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Sleepwalking Into Censorship: How Internet Freedom Is Under Threat
Ian Maleney , January 23rd, 2014 09:08

With the news that net neutrality has come under threat in the US, Ian Maleney explores the worrying consequences of censorship and restrictive legislation for internet users, from David Cameron's proposed 'anti-porn' filter to ISPs blocking torrent sites

In a US Court last week, the concept of net neutrality received a blow to the head from which it may not recover. Why is this important? Net neutrality is the principle that no content gets preferential treatment on the internet. All data is treated and transmitted in the same way, at the same speed, whether coming from a multi-billion dollar company or from a self-hosted blog. This idea has been a guiding principle in the development of the internet to date, but also something that a couple of big digital players have been fighting hard against. The most active of these are American internet service providers (ISPs) Verizon and Comcast. The Federal Communications Commission is the body set up by US government to regulate companies who provide means of communication to people, originally dealing with telephone companies. ISPs now fall under their jurisdiction.

Verizon have long been challenging the rules they are governed by. Last week, they won a major victory in that battle, forcing the FCC to accept that their application of their own regulations was wrong. You can read the ruling here (PDF).

The fundamental issue in the case is the classification of broadband internet as an "information service" rather than a "telecommunications service". Being filed as the latter would allow the FCC to bring it under the same set of rules that governs the provision of telephone lines - what is known as common carriage. US law states that telephone line providers cannot discriminate between users, and they cannot selectively deny or degrade the service (i.e. you can't pay more to get a better telephone line than your neighbour). It is, in short, a utility, like water or electricity.

However, as broadband internet is an "information service", the rules are much more lax. Instead of the stringent common carrier regulations, broadband internet has been regulated by the Open Internet regulations, formally adopted by the FCC in 2010. There are three main points to these rules: broadband providers must be open and transparent with both users and content providers about their management of network congestion; they cannot block lawful content on their networks; and they cannot exercise "unreasonable" discrimination against traffic on their networks. These are the rules which Verizon successfully challenged last week. Verizon's claim, upheld by the court, was that the FCC had no grounds on which to impose these rules. As long as broadband providers were classed as different to telecommunications providers, statutes that existed to regulate the latter could not be applied to the former:

"Even though the commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such. Because the commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order." (Link)

While the court re-affirmed the FCC's position as regulators of internet provision, with the goal of ensuring access and innovation, this decision also opens the door for Verizon and other ISPs to create a multi-speed internet. Essentially, it gives them the power to charge content providers - like Netflix, YouTube, Amazon or the good ship Quietus - for faster or more reliable service on their networks. Users of websites that don't or can't pay extra would, in this situation, see their access to those sites slow down, with particularly grave consequences for anyone that hosts video, audio or even large pictures. On top of that, given how much ISPs could feasibly charge content providers for a speed-bump free service, users of Netflix or Spotify could see the cost of those services increase considerably – with no extra benefits for the end user, of course.

The final major consequence is the effect this would have on competition and non-business sites. Competitors hoping to bite into a monopolistic market like Amazon's or new social media sites, new Facebooks in the making, would need incredibly deep pockets just to be able to reach users at the same speed as established sites. It would consolidate power in the hands of those able to pay for their privileged positions. A key democratic element of the internet would be fundamentally changed, and the effect on non-commercial or educational sites – whether that's Wikipedia, a personal blog or your local library – would be huge. It's not like the internet is entirely devoted to money-making enterprises – not yet, anyway.

The impact for Europe is currently quite small, at least in terms of internet users here. It is American ISPs which are the problem, not the sites themselves – US-based sites like Netflix and YouTube would work the same here as they ever have. However, the difference for non-US content providers could be drastic. While Pitchfork, for example, wouldn't be affected in Britain, any person in America wanting to read the Quietus could see the site's loading times negatively affected, unless someone stumps up the necessary cash. For a site that deals regularly with both video and audio, this would have a huge impact on the amount of hits a site like this would get in the US, leaving the market open to those with the money to pay for proper access.

