History repeats in cycles. Hax reminds us of an episode told by Nils Funcke of the Swedish Constitutional Committee, from a time when politicians invented new ways to circumvent fundamental liberties during World War II, and in particular, invent new ways to circumvent the Freedom of the Press.
Swedish politicians were very concerned during WW2 that some newspapers were printing stories that were critical of Nazi Germany, or possibly worse, appreciative of the Soviet Union. They were well aware that they were constitutionally unable to ban the printing of newspapers, so they banned the distribution of those particular newspapers instead (in Swedish: transportförbud).
The ban didn’t work particularly well; while trains, buses and other public transports were banned from distributing these newspapers, volunteers created an amateur distribution network that superseded the commercially-available channels.
The interesting tidbit here is how politicians of the time understood that information is only as accessible as its transportation, which relates directly and immediately to today’s calls for censoring the Internet. While politicians may not constitutionally ban somebody from putting inconvenient information on their own server, they are attacking the Internet Service Providers and requiring them to censor the network.
There is a direct connection between the right to publish information and the right to freely distribute information. One is useless without the other.
So let’s hope history continues to repeat in cycles. The thing that happened after the war was that the next generation of politicians looked back in horror on how the Freedom of the Press had been circumvented, and added constitutional protection not only to the printing of newspapers, but also to their distribution. No public transport institution had the right to deny transportation of newspapers on the basis of their content, regardless of whether the newspapers were obviously illegal. Let’s take that again: the laws were amended so that every information carrier would be required to carry any and all information, and particularly obviously illegal information. In return, they were not liable for the content of what they carried.
This has a direct bearing on today’s attacks on the messenger immunity, mere conduit principle and common carrier principle, primarily mounted by the copyright industry.
These principles, the requirement for an information transporter to be content-agnostic, need to be made technology neutral and updated to reflect today’s information flows. We need to make that happen.