whilst the EFA agrees that the Internet has been, and may continue to be, used for illegal activities (such as child pornography, etc), we remind the committee that so too are many of the other forms of communication (ie. postal service, telecommunications, couriers, etc). It is not isolated to the Internet, and yet, it is the Internet that has been the most often reviewed, investigated and reported on (often inaccurately) in the last 2 years.

The Committee must acknowledge that this experiment has failed. The objectives of the Committee may have been to protect children on the Internet. This task lies with the parents, and not the parliament.

For further commentary on the issue of child exploitation from the perspective of children themselves, see Appendix 1.

Recent International Developments

Recent international developments in on-line services and their regulation include the good, the bad, and the down right ugly. In the US the preliminary judgement against the Communication Decency Act provides a must read primer on the Internet and argues persuasively why government should stay out of the business of regulating on-line content.

Many countries are in the process of imposing regulations which will cut their citizens of from the rest of the world. Some countries, such as Austria, are arbitrarily depriving their citizens of their access to the Internet because one user of their Internet Service Provider is suspected of having possibly illegal content on the ISP's server. If we are not to descend in to a new dark age of international fascism, ISPs must be absolved of responsibility for their users' conduct.

The Internet must be recognised as a new communications medium unlike any other that has been developed. International attempts to censor it have been largely counter-productive, whether done for political reasons or on moral grounds. It needs a new approach, based on freedom of information. The best answer to bad speech is more speech.


In June 1996, a special panel of federal judges in Philadelphia ruled that the Communications Decency Act, signed into law by President Clinton in February 1996, was unconstitutional.

In December 1996, the United States Supreme Court agreed to hear the U.S. Government's appeal of a landmark legal challenge to the Communications Decency Act. The case, which will determine the future of freedom of speech in cyberspace was heard recently. The Supreme Court Judgement is expected in June.

During the Supreme Court hearing earlier this month it became apparent that the CDA would turn healthy, otherwise law-abiding older kids into criminals for talking about sexuality over the Internet. This is as powerful a commentary as anybody could make about how irrational the discussion has become about new media, technology, morality, and children. For further commentary, and the opinions of American youth about the CDA, see Appendix 1.


A study commissioned by Industry Canada on content related Internet liability has recently been completed. The study provides an analysis of how Canadian law applies to content related Internet liability in areas such as defamation, obscenity, child pornography and hate literature. The report called "The Cyberspace is not a No Law Land", is available from Industry Canada's Strategis site and can be reached at: "http://strategis.ic.gc.ca/nme". Further details are given in Appendix 2.


On 9th August 1996, in what has been described as the use of stand over tactics, the police wrote to all Internet Service Providers instructing them to censor Internet news groups. If they refused the police threatened "to move to an enforcement policy". This move was ostensibly aimed at illegal material but included a wide range of newsgroups whose content was no different from that found in readily available publications.

In September 1996 the Safety-Net organisation was announced which provides a means for the public to report illegal on-line content, together with a series of censorship proposals, amongst them placing responsibility on ISPs to censor users' pages and require PICS ratings. Safety-Net has subsequently been renamed the Internet Watch Foundation. An organisation similar to the Internet Watch Foundation has been operating in Holland for a number of years.

For more information on the U.K. situation:


In September 1996, German Internet Providers, following "advice" from the German Chief Prosecutor's Office, started censoring the Dutch website www.xs4all.nl, containing 3100 personal and commercial homepages. This act of censorship was caused by the webpage of a magazine that is banned in Germany, Radikal.

This act had the immediate effect of further publicising the material, and resulted in mirror sites springing up elsewhere. For more information:


Last week the police took all of the computers and network equipment from a Vienna based ISP on the basis of a tip off from the Munich district attorney that a single client of the ISP was allegedly involved in the distribution of child pornography. As a result thousands of innocent customers are now without access to the Internet. For more details see Appendix 3.


Stringent censorship regulations were announced by the Singapore Broadcasting Authority in July 1996, requiring ISPs to block out objectionable sites as directed by SBA. The topics banned included those which affected Public and National Security, Public Morals, and Racial and Religious Harmony.

In September 1996, SingNet, Singapore's main Internet Service Provider, announced that customers would only be able to access the Web via SingNet's proxy server, which apparently was configured to reject accesses to the SBA's banned list.

For more information, see:


Under a new decree which was due to take effect on 17th March, the Vietnamese Government will manage domestic use of the Internet, supervise all Internet content, and control international links between Vietnamese users and the World Wide Web.

This decree may have unfortunate consequences for Vietnam, as it comes at a time when the Vietnamese Government is trying to foster high-technology and export-oriented industries. It will prevent Vietnamese citizens from gaining inexpensive access to the Internet through a server outside the country and thus prevent them from exchanging ideas on how to integrate Vietnam's economy into the global market. It will also narrow the opportunity for international communications and exchange of ideas on topics that could benefit Vietnam's development. The Internet, as it exists today, provides one of the best way for scientists and academicians to share knowledge globally and learn from each others experiences. Any attempt to control the content can discourage free flow of information even among this community.

For more information see: Appendix 4.


The French government have sponsored a committee to monitor adherence to government imposed "self-regulatory guidelines" for the Internet. Many members of the committee appear to be unwilling participants in what appears to be a mandate for legitimised censorship. More details are given in Appendix 5.

Association des Utilisateurs d'Internet (French Internet Users' Association) has issued a press release strongly criticising French government's attempt to hold ISP system operators liable for Usenet content. For more information see:


In September 1996, China banned access to an estimated 100 Web sites by using a filtering system to prevent delivery of offending information. The banned sites included Western news outlets, Taiwanese commentary sites, anti-China dissident sites and sexually explicit sites.


