Thursday, 20 November 2014
Internet Blocking Systems
I thank the Minister of State, Deputy Kevin Humphreys, for taking this matter on Internet blocking systems. Very often controlled filtering, or Internet blocking, lies outside the control of the public policy process. We have seen that Internet filtering policies have become more common where states cannot exercise their authority to reach criminals for prosecution or where Internet service providers outside their jurisdiction reject or ignore requests for take down. Given that, the function of Internet filtering is often carried out by third party actors who are external to public authorities. Issues of transparency, accountability and legitimacy are very much called into question and that, in itself, brings into the fold issues of freedom of expression, which is an area of contention. This is particularly relevant where filtering policies are not prescribed in law, when they do not adhere to due process principles and when administrative bodies have responsibility for the content and the sites being blocked.
When one looks at the issue of Internet filtering, it becomes clear that rarely are explicit laws designed to establish a technical filtering regime but rather there is a framework for restricting certain kinds of content online and banning certain online activities. Very often legal regulation which empowers filtering and surveillance is very vague and is not explicitly stated, if it is, in itself, stated. There are three main critiques of Internet filtering and blocking. First, it is the technical capacity of filtering and that it does not prevent under-blocking or over-blocking, which then has consequences for civil liberties. Second, there are the human rights concerns, such as freedom of expression, and that they are implicated by Internet filtering. Finally, filtering would not be conducive to positive developments ICT can facilitate, such as innovation.
In 2008, the Committee of Ministers called on member states to ensure that where filtering or blocking is used, it is only done if the conditions of Article 10.2 of the European Convention on Human Rights are met and that it should only occur if it concerns specific and clearly identifiable content and that a competent national authority has taken a decision on illegality and the decision can be reviewed by an independent and impartial tribunal or regulatory body. Academics and commentators have noted that while the regulation of specific illegal content, such as child abuse content - we saw this recently with the decision of UPC - is commonplace in many countries, the areas of contention and controversy are not the regulation of such material, which I must state explicitly, but the ease with which other types of content could be blocked as a result. Non-transparent regulation systems are very difficult to reconcile with freedom of expression, so that is why the need for categories of prohibited content to be clearly and precisely defined is critical for the prevention of excessive application of filtering and to ensure there proportionality.
I would like to raise the issue of mission creep and curbing administrative discretion to extend filtering into other areas. If there is not a precise and detailed specification of the criteria for censorship, the censor, which, as I said, is very often a third party administrative body, essentially can have the power to exercise expansive discretion to restrict speech. It is important that there are three procedural safeguards which countries implementing filtering systems should provide, including the ability of Internet users to challenge the decision to filter before an independent judicial body, notice to affected users that Internet content was filtered and a definition of the categories of speech subject to filtering.
I raise this issue in light of the UPC decision and to ensure that now it is being implemented by UPC, it will not be contested on the basis of any of these issues. It should be underpinned by law and there should be a role for the State. It should be transparent and proportionate, and capable of being challenged before an independent judicial body and not just at the discretion of a third party.
On behalf of the Minister for Justice and Equality, I thank Senator Reilly for raising this very important matter.
The Internet is a vital tool and contributes to education, communication, commerce and the gathering of knowledge among its many uses. However, we are increasingly aware that there are dangers inherent in the use of the Internet, in particular for children and young people. Blocking is just one of the tools available to ensure the safer use of this vital resource. As the Senator may be aware, the Minister for Justice and Equality, Deputy Fitzgerald, attended the announcement of a new Garda initiative on the blocking of Internet child pornography on Monday, 10 November 2014. On that day, a great deal of hard work on the part of the Garda and of the company UPC led to the signing of a memorandum of understanding between the Garda and an Internet service provider company, UPC.
Under the terms of the memorandum of understanding, the company agrees to block illegal child pornography on its Internet network in Ireland in accordance with a list which is to be provided by the Garda. Under the new initiative, when a person attempts to access the illegal content, they will instead see a stop page. The stop page informs the person that the content that they are attempting to access is illegal. It also gives contact information if the person wishes to complain that the content is incorrectly blocked. No details of the person requesting the illegal content will be retained. The Garda is engaging with other companies with a view to signing further memorandums of understanding.
A review of the memorandum of understanding with UPC will be carried out by the Department of Justice and Equality and the Garda after it has been in operation for a period of six months. This new Garda initiative, along with the existing work of the hotline.ieservice, together fulfil Article 25 of EU Directive 2011/93 on combating the sexual abuse and sexual exploitation of children and child pornography.
There are various technical means of carrying out blocking and also filtering on the Internet, but the result is that the end user does not receive the requested material from the Internet. The technique which will be used in the new Garda initiative is called "domain name system, DNS, poisoning". Other techniques include Internet protocol address blocking, uniform resource locator blocking and packet inspection.
Different techniques have their own advantages and disadvantages but some techniques may have the effect of slowing down interface with the Internet to the extent that it would impede efficient use. There are packages which are made commercially available to the public and which carry out filtering on a basis chosen by the purchaser. Such packages can be useful to parents or others who wish to protect children or young persons from certain online content. Of course, it must be said that there are no guarantees that all unwanted items will be captured by blocking or filtering systems.
The question of the voluntary or involuntary nature of filtering and blocking comes up for discussion. General wholesale blocking of Internet content is not desirable as the Internet should be a resource available to all. However, when it is a question of illegal content such as child pornography, then it is justifiable to have the means to block such content. Under the new Garda initiative, once a high enough proportion of the ISPs engage in the new Garda initiative there should be less inadvertent viewing of illegal content. This should free up Garda resources to pursue those who deliberately collect and even trade in child pornography.
Child abuse is a horrendous crime and its depiction on the Internet compounds the offence. The Minister recently attended the ministerial meeting of the EU and US Global Alliance against Child Sexual Abuse Online. That conference brought home yet again that these dreadful crimes against children are completely unacceptable. I look forward to hearing the Senator's views, which I will bring back to the Minister.
I ask the Minister of State to communicate this to the Minister for Justice and Equality. The Minister of State stated that as part of the new UPC blocking, the system gives contact information if the person wishes to complain that the content is incorrectly blocked. This goes back to a point I made. Any Internet blocking system should have a process whereby Internet users can challenge the decision to filter before an independent judicial body. Who will oversee any complaints that are made and who will make a judgment on any appeal on that?
There have been judgments from the European Court of Human Rights on over-blocking. The Minister of State said, "there are no guarantees that all unwanted items will be captured by blocking or filtering systems". There is also a danger, as I mentioned in my comments, of over-blocking of sites that might have some kind of link or image but where these are not child abuse images. In Britain, the Internet Watch Foundation blocked Wikipedia at one stage because of an album cover that was hosted on one of its sites, so there is an issue with over-blocking. I hope the Minister can revert to me on some of these issues in due course.
We have chosen to implement blocking by administration means. The remainder of the provisions of Article 25 are being transposed into Irish law in the criminal law sexual offences Bill, which is on the Government's legislative programme. At that stage, the Senator will have an opportunity to expand on her views and ensure that we have the proper safeguards as she outlined in her contribution.