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Regulating the Code? Using ISPs to block banned web-sites in Germany

Regulating the Code? Using ISPs to block banned web-sites in Germany. 14th Computers, Freedom & Privacy Conference Wolfgang Schulz Berkeley, 22th April 2004 . Overview. 1. 1. There shall be no censorship: What really happened. There shall be no censorship: What really happened. 2.

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Regulating the Code? Using ISPs to block banned web-sites in Germany

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  1. Regulating the Code?Using ISPs to block banned web-sites in Germany 14th Computers, Freedom & Privacy Conference Wolfgang Schulz Berkeley, 22th April 2004

  2. Overview 1 1 There shall be no censorship: What really happened There shall be no censorship: What really happened 2 The Background: Regulatory patchwork 3 Analysis: Is the Administrative Act lawful? 4 Outlook: Germany as ashining or warning example? Schulz

  3. What happened 1 Everybody has the right freely to express and disseminate their opinions orally, in writing or visually and to obtain information from generally accessible sources without hindrance. Freedom of the press and freedom of reporting through audio-visual media shall be guaranteed. There shall be no censorship. (Art 5 (1) Grundgesetz, German Constitution) Sperrungsverfügung What happened: • In Feburary 2002 the district government of Düsseldorf ordered several ISPs in North Rhine-Westphalia – a federal state of Germany – to block possible usage of www.stormfront.org and www.nazi-lauck-nsdap.com. • Administrative act comprised the duty of immediate execution • Access providers lost several first actions before administrative courts in 2003. Schulz

  4. pro con Technical aspects:Possible technical solutions to block web-sites l 1 1 Blocking the DNS Amateur-users unable to reach the page. Web-pages still available if "blocked" server's IP number is known. No additional hardware needed. All web-sites hosted on blocked server not available. Constant adjustment of DNS-blocking necessary. Schulz

  5. pro con Technical aspects:Possible technical solutions to block web-sites l 2 1 Blocking the IP-address Amateur-users unable to reach the page. All web-sites hosted on blocked server not available. No additional hardware needed. Constant adjustment of router's IP-filter necessary. Schulz

  6. pro con Technical aspects:Possible technical solutions to block web-sites l 3 1 Using a proxy server Offers an opportunity of extensive control. Loose of speed if all web-sites were checked. If restricted avoidance possible again Avoidance by users that use the ISP not possible. Filter software is fault-prone. Inoffensive sites might be blocked. Filter-software needs cost-intensive constant care and updates. Schulz

  7. Overview 1 1 There shall be no censorship: What really happened There shall be no censorship: What really happened 2 2 The Background: Regulatory patchwork The Background: Regulatory patchwork 3 Analysis: Is the Administrative Act lawful? 4 Outlook: Germany as ashining or warning example? Schulz

  8. The background: regulatory patchwork 2 • Order was based on sec. 22 Inter States Treaty on Media Services: • Sec. 22 empowers authorities to act in case of violation of Inter States Treaty. Possible actions: prohibition and blocking of internet services. • Sec. 22 (2) is the legal basis foractions against content providers. Sec. 22 (3) is subsidiary to sec. 22 (2). If no effect of actions against providers of content the authorities can act against others like access providers. • Competence regarding Internet Regulation is still highly controversial • Federal and State Competencies: General principle: Regulation of technique: Federal / Regulation of Contents: State. • Complex competencies of control: Different authorities in each State and for different objectives (protection of minors, data protection, competition, other matters) Schulz

  9. Overview 1 1 There shall be no censorship: What really happened There shall be no censorship: What really happened 2 2 The Background: Regulatory patchwork The Background: Regulatory patchwork 3 3 Analysis: Is the Administrative Act lawful? Analysis: Is the Administrative Act lawful? 4 Outlook: Germany as ashining or warning example? Schulz

  10. Analysis: Is the administrative act lawful? 3 • Preliminary remark: Who is effected? • The addressed ISPs • Customers of the ISP • Provider of the blocked host • All content providers using the blocked host • European Law • Possible breach of Art. 3 sec. 4 E-Commerce Directive, allows to act, e.g., in case of public policy affected. In particular prevention or prosecution of crimes, a service-provider has to comply with. Procedural requirements: other country unsuccessfully asked to act and European Commission to be informed before. Schulz