As well as the above details on developments in individual countries, the following are also important developments and commentary.

The Parliamentary Human Rights Foundation have issued "The Open Internet Policy Principles", a set of recommendations to guide the use of the Internet. The principles are intended as a framework for parliamentarians as they consider the impact of the Internet in their own and other countries. For further details and the complete text of the principles see Appendix 6.

Declaration of Cajamar: Resolution of participants in Media for Citizenship in the Electronic Age seminar convened by Videazimut in Cajamar, Brazil, July 3-5, 1996. Resolution supports UN declarations of rights, McBride & Maitland Commissions' reports, and conclusions of Beijing Conference on Women. Declaration concludes: "we encourage all individuals and organisations worldwide working in the field of communications for development and democracy to collaborate in solidarity and work together, at every opportunity, to achieve these goals." Declaration also asks government of Brazil to shape up in this area. For more information see:

The National Center for Missing and Exploited Children (NCMEC) has teamed up with members of the Interactive Services Association (ISA) to offer this brochure, written by Los Angeles Times syndicated columnist Lawrence J. Magid, to educate families about the benefits and risks of on-line services. For more information see:

Taking Cyberspace Seriously: Dealing with Obnoxious Messages on the Net, David Johnson. Excerpt: "Territorially-based laws fail us when we confront new phenomena involving participants whose geographical locations span legal jurisdictions and have little relationship to the locus of the harms they might inflict...we can reduce the intensity of the debate, and find some real solutions...if we take seriously the idea that cyberspace is a separate place...fully absorb the fact that most communications on the net amount to the joint creation of a new shared space allowing the assembly of like-minded individuals." For more information see:

Volume Controls in Cyberspace? -- Hard First Amendment Questions in the Age of Electronic Networking, article by David Johnson. Excerpt: "Some call for enforcement of the First Amendment in cyberspace. Some point out that the First Amendment is a local U.S. ordinance...But no one has yet come to grips with the hard question of how we will balance the community interests in imposing some limitations on speech against the desire to facilitate open communication over the Net...In other words, if we did have a "First Amendment" in cyberspace, generally agreed upon as a global balancing tool for the rights of speech and the protection of other interests, what would it say?" For more information see http://www.eff.org/pub/Censorship/cyber_first_amend_johnson.article

Granularity and the Law of Cyberspace, article by David Johnson. Excerpt: 'With regard to intellectual property doctrine, the simultaneous bigness and smallness of intellectual artifacts in cyberspace causes serious problems. Should we consider each e-mail message a "work"? How can we use the "proportion taken" factor in a "fair use" analysis when we are dealing with the copying and forwarding of "whole" e-mail messages?...The same can be said about many other areas of law. The large numbers of small bits traversing a network make it nearly impossible for a sysop to review messages in advance -- and therefore requires us to rethink the application to sysops of traditional "publisher" liability for defamation...' For more information see:

Shari Steele's Human Rights (A.B.A) article on current (Spring '96) Internet censorship issues For more information see:

Children, Child Abuse and Cyberporn: A Primer for Clear Thinkers, article for Internet World By Mike Godwin. "Here's an interesting experiment. Try combining the topics of Sex, Children, and the Net in a magazine or newspaper story, or even in an on-line discussion. Amazingly, this combination will almost invariably cause ostensibly intelligent people to shut down their higher thinking centers...Which is why I came up with the following quick-and-dirty primer to help folks out...When talking about pornography and child safety on the Net, one often sees several different terms bandied about as if they were interchangeable. They're not. Here are some basic definitions..." For more information see:

Article by Steve Cisler (Apple librarian). Summary: Now that the Internet is becoming popular, many people and organizations want to protect the Internet, protect people from the Internet, protect individual systems from casual visitors, protect children from access to certain files and on-line interactions, and protect whole cultures from outside influences. For more information see:

Appendix 1

Commentary on CDA (U.S.A.)

From: <http://www.netizen.com> - The Netizen
24 March 97
Media Rant
by Jon Katz <[email protected]>

Youth speak for themselves about the CDA

Real children are voiceless and invisible even as they are ostensibly at the center of the raging national debate about ensuring their safety from media, technology, advertising, and pornography. Even though champions of the Communications Decency Act of 1996 characterise the Internet as a danger, and a "revolutionary means for displaying patently offensive, sexually explicit material to children in the privacy of their homes," no children are ever heard from in discussions about their safety.

Adults, politicians, and journalists feel free to define kids, delineate dangers facing them, curb other people's freedom in the name of protecting them - yet they are eerily absent from discussions about their welfare. And if you spend any time talking to them, it's clear why. They aren't afraid of new media, and aren't in danger from it.

In more than six weeks of touring to discuss children, morality, and old and new media on behalf of my book Virtuous Reality, I never saw or heard from a single young person on more than 150 radio and television appearances, almost every one of which talked about kid's cultural lives and the many "dangers" arising from TV, movies, and the Internet.

In the oral arguments before the Supreme Court in Washington on Wednesday discussing the constitutionality of the CDA, US Supreme Court Justice Stephen Breyer elicited a shocking admission from government lawyers - buried deep in most media reports - that the CDA would criminalise countless teenagers who speak about their sexual lives, real or imagined, over email or other Net forums.

Breyer asked Deputy Solicitor General Seth Waxman if the CDA "would suddenly make large numbers of high school students across the country guilty of federal crimes."

That might be the case, argued Waxman, who added that the prospect of turning hundreds of thousands of teens into federal criminals because they yak about sex was "a small price to pay" to protect children from unfettered access to Penthouse, Hustler, and other sexually explicit material.

That a high-ranking government official would consider "unfiltered" access to Penthouse or Hustler a far greater danger to society than turning healthy, otherwise law-abiding older kids into criminals for talking about sexuality is as powerful a commentary as anybody could make about how irrational the discussion in America has become about new media, technology, morality, and children.

