Censorship Triggers Liability: UK ISPs Need To Be Sued Way Out Into Atlantic

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Internet Service Providers in the United Kingdom have started censoring the Internet wholesale by default. This is a horrible transgression against the free exchange of ideas, cheered on by authoritarian politicians. However, there is an important weapon built into the legal framework against this kind of censorship, and it’s high time to use it in full scale.

To protect Internet Service Providers (ISPs) from legal liability for the information that travels in their wires, the United States has a concept called Common Carrier, and Europe has a similar concept called Mere Conduit. In essence, it means that as long as an ISP stays entirely transport-neutral, then it is not liable for anything transmitted through its wires, in pretty much the same way that a mailman is never responsible for the contents of a carried sealed letter.

However, this Mere Conduit shield doesn’t come for free. More specifically, as outlined in the European Union’s e-commerce directive, there are three strict conditions that must be met for the liability shield to kick in. In essence, it’s transport neutrality. Quoting from the Wikipedia article:

Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission.

Let’s look at the most relevant part once more, in the conditions required to not be liable for what you carry on your wires as an ISP:

does not select […] the information contained in the transmission

Do you see what has happened here? With censorship, any censorship at the ISP level, that ISP starts selecting what information can be contained in the transmission and what information cannot. It doesn’t matter if it greenlights 99.9999% of requests or 99% or 50% or just 1% – anything short of the full one hundred per cent means that the ISP is sorting information into “allowed” or “disallowed” and therefore selecting the information contained in the transmission. Transport neutrality is an “on” or “off”, it doesn’t come in grayscales.

The UK ISPs have instituted a full-on censorship regime, where – unless you take active steps to circumvent or disable it – they are disallowing information from news sites like TorrentFreak (which is an absolutely horrible attack on the freedom of ideas). The United Kingdom is now actively sorting political ideas into allowed and disallowed, just as we said would happen from day one of this political censorship regime – for that’s what it is, and nothing else.

In doing so, UK ISPs have given up their Common Carrier and Mere Conduit liability shield.

I don’t think any ISP in the UK considered this effect, but the Mere Conduit legislation is and has been one of the strongest weapons we’ve had against censorship: any ISP that starts sorting the Internet into allowed and disallowed becomes liable. “Becomes liable”, as in becomes liable for all of it.

Any UK ISP taking part in the censorship regime is now legally liable for everything, everything, that goes through their wires.

They need to be punched as hard as the law will allow for hurting the open society to this degree. They need to get a ton of bricks dropped onto them.

The UK ISPs need to be sued for every single thing on the Internet. They are liable for it now, having thrown their liability shield aside to institute censorship. They need to be sued way out into the Atlantic as punishment for hurting the Net and their customers to this degree, each and every one of them.

Rick Falkvinge

Rick is the founder of the first Pirate Party and a low-altitude motorcycle pilot. He works as Head of Privacy at the no-log VPN provider Private Internet Access; with his other 40 hours, he's developing an enterprise grade bitcoin wallet and HR system for activism.

Discussion

  1. Peter N. M. Hansteen

    One other data point (or actually a small collection) – before O2 closed down the little window into their filtering regime, I stumbled upon their ‘URL Checker’ and did a bit of semi-random checking.

    What I found was t that under their regime, *all* material I have produced as well as a few interesting sites such as Amnesty International, OpenBSD.org, Linux.com and a few others were blocked by default in their ‘Parental control’ regime.

    Full article, updated as we went along and with a wonderfully non-responsive response from O2 is at http://bsdly.blogspot.com/2013/12/the-uk-porn-filter-blocks-kids-access.html

    Peter N. M. Hansteen

    1. Chloe

      …The URL checker on O2 is for a parental filter, an opt in whitelist, so most sites/etc aren’t on there. The porn filter is a level up from that.

      1. Adam

        Mainly so, but not exclusively. Their handling of Wikipedia pages is a case in point:
        http://pseudomonas.dreamwidth.org/120535.html
        There may be other sites treated like that, but we don’t know, they haven’t told us, and the checking website is now down.

    2. TG

      Perhaps they confused BSD with BDSM πŸ˜‰

  2. Edmund Edgar

    Very interesting strategy.

    The weird thing watching the bitcoin space is that there are all kinds of areas where the regulatory environment seems to enforce decentralized design and transaction neutrality. You want to run an exchange? You’ll be tied up in red tape and dropped in the sea. Build a _decentralized_ exchange? The government isn’t interested in you. Run a mining node in a p2p network? Fine. Try to take over 50% of the network so you’re effectively running it? Congratulations, you’re a financial intermediary. Are you sure you’ve considered the cost of regulatory compliance?

