Intellectual Property Law

Germany Joins Iran and China

By Tim Armstrong, Derek Bambauer, and William McGeveran.

Nope, not a post about the World Cup - these are three countries that have been in the news for government-mandated Internet censorship. It’s a bit weird to see that grouping, but as I’ve argued elsewhere, filtering is becoming ubiquitous - no longer limited to “bad states” like Burma.

In Germany, the major parties in Parliament are in agreement on a plan to require ISPs to filter a list of sites - limited to child pornography, says the government - provided by the federal police. Opposition has been strong, but for naught, as the government passed legislation today. Ralf Bendrath, an activist and academic whom I met at CFP 2009, is following the situation on his blog. Initially, the government pressed for “voluntary” blocking by ISPs, but the Greens and others pushed for a public, not private, law solution. Rebecca MacKinnon points out that some German politicians already want to expand the scope of blocking - for example, to cover extremist or gambling sites.

Coverage of Internet censorship tends, unsurprisingly, to be libertarian in tone: filtering is implicitly treated as undesirable or illegitimate. Nicole Wong of Google had an insightful point at CFP that captures this argument beautifully: filtering is problematic when adopted by democratic states, she said, because it offers cover to authoritarian ones who use the same practice to more troubling ends.

But, for a change of pace, let me offer three reasons why Germany’s move looks legitimate, and then one criticism.

1. The new filtering legislation has support from the Christian Democratic Party and the Social Democratic Party - in other words, from both conservative and liberal politicians. Thus, filtering has a fairly broad base of political support (unlike, say, in Australia).
2. Germany opted for formal public law after debate, rather than bullying ISPs into quasi-voluntary filtering (as in the UK). Governments make bad law all the time, which is why we vote them out. Legislation is more transparent and more amenable to policy change than private deals.
3. The government recognizes - this was a driver in the shift from private to public law - that the legislation treats questions of fundamental rights, such as expression and access to information. That’s preferable to simply lumping opponents in with child pornographers (as Minister Conroy has done in Australia).

The problem is scope creep: the first step in putting filtering in place is the hardest, both politically and technically. Germany, like most Western states that have contemplated Internet censorship, has focused on the easy case: child pornography. The child pornography lobby is, shall we say, small and underfunded. But once the filtering apparatus is in place - “the machine,” Wendy Carlisle calls it - it can be set to block other things about which there’s less consensus - gambling, euthanasia, copyright infringement. And since the lists of sites to be blocked are secret, it’s very difficult to detect how far the system slips down that slope.

Much depends on the details of Germany’s new law, and on its implementation. We’ll see how much the country’s system looks like the others in the news…

Full post as published by Info/Law on June 18, 2009 (boomark / email).