Given the willingness of politicians and government officials to brand adolescent sexual discussion as criminal behaviour, it seems all the more outrageous that media and politicians have completely excluded the young from this discussion. But then, kids won't tell them what they want to hear. Children are presumed by politicians and journalists to be too stupid, vulnerable, and powerless to join in discussions involving their cultural lives and welfare. This is a huge mistake for both politics and media. An entire generation of kids is growing up seeing politicians and reporters as both clueless and useless. Both of these institutions seem to have forgotten that these are future voters and future consumers. But these kids may have long memories, judging from the email I get.

If the Net is about anything, it's about giving voice and expression to people who haven't had much, especially in mainstream journalism and politics.

Writing about the rights of children in the digital age in a Wired magazine article, about music sanitization at Wal-Mart, kids and pornography and other issues, I've gotten a lot of email from people under 18. Some of these kids email me regularly. Some volunteered their opinions about the CDA this week, and I emailed others asking what they thought about it.

All the first names and cities are real. So are all the quotes. I cleaned up some misspellings and edited out some sentences for space. Otherwise, they are quoted directly from email posts. Not one of the children I corresponded with felt the Internet was dangerous or felt there was a need for federal policing of "decency" on the Internet. Almost all wondered why the government didn't move as aggressively to tackle the real problems many of them see every day.

Jim from Kansas City, 14, writes: "I don't feel I need protection from the Internet. Why hasn't anybody asked kids like me? I'd love to go in front of the Supreme Court and tell them how great the Internet is. My parents taught me not to give out my name, address, or send anything to somebody I don't know. They taught me that when I was 10. I've been approached once by somebody who asked me if I wanted to send him some pictures for money, and that was in a Usenet group. I said no. It's obvious that wouldn't be a good idea."

Patricia from San Jose, 16: "They say this law is supposed to protect me, when it would put me in jail for talking with my camp roommates about sex? Who are they kidding? They aren't trying to protect me. They're trying to control my life and keep power for themselves. I'm not stupid. I can take care of myself. Why don't they take care of people with real problems?"

Donna, 15, from Philadelphia: "I have rights. I have freedoms, too. Why are all these old white men telling me what is moral for me?"

Arrow from New York City, 9: "The Internet is a great place. I'm not scared of it all. Nobody has ever showed me a dirty picture, and I wouldn't give anybody my address or telephone number, and nobody has asked. I go into AOL chats, and I've seen dirty words, but I used them anyway, before I ever went onto a computer. The kids in my school use them. I don't think that hurts me. Mostly on-line I email my pen pals from other countries and go onto movie and TV Web sites and play games. My life is so cool since the Internet. I do my homework there, too."

Heather from Minneapolis, 14: "Kids in my school form gangs. They carry guns. Guns are easy to get, but they want to make it a crime to talk dirty on the Internet? Brother! These kids really hurt each other, because they don't have parents who will take care of them and watch out for them. My parents watch out for me. They got me a computer because my mom didn't want me to have trouble getting into a good school and getting a good job. She did it because she loves me. She had to work hard to buy me this computer. If these people in Washington want to help kids, why don't they train them to find jobs, and take guns off the streets, and make it a crime to have children when you can't take care of them. If they try to tell me what to say on a computer, they'll be surprised, because my friends and I will never let them do that. I can speak freely on the computer. I can't in school. They should be ashamed of themselves."

JimmyD from Arkansas, 12: "No wonder everybody hates Washington. They're incredibly stupid and clueless. Penthouse isn't dangerous for me. Getting killed by a gun is dangerous to me. Don't they have anything to do there but to worry about whether I use dirty words? My father yelled at me and asked me if I ever looked at Playboy on-line. I asked him if he ever looked at Playboy when he was my age, and he sent me to my room. There are a lot of hypocrites in the world. And most of them live in Washington. That's what the CDA teaches me."

Patricia from Brooklyn, 12: "There are a lot of scary people in the world, I think. My friend Arquette was shot in the street. But a computer (her grandmother bought her one) is the safest thing I do. I love it. I can get dirty pictures anywhere. But on-line, I have new friends from everywhere. I can handle some dirty words. Bullets and knives scare me."

Andreas from New Orleans, 11: "What's with these people, man? I do homework on-line. I use my computer to write. I have friends from all over the world, and I live in a tiny apartment! If I use a dirty word OK, I've seen some naked women - is that a crime? Why can't I look at a picture of a naked woman? I get good grades. I don't hurt anybody. I don't need protection from the FBI when I go on-line. My dad told me never to give out my phone number or the place where I live. I don't. That ain't hard."

Sandy from Chicago, 13: "My biggest fear? No jobs when I grow up. My sister has been looking for work for five years. It's hard out there, she says. The Internet isn't scary. It's fun and interesting. There's sexual stuff out there, sure. But you don't have to go looking for it, and you can avoid it. My mom told me if I ever see anything I don't like or understand, turn the computer off and go get her. That's pretty easy. Five kids got beat up at the school dance last week. One of them had a knife. That's scary. I'd take a computer anytime."

According to the Center for Missing and Exploited Children, fewer than 30 young people have been harmed as the result of on-line encounters in the history of the Internet, which encompasses billions of interactions involving children every week. Of these, most were adolescents and teenagers who were drawn into dangerous and unhealthy relationships. In l995, nearly 5,000 American children were killed by guns, which are available from Wal-Mart and other fine stores.

Copyright © 1994, 1995, 1996, 1997 HotWired, Inc. All rights reserved.