  11. Analysis: Is the administrative act lawful? 3 • International Law • Extra-territorial effects have to be considered (compare: French Yahoo!-Case). • Applicability of sec. 22 States Treaty on foreign cases? Collision prescripts of Criminal Code can be affiliate: General principle: Criminal Code applicable for crimes committed in inland? • Law of nations could set extra-territorial boundaries: • Restatement (Third) Foreign Relations Law of the United States has achieved authoritative character • Sec. 402: principle of consequences: substantial effects within State’s territory? Confining sec. 403 to be regarded: no actions if exercising jurisdiction is unreasonable. • Law of Nations’ borders in controlling contents?: simple accessibility of content not enough? Active infiltration (“Zippo-test”), content aims especially at certain territory (“target-test”) Schulz

  12. Analysis: Is the administrative act lawful? 3 • Constitutional Law • Content protected under Art. 5 Grundgesetz? • Auschwitz denial not protected • Apart from that: dissemination as well protected as reception • Lawful restriction of the freedom of speech • Sec. 130 StGB (Criminal Code): sedition + sec. 86 StGB: dissemination of unconstitutional association’s propaganda • Background: “Principle of well fortified democracy” • Prohibition of censorship as an absolute limit of restrictions? • Only censorship before publication  reasonable distinction in the internet? • By the state in order to hinder publication  pushing the self-censorship of ISPs covered? Schulz

  13. Analysis: Is the administrative act lawful? 3 • Is sec 22 (3) applicable? • Code of criminal procedure (StPO) overriding? • Provision of access as Media Service • Line of demarcation: Telecommunications Services: strict distinction between Telecommunications Services and Content related services • Line of demarcation: Tele Services: complex demarcation between Tele- and Media Services. Main difference: Tele Services cover individually used services (e.g. online banking), Media-Services characterised by intending to address the public. • Sec. 3 (1) States Treaty might comprise providers of access, as well, because supplying access for utilisation of Media Services. • Is there a breach of a provision of the Interstate Treaty? • Violation of sec 12 States Treaty, if Media Service offends criminal laws, glorifies war or represents a moral menace to children and adolescents. Schulz

  14. Analysis: Is the administrative act lawful? 3 • Technical feasibility of blocking: • Offences only lawful as long as something technically feasible is requested • Decree asks for blocking, proposes use of DNS-, IP- or proxy-filters. • Legal responsibility of access providers • Access providers do not cause the danger by their behaviour or by being responsible for a source of danger. In German Police Law, the access providers are “non-disturbers”, who are entitled to a of compensation. • Substitution of general Police Law principles by sec. 22 (3) States Treaty: special request: measures towards access and service providers are subsidiary. • More restrictive interpretation needed in order to mind an all-embracing appliance leading to re-nationalisation of the internet? Schulz

  15. Analysis: Is the administrative act lawful? 3 • Proportionality of the measure • Measure suitable to fulfil the act’s aims? • Critics stated that act not suitable, cause all possible means do not promise success. But no complete success needed, helping to fulfil the aims is legally sufficient. • Is it the least intrusive measure • Is interference with the right proportionate to the legitimate aim? • Overweighing of public interest in consideration with different impacts: • Access providers’ freedom of profession (Art. 12 GG) is attached > limited to general laws • Access providers’ freedom of expression (Art. 5 (1) GG) is attached, because of helping dissemination information via a media. But here content disseminated is not protected by Art. 5 (1) GG • Users’ right to unrestrained access to information (Art. 5 (1) 2 GG). Consideration required: right to inform is constitutive for a democratic state. But democracy and state is being attacked by those contents. Overweighing of public interests Schulz

  16. Overview 1 1 There shall be no censorship: What really happened There shall be no censorship: What really happened 2 The Background: Regulatory patchwork 3 3 Analysis: Is the Administrative Act lawful? Analysis: Is the Administrative Act lawful? 4 4 Outlook:Germany as ashining or warning example? Outlook: Germany as ashining or warning example? Schulz

  17. Outlook: Germany as a shining or a warning example? 4 Secondary responsibility of access providers is in line with general rules ofGerman police law but: 1. Deeper meaning of the prohibition of censorship: The State should not regulate whether content becomes part of public sphere or not. • Not each internet services is a mass medium, but Internet to be treated like mass media, i.e. no administrative action before publication • Blocking order should only be possible by court decision, not by administration. • Chilling effect on ISPs: enforcing self-censorship to evade the prohibition of censorship • Nationalisation of the internet Schulz

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