Subject: [hrpc] comments on code 451 document

From: Sandra Braman <[email-masked]>
Date: Tue, 14 Nov 2017 00:09:19 +0800

Folks --

Code 451 is an extremely interesting way of attempting to engage the
technical and legal systems with each other directly. Thoughts on several
points follow.

Sandra Braman

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*"Censorship"*

There are two problems with use of the word "censorship" for the actions to
which this code should refer.

First, the word has a very negative connotation, usually avoided even by
those governments that actually engage in it but prefer to use terminology
that refers to things like protecting the population from harm, etc.

Second, the word censorship refers to government prevention of the
communication of material dealing with opinions and beliefs that the
government considers unacceptable. There is lots of other content online
that an entity may be blocking or want to block, including that involving
fraud, false advertising, personal data, obscenity, and, in many societies,
hate speech.

For both of these reasons, I strongly urge you to replace the word
"censorship" with "blocked content." It covers a much wider range of types
of content and will be a much more acceptable concept for any entity,
whether a government or a corporation, to associate itself with. And it
doesn't require trying to change the meaning of a word with a very long
history and consensual understanding of its meaning.

*Providing a Reason for Blocking*

In essentially every legal system, when someone is stopped from doing
something for legal reasons, the specific law or regulation involved is
cited. This is one of the fundamental elements, in fact, of *habeas corpus*,
the 11th century principle still actively called upon around the world that
prevents individuals from being imprisoned without (a) knowing what it is
they have been charged with, and (b) having the question of guilt or
innocence assessed.

In Code 451, there is no reason to be shy about this. In your discussion of
the requirement to identify *why* material is being blocked, replace
"SHOULD" with "MUST."

*Why Material is Blocked*

The analysis of uses of code 451 around the world speculates about the
possible legal foundations for the use that in my view significantly
underestimates the range of possible laws and regulations that may be
involved.

There are three types of legal and regulatory issues that arise in the
online environment:

(1) Issues that have long existed in the offline environment that exist in
essentially the same way online environment. Defamation is an example.

(2) Issues that have long existed in the offline environment that also
appear online in ways that are newly problematic because of the intelligent
network. In the United States, access to certain types of personal
information that is a matter of public record falls into this category. It
has always been legal to learn about a person's criminal justice record,
but before the Internet doing so comprehensively was an expensive and
time-consuming matter that required visiting each jurisdiction in which
there was a possible record, visiting an office and requesting access to
files and documents to get the necessary information. Private investigators
were typically used for this and it wasn't something anyone might casually
do. That is not the case in the online environment, when it is inexpensive
and very fast to get the same information, comprehensively, about anyone in
whom one is interested. The qualitative change in the nature of access to
this information has stimulated interest in amending the pertinent laws
because our experience of the effects of the implementation of existing
laws has changed so much.

(3) Issues unique to the Internet environment. There is no offline
equivalent for hijacking use of your computer for a botnet.

For issues in categories 1 and 2, the common assumption is that all law
that exists off-line applies online in the absence of any specific
discussion of that point as applied to a particular law.  Countries that
decide to make that point explicit do so for legal efficiency. For issues
of particular concern, there are a number of political, social, and
cultural reasons to put additional laws and regulations in place that are
Internet-specific. In common law countries, a lot of what is called
"Internet law" comes from court opinions that apply existing law to cases
arising online.

There is always a lag between innovations (in technologies, and in uses of
technologies both) and legal responses to those innovations. Thus First
Amendment protections *always* applied to online communications in the
United States, but we did not get an explicit governmental statement about
that as a general principle until the constitutionality of the
Communications Decency Act was challenged. The court opinion in that case
was a relatively early interpretation of the First Amendment as applied
online, but it did not create those protections for expression.

What all of this means, in the absence of explanations about why the code
451 option was invoked, is that any analysis of why the code was used must
look very broadly across the law for all of the laws and regulations that
can affecct content and communicative action in the countries involved.
Thinking about Internet-specific laws and regulations only as possible
explanations for uses of code 451 will miss many, many of the legal
justifications available -- many of which would be considered socially
acceptable in general (eg, fraud).

*Contract Law*

As the document on code 451 is written, it is assumed that it is matters of
public law that are involved. But there are two types of reasons an ISP or
website might block content -- because it is required to do so by law, or
because it chooses to do so in accordance with the ISP or website terms of
service. In the latter case, it is private law -- contract law -- that
applies, not public law, and the ISP or website is *both* the entity doing
the blocking and the authority requiring the blocking.