Appendix 2



This is to advise you that the study on content-related Internet liability, "The Cyberspace is not a No Law Land", is now up on Industry Canada's Strategis site and can be reached at: "http://strategis.ic.gc.ca/nme" and in French at "http://strategis.ic.gc.ca/nmd".

The study was commissioned in the summer of 1996. It provides an analysis of how Canadian law applies to content-related Internet liability in the areas of copyright and trade-marks, privacy and defamation, obscenity, child pornography and hate literature. The four consultants who conducted the study are:

Michel Racicot, McCarthy Tétrault (Coordinator; e-mail: [email protected]);

Mark S. Hayes, Fasken Campbell Godfrey (section on copyright; e-mail: [email protected]);

Alec R. Szibbo, Gowling, Strathy and Henderson (sections on obscenity, child pornography, hate literature and trade-marks; e-mail: [email protected]);

Pierre Trudel, Faculty of Law, University de Montreal (section on civil liability; e-mail: [email protected]).

In separate sections, including a 23 page summary, the 300+ page document can be, using Adobe Acrobat, both accessed on site, as well as downloaded and accessed on individual computers. For those who have not yet installed it on their computer, Adobe's software is available free of charge, through the Strategis site, from Adobe's site ("http://www.adobe.com").

We expect to soon finalise the study in HTML, allowing access on site with hyperlinks and search capabilities. By end of April, hard copies will be made available to the Managers of the Government's Depository Services Program for distribution to libraries and universities across Canada.

We wish to thank those of you who have shared views with the consultants and expressed interest regarding these issues by visiting Industry Canada's Strategis site.

The views in the study are those of the authors and do not necessarily reflect government policies. Businesses and individual Canadians may leave their views and concerns regarding the study and content-related Internet liability, either on site, by e-mail to "[email protected]" or by writing to:

Content-Related Internet Liability
Information Technology Industry Branch
Industry Canada
Journal Tower North
300 Slater
Ottawa, Ont.
K1A 0C8

We will share any correspondence with departments involved. Your comments and views will assist in analysing the results of the study and in making any recommendations with respect to existing policies or legislation.

Appendix 3


The following is from http://www.internet.at/press.htm.

Vienna, Tuesday, 24 March 97.

 The Trigger for the action " Austria goes Offline"

On Thursday, 20 March 97 at 10:45, the Austrian Internet Service Provider ViP was raided by seven law enforcement officers of the Vienna Wirtschaftspolizei (Commercial Branch of the Police) and two expert overseeers. In the course of the proceedings, all computers essential to the existence of the organization were confiscated and most of the services of ViP were thereby disabled. The cause for this action were charges against "unknown" that were filed in Munich, Germany in March 1996 (!) because a customer of the Internet Service Provider had disseminated material in the Internet that was in violation of Austrian child pornography Legislation. (paragraph 207a StGb)

The alarmingly incompetent behaviour of the officials who had acted more than a year later, even though electronic messages are typically deleted after a few days, is cause for concern to all Internet users in Austria. Even though there was no imminent danger, the sender was known to the office of public prosecution at the time and ViP was not under accusation, all computers with hard disks were confiscated - even those not connected to any network.

  What can the Internet Service Provider control?

Internet Service Providers look after the interconnection of computers connected to the global internet and the transport of data within this Network. Since not all users are permanently connected to the internet, their data is temporarily stored - often for a very short period of time - on the computers of the providers. The amount of data that accumulates in this fashion is enormous: the more than 27,000 available news groups alone and the temporarily stored www-pages take up more than 40 gigabytes of storage room at the largest providers. This is equivalent to more than 20 million standard letter pages per provider.

Hence, content control of such information quantities by the internet service provider is not reasonable nor is it possible. The editorial responsibility resides solely with the originator of the information.

The internet has come to be an integral component in the daily routine of many companies and private citizens. Its availability directly affects the competitiveness of a country.

  Confiscation and Austrian Jurisdiction

The legal framework for Internet Service Provider is largely undefined in Austria. According to the interpretation of the Austrian Ministry of Justice, the provider's direct liability for illegal content is based on the fact that by offering access to the net, the provider gives access to sources of danger. They are responsible for content control and legal concordance. Hence, providers are directly liable and culpable if they omit to control content. This interpretation is contestable. Non-contestable is the legal situation in case of confiscation.

Austrian law (P.142 Ch.1 StPO (criminal prosecution act)) regulates confiscations, disallowing any unnecessary attraction of attention or any unnecessary disturbance to those affected. The Reputation and privacy of the affected are to be protected as much as possible. Moreover, it is stated that only items that can be of importance in the case can be confiscated.

A confiscation can only be made if previous questioning of the suspect neither produced evidence nor eliminated suspicion, or in the case of imminent danger.

In the present case, no employee at ViP was questioned. There was no imminent danger since the contents in question had not been present on the provider's computers, or in fact the whole Internet, for a year. The "due care" advocated by the law was not afforded either, since police forced the abrupt turning off of the equipment, which can lead to damage and data corruption.

 Austria goes Offline

Because of this situation, the Austrian Internet Service Providers want to alert the public, politicians, and officials that it is impossible to maintain internet services within the current legislative framework. To clearly demonstrate the consequences of the present legal interpretation of internet service operation, all Austrian internet services will be shut down on Tuesday, 25 March 97, from 4:00 to 6:00 p.m. CET. This means that Austria will not be reachable via the internet worldwide during this time

  Propositions for Solutions and Cooperation

The Austrian Internet Service Provider condemn the distribution of illegal content in the internet and will continue to cooperate with the investigating officials - as they have in the past.

The ISPs believe that the individual originator is responsible for the information disseminated. This is clearly stated in the terms of the ISP's General terms of Trade. Blocking of contents must be mandated by a sufficiently authorised legal institution, such as a judge.