  3. mr litigant

    excellent article, Time for a class action, or is death by a thousand cuts on the menu? are we going to organise this, or pursue it individually? how do you know what your not recieving and how do you evidence it to be compensated for your material loss?

  4. Vracktal

    I thought the ISPs were only going through with filtering because Cameron threatened to force them through legal action? If I remember right they specifically said they didn’t want to do it because it would cost them their mere conduit protections…?

  5. Lets Protest

    Well,
    Sooo … does this make it the ISP responsibility for anything that gets pirated or downloaded ?
    If so … YAY. Lets all mass protest and pirate as much as we can since our ISPs are now responsible let them be TOTALLY responsible.

    1. Autolykos

      That’s actually a good point. If the ISPs censor illegal content, then I can, as a user, assume anything I find online to be legal. Surely nobody can demand that I know the law better than the company lawyers of a large ISP.

    2. gurrfield

      Well people could build their own inter networks. Neighborhoods connecting their wifis to each other in a big web… Whole cities could have their own various inter networks on decentralised private basis.

      I’ve started to think that the early heavy investments in hardware infrastructure (fiber) we had in Sweden was mainly to be able control and surveille the traffic. They can do that if they have physical access to the big fiber cable junctions. But only if people really use it…

  6. David Collier-Brown

    In particular, charges for anything that’s already illegal should be accompanied by suits against the carrier. That engages the people who normally would work against us to strik out at the ISPs who tey to “help” them via censorship.

    To use a Canadian-flavored example, the parents of a minor bullied into suicide by the publishing of nude photos of her would have standing to sue a censoring ISP who field to censor her picture. They would naturally think they were as much requiring more effective censorship as they were arguing that the ISP shouldn’t censor.

    A piratically-minded solicitor could make a good income doing this, bring monetary relief to the parents, and a sharp raw with a clue-stick to the ISP.

    –dave

  7. Paul L

    If what you said were a viable strategy, it would be a handy tool, but I can see a potential problem.

    You say: “Any UK ISP taking part in the censorship regime is now legally liable for everything, everything, that goes through their wires,” but I don’t think that is necessarily true. The directive says: “Member States shall ensure that the service provider is not liable for the information transmitted, on condition …”

    It doesn’t specify the reverse of that requirement, i.e., it doesn’t say that service providers must be held liable if they don’t meet this conditions. Member states would still be able to absolve ISPs of liability, even if they don’t fully meet the conditions.

    1. Rick Falkvinge

      This is a completely correct observation. I really appreciate people who apply logic properly, like this.

      However, there have been multiple lawsuits against ISPs for liability of “more-or-less-the-Internet”, particularly from the copyright industry and various self-declared morality groups and the mere conduit defense is the most commonly cited. If this particular defense falls, the land is much more uncertain – an uncertainty I would argue that ISPs would not want in the slightest.

      1. Paul L

        Thank you for your comments.

        It would certainly be interesting to see a test case. The judge would be in an incredibly challenging position.

  8. nick

    Libertarians discovered a German article quoting that Taxes are expropriation, and we should live a a state-free society. I left a recommendation for Swarmwise, the only way we can organise ourselves without a state. http://bastiat.mises.org/2014/01/hoppe-taxes-are-expropriation/
    The linked article: http://www.wiwo.de/politik/konjunktur/hans-hermann-hoppe-steuern-sind-enteignung-seite-all/9282336-all.html

    I remember a recent article of yours in which you mentioned that for properties, if someone does not use a space, it should pay taxes otherwise abuses can arise, someone can monopolize too many houses. I didnt understand that right, but I wish to find out what is the right way to limit abuses but not to impose taxes..

  9. c0rw1n

    Ha.. Ha ha ha …

    And where are you going to find a decentralized exchange?

    As in, NO single point of failure?

    Ripple? LOLnope. Open Transactions? They have the opposite problem. Mastercoin? It’s an other scam. p2pox? Doesn’t exist yet.

    There IS no decentralized exchange. There WILL be, some day, don’t worry.

    We’re working on it.

    1. russell

      If you saw the latest Open-Transactions desktop videos, then you know they have decentralized exchange working now.

    2. russell

      If you saw the latest Open-Transactions videos (showing the desktop app) then you know they already have decentralized exchange working.

    3. russell

      If you saw the latest Open-Transactions desktop videos, then you know they already have decentralized exchange working, now.

  10. Ian Farquhar

    No surprise about this: the UK has taken one of its greatest works, George Orwell’s 1984, and is treating it as an instruction manual.

    Every horrible, right-wing, fascist idea has been undermined by successive governments, both Labour and Tory. Another example was the reversal of the right to silence, removed from UK law in 1994. The right to silence is a core tenet of the presumption of innocence, which I am sure the Cameron regime will get to shortly. It makes prosecution so much harder, after all, to actually PROVE someone is guilty, even with the appalling class-chosen judicial system the UK has suffered for decades.