It would be useful for the document to distinguish between the two as they
operate differently. In many societies, such as the United States, there
are differences in legally required access to information about what has
happened and in the ability of the individual or group blocked to legally
challenge the action.

*Right of Appeal*

It is typical to include some means of appeal in laws or regulations
restricting content offline. The same ideally should be true online. In my
view one of the most dangerous elements of the Digital Millennium Copyright
Act (DMCA) in the United States is that it allowed -- required -- ISPs to
take material down *without* a trial determining whether or not in fact
there was guilt.

Can something be added to the code 451 document about rights of appeal?

---

From: Hernâni Marques (p≡p foundation) <[email-masked]>
Date: Mon, 13 Nov 2017 18:33:16 +0100

> Folks -- 

Hello Sandra

> /"Censorship"/
> 
> / /
> 
> There are two problems with use of the word "censorship" for the actions
> to which this code should refer.

I disagree on not using this word as this would bring up the danger that
we engange in euphemisms for "good" censorship, thus legitimating it.

> / /
> those governments that actually engage in it but prefer to use
> terminology that refers to things like protecting the population from
> harm, etc. 

That doesn't change anything to the fact that information is being
suppressed.

> that an entity may be blocking or want to block, including that
> involving fraud, false advertising, personal data, obscenity, and, in
> many societies, hate speech.

You're referring to political censorship specifically. Censorship in
general refers is the suppression of information -- despite the
intention, culture, legal reasons or effects.
> "censorship" with "blocked content." It covers a much wider range of
> types of content and will be a much more acceptable concept for any
> entity, whether a government or a corporation, to associate itself with.
> And it doesn't require trying to change the meaning of a word with a
> very long history and consensual understanding of its meaning.

I don't see "censorship" meaning "political censorship" only, starting
e.g. at Wikipedia (EN), where some consensus seem to have been achieved
(that also holds for other languages, like German):

"Censorship is the suppression of speech, public communication, or other
information, on the basis that such material is considered
objectionable, harmful, sensitive, politically incorrect or
"inconvenient" as determined by government authorities or by community
consensus. [1]"

URL: https://en.wikipedia.org/wiki/Censorship

Why should we find a term to make appear harmless what Western
governments or corporations are doing on the basis of "good faith" / by
pretending to protect the people etc. and only allow to call it --
openly -- censorship when less / non-democratic governments are doing
it, for "bad"?

I may have an Orwellian view on what's going on, but the reasons why
governments or corporations engage censors to create lists of sites to
be suppressed shouldn't much care.

Greets

Hernani

-- 
p≡p foundation: https://pep.foundation/

---

From: Bob Harold <[email-masked]>
Date: Mon, 13 Nov 2017 15:21:30 -0500

> be suppressed shouldn't much care.

Consider a web site blocking particular pages because I have told them I
don't want to see "adult" material.  "Censorship" seems like the wrong
word.  "Blocking" or "filtering" are better terms for these activities,
which could be good, bad, or neutral.  I still want 451, so I know why a
particular page was blocked.

-- 
Bob Harold

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From: Stephane Bortzmeyer <[email-masked]>
Date: Tue, 14 Nov 2017 13:17:57 +0800

On Tue, Nov 14, 2017 at 12:09:19AM +0800,
 Sandra Braman <[email-masked]> wrote 
 a message of 342 lines which said:

> technical and legal systems with each other directly. Thoughts on
> several points follow.

To which document do you refer? We have many drafts talking about code
451 (not to mention RFCs 7725 and 8280), draft-451-imp-report,
draft-451-new-protocol-elements, draft-manyfolks-hrcrfc7725...

---

From: Stephane Bortzmeyer <[email-masked]>
Date: Tue, 14 Nov 2017 13:29:59 +0800

On Mon, Nov 13, 2017 at 06:33:16PM +0100,
 Hernâni Marques <[email-masked]> wrote 
 a message of 387 lines which said:

> I disagree on not using this word as this would bring up the danger
> that we engange in euphemisms for "good" censorship, thus
> legitimating it.

I agree with this viewpoint. (I really hate newspeak: "harmony" for
dictatorship, "protection" for censorship, etc).