Extending their existing level of cooperation with the authorities, the ISPs offer to connect the responsible judicial authority to the Internet at no cost and to educate their officials in the use and the nature of the Internet. Moreover, the ISPs offer their assistance in the formation of an Experts' Commission.

The Association of Austrian Internet Providers, currently being established, plans to create an Internet Coordination Office that would accept alerts regarding illegal content and would cooperate with the authorities in addition to coordinating these issues among the providers.

Appendix 4


The following letter was sent by Human Rights Watch to the Vietnamese Prime Minister:

By Fax: 202 861 0917
March 17, 1997

Mr. Vo Van Kiet, Prime Minister, Socialist Republic of Vietnam
Mr. Do Muoi, Secretary-General of the Vietnam Community Party

Dear Prime Minister & Secretary-General of the Vietnam Communist Party,

We are writing on behalf of Human Rights Watch/Asia to express our concern over the recent decision by the government of Vietnam to establish strict controls on Internet use.

Under a new decree which we understand will take effect March 17, the government will manage domestic use of the Internet, supervise all Internet content, and control international links between Vietnamese users and the World Wide Web.

This decree may have unfortunate consequences for Vietnam, as it comes at a time when the government is trying to foster high-technology and export-oriented industries. It will prevent Vietnamese citizens from gaining inexpensive access to the Net through a server outside the country and thus prevent them from exchanging ideas on how to integrate Vietnam's economy into global market. It will also narrow the opportunity for international communications and exchange of ideas on topics that could benefit Vietnam's development. Internet, as it exists today, provides one of the best way for scientists and academicians to share knowledge globally and learn from each others experiences. Any attempt to control the content can discourage free flow of information even among this community.

The Vietnam government's own use of Web pages demonstrates how the Internet can be used to propound a particular point of view. Its citizens, so long as they are not using their site for purposes incompatible with freedom of expression, for example, inciting violence, should have the same opportunity to share views as their government.

As stated in Article 19 (2) of the International Convention on Civil and Political Rights, to which Vietnam is a party:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art or through any other mediam of his choice.

We hope that the Vietnam government will retract these new regulations and support the development of an unfettered Internet.


<signed> Dinah PoKempner (Deputy General Counsel)

<signed> Jagdish Parikh (On-line Research Associate)

Madeleine Albright, Secretary of State,
Steve Coffey, Deputy Assistant Secretary of State for Democracy, Human Rights and Labor
2201 C St. NW
Washington DC 20520.

Gopher Address://gopher.humanrights.org:5000

Listserv address: To subscribe to the list, send an e-mail message to [email protected] with "subscribe hrw-news" in the body of the message (leave the subject line blank).

Human Rights Watch
485 Fifth Avenue
New York, NY 10017-6104
TEL: 212/972-8400
FAX: 212/972-0905
E-mail: [email protected]

Appendix 5


The following is a report posted by Kenneth Neil Cukier:

To follow up on an earlier post regarding a French government-sponsored committee drafting self-regulatory guidelines for the Internet, I have some bad news.

The voluntary guidelines are pretty much a mandate for legitimised censorship. The participants of the committee don't seem to be hoodwinked at all -- many hate the policy. But it is uncertain whether the opposition will be capable of thwarting its initial implementation, set for mid-April.

The charter is available on-line, in French, at: www.planete.net/code-internet A joint press release by two opponents of the charter, also in French, is at: www.citadeleff.org (or) www.aui.fr

The charter calls for a standing committee to be formed from the French Internet community to monitor adherence to the "self-regulations" -- of which one plank requires ISPs to block access to sites that are deemed "illicit." Sites located outside the country that violate the charter will also be blocked. If ISPs don't, I'm told by the chairman of the committee, Antoine Beaussant, they risk criminal penalties.

Mr. Beaussant said that a host of French ISPs as well as US on-line services operating in the country have agreed to go along with the charter. Personally, I'm suspicious of that claim, but haven't yet contacted the companies myself.

An influential French senator working on cyber issues told me that he supports the plan, noting that the policy only makes illegal on-line that which is already illegal offline (e.g. child pornography, illegal drug e-commerce, etc.). The charter also treats all users as publishers themselves, since the Internet is a medium that allows for this easily. So an implication of the policy is the US-worded "chilling effect" on speech, or so it seems -- which of course is moot in the country.

Many French organizations have criticised the charter, however they seem torn over how to react. The conflict is the classic one for negotiations: Do you leave the discussions in dissatisfaction to symbolically make a point, hope that your refusal to continue generates a re-working of the plan or may free you from being pulled into its orbit of adherence? Or do you diplomatically recognise the work, reject it, but continue to remain a part of the detested committee in hopes you can influence it to create a better document?

Of the organizations denouncing the plan, for various reasons and in varying degrees, is CITADEL-Electronic Frontiers France, the Association of Internet Users, Internet Society France, and the French Association of Internet Professionals. I have been told that an association of on-line publishers supports the plan, but this is not confirmed.

It is too early to say whether the charter will remain, or what the implications of it are in the country. Yet internationally, other than being used as a symbol by governments hoping to create similar policies, the fallout might be small. Indeed, France has an awful reputation in many fora as the country that has to do everything independently, differently, and then force it on all the rest. Other European countries may balk.

But then again, Belgium supported France's request last fall that the OECD examine on-line content issues, Germany is drafting censor-legislation, and the US government may look to an "Internet community-based" solution if the CDA, or aspects of it, is struck down by the Supreme Court.