    Let’s not also forget the UK’s disgusting “Official Secrets Act”, or their libel laws which make it pretty much financial suicide to criticize anyone with money or influence.

    Changing the subject slightly…

    FYI, between 1994 and 1999 I worked for a Silicon Valley company called Silicon Graphics, which followed the same principle regarding censorship of its corporate internet: censoring anything was implicitly approving anything which was not blocked. Consequently, it made a decision to block nothing (and indeed, one of the firewall admins at the time did an analysis of porn across the firewall, and concluded it was single digit percentages. She railed against this finding: single digit percentage of traffic was porn? What is wrong with you people? Surely you could manage the low double digits, at least!!!!) Sadly, with the change to a new CEO around 1998, this policy was reverted and the company began active censoring.

    I am proud, however, to have been one of the authors (in 1998 or so) of a corporate acceptable use policy, which specifically allowed freedom of speech and expression (including sexual expression), as long as it was (1) legal where the user was, and (2) did not harm the company’s operations. I believe it is the only AUP in history to be specifically designed to be difficult for a malicious manager to misuse against an employee.

  11. Ian Farquhar

    s/undermined/implemented :)

    Proofreading? What does THAT mean?

  12. Anonymous

    surely it is an option that is being considered by one of the public groups, ORG, for instance? what about a law suit against Cameron himself? he’s the person that instigated this censorship (and you can bet it will contain political sites as the day for the voters to speak draws ever nearer), so surely he is the person that should be sued? they may not have liked doing it, but look at the crap the UK ISPs would have been in had they not done as he told them to do! then remember how far he is prepared to go just to keep his ‘special relationship’ with Obama ticking over nicely. he has basically taken over where the USA left off as far as law suits etc is concerned. that is good for Obama as he is sponsored by Hollywood and the USA entertainment industries!

  13. Anonymous

    i do find it strange though that as this matter goes against what has been set down in the EU courts, why is no one from the EU actually doing anything about it? when they heard what Cameron was planning to do, why was he not stopped, with a warning of the consequences should he continue? it’s almost making the EU and any decision made there comes from a paper tiger. even if it roars, it hasn’t got any teeth let alone the will to bite! and you can bet your life, Cameron is only going to take notice of anything EU issued if he wants to, regardless again of the consequences. he’s got his sights set on grassing the EU up to the Yanks!! he’s already proved this by joining GCHQ with the NSA and both going after EU citizens, from the heads to the lowliest!

  14. Max Pont

    In addition, if you live in the UK and want the 18 year filter removed you need to prove your age. Easy? nopp. If ISPs are to follow Ofcom rules the only approved IDs are UK passports or UK drivers licence. (The mobile operator giffgaff have already implemented this, maybe others as well.)

    Suddenly, all non-UK citizens (less those long term residents who have a UK drivers licence) are treated as children. The following categories of “adult” content are blocked as a default when you get your broadband:

    β˜‘ pornography
    β˜‘ violent material
    β˜‘ extremist and terrorist related content
    β˜‘ anorexia and eating disorder websites
    β˜‘ suicide related websites
    β˜‘ alcohol
    β˜‘ smoking
    β˜‘ web forums
    β˜‘ esoteric material
    β˜‘ web blocking circumvention tools

    Source: https://www.openrightsgroup.org/blog/2013/sleepwalking-into-censorship

    What I find most bizarre and upsetting is that Cameron’s government made an arbitrary decision to ban and stigmatize “esoteric material”. This includes meditation, reiki healing, spiritual self help, occult, and most of New Age. Why is suddenly an entire field of human interest banned. Lobbying by organised religion? Just a test shot to get the public used to the government randomly banning fields that the mainstream find fringe?
    I don’t understand it at all?

    If these rules are enforced, tourists and all foreigners who live in the UK (including the global rich who have a second/third/fourth home in London will be cut off from the Internet.

    Thank you soooo much Daily Mail for your long campaigning of hysterical moral panics in favour of prudery and censorship. Your campaign triggered the Tory government to implement these censorship rules.

  15. Paul

    I don’t think that your argument flies as long as the filter is optional; if people want to have filtered Internet then that is fine, and I don’t imagine you would have any problem with a company that provides filtering as a separate service, so why not fold it all into one to make it easy?

    However there is a separate issue with court-ordered blocks of Pirate Bay and related sites; at this point it seems to become impossible for common-carrier status to exist. So why not attack the problem there?

  16. Frank

    I just stopped paying taxes, and steal where ever possible from corporations. I’m getting the benefits of those rich fuckers without being rich because they take all my money.

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