What the FCC chooses to do next is anyone's guess. They could choose to appeal last week's decision, in the hope that the Supreme Court would come to a different conclusion. That outcome seems unlikely. An alternative, the one pushed for by net neutrality advocates, is to reclassify broadband internet as a telecommunications service, thereby bringing it under the common carrier laws. The FCC has the power to do this, but such a change would have to be approved by the US Congress. Given the lobbying power of companies like Verizon and Comcast - who directly employ over 300,000 people between them - this is easier said than done. There are arguments against the reclassification on a practical level too, with billionaire Marc Andreesson suggesting that private providers would have no incentive to invest in their services if they were filed as such. This, presumably, would be the FCC's role - to stipulate and enforce that investment in the name of innovation. But, as with any clash of public bodies and private corporations, there is no guarantee at all that this would go entirely to plan. Given the history between both sides, friction is to be expected.

While it's eminently worthwhile to consider the changes that could take place down the line, it's also interesting to consider the ways in which the internet has developed and changed over the last couple of years, as different forces attempt to exert more control over it. The issue of net neutrality is of huge importance, going right to the heart of what the internet is supposed to be about - but so too are the matters of privacy and security raised by Edward Snowden's NSA documents last year. Snowden, Glenn Greenwald and Laura Poitras have irrevocably changed the general perception of how personal activity is tracked online, as well as how that mass of data can be interpreted and used. Perhaps the key to the success they've had in getting the message out, compared to the likes of Wikileaks, is the way the information has been managed.

The Wikileaks approach - dumping huge amounts of documents into the public domain at once - has its benefits, but it can lead to confusion on the part of the average spectator. Such a glut of information, presented without interpretation, is good for those who can sift through it, but it does invite rumour, conjecture and outright lies, which we know spread even easier than truth on the web. The approach to the Snowden documents, whereby the information is released through various news outlets across the world at a slow but steady pace, after it has been filtered by journalists working close to their source, has a dual benefit: it both contextualises the information and sustainably keeps the story in the news, at a pace people can keep up with. Reader burnout, even among those who are genuinely interested, can be hard to avoid with big, complex stories like this.

Whether or not these revelations have yet changed people's behaviour to any great extent is impossible to tell, but awareness of surveillance is now present on a far more general level, concrete where before it was vaporous conspiracy theory. This is important because it lends proof to the idea that there are bodies out there with the power to track, store and use an amount of data that is almost inconceivably huge. To understand that the internet, almost in its totality, can be monitored is to know that it probably will be. Only genuine public outrage, sustained and concentrated, stands a chance in the effort to resist mass surveillance of the innocent.

While China is regularly lambasted for the way it censors its own people and the information they can access (and rightfully so), far less is said when such attempts at censorship take place closer to home. The nationwide implementation of David Cameron's "porn" filter sets a huge and worrying precedent. The central issue is the way that one has to opt-out of the filter; the default settings will see a whole host of sites blocked, with many of them having precisely nothing to do with porn. This is what the Open Rights Group have referred to as "sleepwalking into censorship", seeing it as a prime example of nudge theory ("any aspect of the choice architecture that alters people’s behaviour in a predictable way without forbidding any options or significantly changing their economic incentives", via Wikipedia). In essence, even given the option of an alternative with no negative consequences, the evidence suggests that most people will not stray from the default settings.

Brought in under the apparently inarguable rubric of child safety, the filter achieves so much more than a kid-friendly internet. Rather, it is a nationwide block on all websites that contain pornographic, violent, alcoholic, extremist or esoteric material. If you feel words like "extremist" or "esoteric" are a little vague, you're not alone. Such broad categories, such a lack of definition, provides the government massive leeway when it comes to choosing what they want blocked. You can rest assured that anyone who opts out of the filter will be more carefully monitored than those who don't. The case in America of six Muslim men who had their porn-watching habits gathered as part of a plan by the NSA to discredit them in the eyes of those they were "radicalising" is pertinent.