Ultimately, I see no paradox that the country with a heritage of liberty wishes to censor the Internet. Modern-day France is in some respects a "Singapore-on-the-Seine," and the Frenchman has often accepted giving up certain rights for other values. For instance, police have the right to demand a person's identification regardless of having cause. In a country where terrorism is growing, Parisian Metro riders might actually welcome this. So too the Net, a majority of citizens may be willing to defer to the government-organised "self-regulatory" committee to set rules for what they can access -- or simply complain about the rules they are unable to change due to a headstrong government.

Keep in mind that Voltaire, the "Declan McCullagh" of his day, scrambled to Geneva!

-- Kenneth Neil Cukier

(These views are personal. The analysis does not interfere with my capacity for balanced reporting of events.)

Appendix 6

Parliamentary Human Rights Foundation

The following is a letter from the Parliamentary Human Rights Foundation to CU Digest:

Date: Thu, 6 Mar 97 21:58:38 -0800
From: Paul W. Meek, [email protected]
Subject: Open Internet Policy Principles

I hope I'm sending this to you correctly, and that you and readers of CU Digest will find this of interest.

Please let me know if you need any further information.

Paul W. Meek
Vice President
Parliamentary Human Rights Foundation

Voice: (202) 333-1407
Fax: (202) 333-1275

Open Society Institute - Regional Internet Program

Parliamentary Human Rights Foundation

News Release            Contact:  H. Juergen Hess, OSI-RIP

                                  Public Relations Director

                                  tel. (212) 887-0602

FOR IMMEDIATE RELEASE             fax (212) 974-0367

[email protected]

"Open Internet Policy Principles"
Adopted by Group of International Experts

March 5, 1997 -- New York/Washington, D.C. -- The Open Internet Policy Principles, a set of recommendations to guide the use of the Internet and related technologies, were adopted today by a group of international experts*. These Principles are intended as a framework for government officials, parliamentarians, and nongovernmental organizations as they consider the impact of the Internet in their own and other countries. The experts included European and American parliamentarians, government officials, nongovernmental organizations, and the academic and business communities.

In its Preamble, the Principles state (full text attached): "The Internet is an inherently open, decentralised communications infrastructure which is ideally suited to support the free exchange of ideas, a rich political discourse, and a vibrant economy."

With regard to policymaking and the Internet, the Principles point out that policymaking ought to be undertaken "by policymakers who are well informed about the unique nature of the net and have direct experience with its use; and, with substantial input and comment from the user community."

Other Principles address the following subject matters:

* Access to Infrastructure: "Access to the global Internet and other interactive communications infrastructures is essential for all citizens of the world to enable full participation in the global society and developing digital economy;"

* Freedom of Expression: "There should be no regulation of Internet content by government;"

* Communications Privacy: "Users of the Internet should have the right to be free of unlawful government interception of or access to communication and information on-line;"

* Right of Anonymity: "Users should have the right to communicate without disclosing their identity;"

* Unfettered Right to Use Encryption: "Users should have the right to use any form of cryptographic technology they choose to protect the privacy of their communications;"

* General Legal Framework: "The Internet does not exist in a legal vacuum. For the most part, existing laws can and should regulate conduct on the Internet to the same degree as other forms of conduct. Such laws may differ from country to country, but should conform with the applicable binding human rights obligations contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights;"

* Objectionable Content: "To enable Internet users to shield themselves and their families from objectionable or unwanted content, priority should be given to 'downstream filtering' by users;"

* Civil and Criminal Law Enforcement: "(...) combating on-line crime, while protecting civil liberties, can best be accomplished with additional resources and training of law enforcement agencies, not by enactment of new laws;"

* Access to Government Information: "Governments should enable citizens access to legislative, judicial and executive branch information through the Internet;"

* Overseas Development Assistance: "Overseas development assistance programs should strive to promote full access to the Internet;"

* Market Structure: "There should be no a priori limitation to market entry by Internet service providers (...)."

The Principles are based upon the results of a conference organised by the Parliamentary Human Rights Foundation (PHRF), Parliamentary Human Rights Foundation/Europe (PHRF/Europe) and the Regional Internet Program of the Open Society Institute (OSI-RIP) held in Brussels, Belgium on November 23, 1996. (An Annex with diverging opinions is attached to the Principles.)

"The Open Internet Policy Principles are the first phase of a larger project. As a next step, a case study will be undertaken of the telecommunications framework in Estonia, Latvia, and Lithuania, to apply the principles developed in Brussels to the particular circumstances of these emerging democracies," explained Don Bonker, Chairman and President of the Parliamentary Human Rights Foundation and a former Member of Congress. Representatives from these nations participated in the drafting of the Principles and the Brussels deliberations.

"We hope that the Open Internet Policy Principles will lead to the development of model legislative and regulatory frameworks with global application," added Maartje van Putten, PHRF/Europe's Chair and Member of the European Parliament from the Netherlands.

Jonathan Peizer, Chief Information Officer of the Open Society Institute clarified why the Baltic countries were chosen: "They are the most progressive countries with regard to use of the Internet in Central and Eastern Europe. OSI-RIP has been funding Internet-related activities in those nations since 1994. This, however, is our first major policy initiative for the Internet."

The Parliamentary Human Rights Foundation (PHRF) is a worldwide, voluntary, non-partisan, not-for-profit organization committed to the promotion of human rights. PHRF works directly with parliamentarians to: enhance understanding of the meaning and importance of human rights; strengthen institutions for the protection of human rights; improve access to information about human rights conditions; foster international cooperation in the promotion of human rights; offer training and technical assistance to human rights advocates, especially parliamentarians; call attention to human rights abuses that violate internationally recognised standards; and nurture constitutional democracy, the rule of law, and other protections of human rights. PHRF can be found on the World Wide Web at <http://www.phrf.org>.

The Open Society Institute--New York is a private operating and grantmaking foundation that promotes the development of open societies around the world, both by running its own programs and by awarding grants to others. The Open Society Institute--New York develops and implements a variety of U.S.-based and international programs in the areas of educational, social, and legal reform, and encourages public debate and policy alternatives in complex and often controversial fields. The Open Society Institute--New York is part of an informal network of more than 24 autonomous nonprofit foundations and other organizations created and funded by philanthropist George Soros. The Open Society Institute can be found on the World Wide Web at <http://www.soros.org>.

# # #

*Experts included representatives from: European Commission, European Parliament, Netscape Communications Corp., Oracle Corp., Ministry of Education and Science (Latvia), Ministry of Transportation and Communications (Estonia), Ministry of Transportation and Communications (Latvia), Electronic Frontier Foundation, American Civil Liberties Union, Voters Telecommunications Watch, Electronic Privacy Information Center, Computer Professionals for Social Responsibility, Center for Democracy and Technology, Riga Information and Technology Institute (Latvia), PT Finland, Baltic Institute of Finland, University of Leuven (Belgium), University of Groningen (Netherlands), Villanova School of Law (USA), Ghent University (Belgium), Levicom Ltd. (Estonia), Xs4all Internet BV (Netherlands), National Criminal Intelligence Service (Netherlands), Open Society Institute/Soros foundations network, Parliamentary Human Rights Foundation, and Parliamentary Human Rights Foundation/Europe.


Brussels, Belgium 23 November 1996


A broad consensus was reached on the following points:


The Internet is an inherently open, decentralised communications infrastructure which is ideally suited to support the free exchange of ideas, a rich political discourse, and a vibrant economy. The decentralised architecture of the Internet provides an abundance of communication opportunities, and gives users an unprecedented degree of control over the information that they receive. As organizations devoted to basic human rights, the growth of the Internet, and the flourishing of democratic culture, we believe that the foregoing principles will ensure that the Internet remains open and continues to support basic democratic values.

I. Policymaking and the Internet

In recognition of the novel and rapidly changing nature of the Internet, policymaking ought to be undertaken:

* by policymakers who are well informed about the unique nature of the Internet and have direct experience with its use; and,

* with substantial input and comment from the Internet user community. II. Internet Access and Market Structures

A. Access to infrastructure

1) Access to the global Internet and other interactive communications infrastructures is essential for all citizens of the world to enable full participation in the global society and developing digital economy.

2) Government and the industry have a shared responsibility in building the Global Information Infrastructure ("GII"), and in ensuring as wide an access as possible to its services.

3) Competition, open systems and interoperability are the best way to enlarge access.

4) In particular, access to the Internet by schools, libraries and other public institutions should be viewed as a policy goal, subsidised as necessary.

B. Access to Government Information:

1) Governments should enable citizens access to legislative, judicial and executive branch information through the Internet. Such access should be backed up by a legal right to public information, without any showing of need or intended use. Such information should be available in standard formats to promote broad and effective access.

C. Market structures

1) There should be no a priori limitation to market entry for Internet service providers (ISPs), and ISPs should not be prevented from using or establishing their own terrestrial or wireless infrastructure.

2) In particular, licensing should not be used as a method of restricting market entry.

3) ISPs and other intermediaries have responsibilities, but those responsibilities should be enforced other than through licensing mechanisms.

D. Overseas Development Assistance

1) Overseas development assistance programs should strive to promote full access to the Internet. Such programs should include support for the development of public policy environments consistent with these Open Internet Policy Principles, and adequate resources for training and ongoing support.

III. The Rights and Responsibilities of Internet Users

Internet users have rights and responsibilities which should shape the way the law addresses the Internet.

A. General Legal Framework

1) The Internet does not exist in a legal vacuum. For the most part, existing laws can and should regulate conduct on the Internet to the same degree as other forms of conduct. Such laws may differ from country to country, but should conform with the applicable binding human rights obligations contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

2) The legality of publishing activity on the Internet should be judged according to the law in the country in which the publisher originally acts to publish the material. While this "law of the place of origin" is consistent with the "Television Without Borders" policy of the European Commission, strong public policies in places of reception may necessitate negotiation of an international convention on this choice-of-law question.

B. Objectionable Content

1) To enable users to shield themselves and their families from objectionable or unwanted content, priority should be given to "downstream filtering" by users. There should be no government censorship of Internet content.

2) Filtering should empower users to be responsible for the content they access.

3) Filtering can promote freedom of choice through a variety of rating systems.

4) Filtering systems should make clear what sites they block (or select) and what criteria they use to block (or select) sites.

5) Access to multiple 3rd party content labeling systems, as opposed to government censorship, can support the great diversity of cultural and moral values of Internet users around the world.

IV. Law, Human Rights and the Internet

Legal regulation of the Internet should implement the foregoing principles relating to rights and responsibilities of Internet users, while also recognising international human rights law and legitimate national law

enforcement interests.

A. Freedom of Expression

There should be no regulation of Internet content by government. We understand the fundamental rights of freedom of expression, as embodied in Art. 19 of the Universal Declaration of Human Rights ("Everybody has the right ... to seek, receive and impart information and ideas through any media and regardless of frontiers" ) and in Art. 19(2) of the International Covenant on Civil and Political Rights ("Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form or art or through any other media of his choice") -- to apply with

full force to Internet communication.

B. Civil and Criminal Law Enforcement

Enforcing existing laws in the international Internet environment raises specific challenges. In general,combating on-line crime, while protecting civil liberties, can best be accomplished with additional resources and training for law enforcement agencies, not by enactment of new laws.

In carrying out their duties, law enforcement agencies should:

*be fully aware of the unique characteristics of the Internet; *adhere to internationally recognised principles of human rights; *have the resources necessary to adopt appropriate technologies; and *co-ordinate with other law enforcement agencies across international boundaries.