With reports that non-pornographic gay and lesbian sites may be blocked as they fall under the banner of 'Sex Education', the effects of these restrictions on people looking for information on being gay or trans could be devastating. More than anything else, the internet is a place where new communities form, theoretically free from the pressures of the physical world and mundane details like geography. It is a tool for connecting people, both to one another and to knowledge and ideas that might change their lives. Filters like these can block those communities from forming, and can stop people from finding out what their parents or their government don't want them to know. The power to define what people ought to know lies entirely in the hands of a bunch of rich old men who, it's fair to say, have some seriously vested interests.

It's also fair to say that government ministers, for the most part, don't seem to have a particularly in-depth knowledge of the internet and digital technology in general. Living in Ireland, this is in evidence on an almost daily basis. A recent case in point was Patrick O'Donovan, a Fine Gael TD for Limerick, calling for a clampdown on "open source browsers". No, I've no idea what that means either. Or you could look at the blocking of websites like Pirate Bay and Kickass Torrents in Ireland. The High Court ordered ISPs to block these websites after the Irish Recorded Music Association (IRMA) and the major labels it represents brought cases against them. This action presumably cost the labels involved some money, as lawyers certainly aren't cheap. However, anyone with a hint of knowledge about how the internet works would have simply used a proxy to get around the block, or accessed these sites through a mirror. There was certainly no interruption to service. So while the labels congratulate themselves on a job well done, another blow struck in the war on piracy, people carry on downloading whatever it was that they were downloading anyway.

Rather less ineffectually, the F.B.I has pursued the people behind file-sharing behemoth Megaupload and dark-web marketplace the Silk Road. Both sites are now gone, and the sudden takedowns of both sites highlight a blunt but workable tactic. As with any blunt approach, there are negative consequences - side-effects. On one hand, these websites obviously have huge potential for dangerous and illegal activity. They often come backed by neo-libertarian pseudo-philosophy that doesn't so much challenge the current power structures as instigate a "grab what you can" mentality among those who proselytise on behalf of them. Still, it's again impossible to remove all sites of this nature simply because, where one falls, more spring up.

On the other hand, over 10 million perfectly legal files were lost when Megaupload was erased from the internet and left as nothing but an FBI notice. Many more disappeared with the loss of torrent site Isohunt late last year. Such ham-fisted tactics - scrapping entire websites and demonising whole technologies - ultimately are usually little more than reactionary power exercises, whether driven by the FBI or major record labels. If anything has tempered the rise of music and film piracy, it's Spotify and Netflix, not the loss of Megaupload and Isohunt. Suing Minnesota mother-of-four Jammie Thomas for $222,000 or Boston student Joel Tenenbaum for $675,000 because they downloaded some music for free achieves nothing but sensational headlines. Illegal activity on the internet won't ever be stamped out by showing force, just as it never was before the internet. You have to create active, intelligent solutions to these problems. Playing whack-a-mole with faceless torrent sites is as dumb as it sounds.

The internet is changing, day-by-day, inexorably. It is now a presence in people's lives in a way that would have been hard to imagine even ten years ago, before smartphones, YouTube or Netflix. Remember when we all hung out on forums rather than arguing on Facebook and Twitter? Remember when the word blog didn't exist? How many of the sites you visit on a daily basis existed a decade ago? New forms of communication develop all the time online and people are always finding new ways of sharing information with each other, new spaces to be safe in.

Erasing net neutrality will slow down that innovation, will restrict ideas and place more power in the hands of the few – those who decide how fast your page loads and those with the money to work that system. Letting government surveillance and censorship go unchecked will have the same effect; blocking new voices from emerging, destroying nodes of dissent. As the 'internet of things' continues to grow and the connectivity of our everyday lives increases, so too does the possibility of control, surveillance and exploitation. Resisting that will require a conscious effort, to preserve the emancipatory capabilities of perhaps the greatest tool of liberation humans have ever created.

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