Law enforcement activity should be guided by the following principles:

1) Law enforcement agents should only conduct investigations or surveillance in public on-line fora pursuant to public and officially approved investigative guidelines, which provide adequate protection for individual freedom of association and political activity.

2) Governments should not monitor individual Internet users for civil or criminal investigatory purposes nor collect information on the way they use the Internet, except pursuant to a judicial process that is consistent with internationally recognised principles of privacy.

3) Governmental searches or seizure of electronic communications should not be conducted, except pursuant to legally authorised procedures, that require that there is sufficient evidence that the user is engaged in illegal activity to justify the search. Any such search should be supervised by an appropriate detached and neutral judicial officer.

Any search should be narrow in its scope and effect.

C. Communications Privacy

Users of the Internet should have the right to be free of unlawful governmental interception of or access to communication and information on-line. Protection of this right entails:

1) Right of Anonymity: Users should have the right to communicate without disclosing their identity. Anonymous communication is critical to assure basic rights of freedom of association and to protect an open political process. By the same token, anonymous communication is not traceable by law enforcement. Thus, we recognise that some criminal investigations may be made more difficult. As the Internet develops, we believe that some

services will develop that support anonymous speech, while others will require identification. Choice among various levels of identification should be made by the users involved, not dictated by law.

2) Unfettered Right to Use Encryption: Users should have the right to use any form of cryptographic technology they choose to protect the privacy of their communications. Users should not be compelled to guarantee in advance law enforcement access to communications through key escrow, key recovery or other mechanisms.

3) Freedom from Unlawful Access to Information in Storage or Transmission: No user should be subjected to governmental search or seizure of electronic communications except pursuant to legally authorised procedures, supervised by an appropriate detached and neutral judicial officer.

4) Users should have better notice and choice over the use of personal information by others. User empowerment approaches can also address these information privacy issues in interactive system environments.

(end of Final Open Internet Policy Principles Document)

Annex to the Final Open Internet Policy Principles Document

When there was a difference of opinion among conference participants as to a particular Principle, a vote was taken, with the majority view prevailing. All conference participants agreed that views not prevailing would be included in an Annex to the Final Document.

There was a majority vote by conference participants in favour of removing the following draft Principle from the Final Document:

Responsibility for content on the Internet should rest with the author of the content. It is crucial to identify accurately the chain of responsibilities. Originators of content should be responsible for the content they put on the Internet - not access providers, network operators, storage facilities or other intermediaries. When anonymity makes it impossible to fix responsibility on the author or originator, responsibility should rest with the last first identifiable individual or entity in the chain of distribution, closest to the author or originator, who had an opportunity to accept or decline anonymous material.

Professor Hank Perritt of Villanova University Law School has provided the following opinion in support of the draft Principle above that was removed from the Final Document:

There is a tension between protecting anonymity and protecting intermediaries from liability. The best rule would be to protect intermediaries from liability as long as it is possible to identify the originator or author of a communication. If an intermediary handles anonymous communications, however, the only choice is to let a victim of a harmful communication bear the loss or to shift the loss to the intermediary. As between the innocent victim, who has no choice, and the intermediary who has a choice whether to accept anonymous communication, it would be preferable to hold the intermediary liable. Accordingly, I would favour an immunity for intermediaries but only as to non-anonymous messages or other items of information content.

Two conference participants,Christopher Kuner, Attorney-at-Law, Gleiss & Partners, Germany (on behalf of Netscape Communications Corporation) and Professor Hank Perritt of Villanova University Law School, have expressed reservations about Principle III(A)2 in the Final Document:

Christopher Kuner: Principle III(A)(2) is unclear, legally questionable, and does not reflect our discussion at the conference. In particular, I would like to point out the following:

(1) The wording of this principle is unclear; just what is "the country in which the publisher originally acts to publish the material" when, for instance, an Internet user transmits material he has authored to a server in another country, from which it can be accessed over the net?

(2) The principle is inconsistent with the rest of the draft. Under this language, the conduct of someone sitting at a computer in Iran who publishes a web page saying "Khomeini was a liar and a crook" should be judged based on Iranian law, whereas in Article III(A)(1) we talk about "binding human rights obligations" and in Article IV about "international human rights law", both of which would likely be violated by the sanctions which Iranian law would impose on such a person.

(3) Why does it matter whether or not a document concerned with the Internet is consistent with EU television policy?

(4) The law of most countries and international law provide for the possibility of law being applied to conduct outside the borders of the jurisdiction which enacted it when such conduct produces a harmful effect in the jurisdiction. I may not always agree with this approach, but find that Article III(A)(2) simply glosses over this principle without explaining why it should not apply in the case of the Internet.

(5) The choice of law provision embodied in Article III(A)(2) was mentioned in the closing minutes of the conference as an afterthought, and we never had a chance to discuss it. The subject of choice of law in the Internet is extremely complex, and I object to taking a position on it when we never had a chance to consider it properly.

Professor Hank Perritt: Choice of law is tricky in Cyberspace. International law arguably permits both the country of origin (under the principle of subjective territoriality) and the country of receipt (under the principle of objective territoriality) to regulate content on the Internet. There is precedent for both approaches. The "Television Without Borders" document from the EC adopts the country-of-origin approach, making content legal anywhere if it is legal in the country of origin and presumably illegal anywhere if it is illegal in the country of origin. The UN General Assembly resolution on direct broadcast television adopts the country of receipt approach, making the content legal if it is legal in the country of receipt, and presumably illegal according to the local law of the place of receipt as well.

Neither of these approaches is perfect. In the long run, it would be better to harmonise content rules, and efforts should begin now to narrow differences on content regulation, recognising a general preference in favour of freedom of expression, as noted in the principles.

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