Is this the end of »mere conduit«?

A central principle in EU Internet-related legislation is the so-called mere conduit rule.

The IT Law Wiki:

Under the mere conduit principle of the EU E-Commerce Regulations of 2002,[1] network operators have no legal liability for the consequences of traffic delivered via their networks.

Wikipedia:

Who an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. The acts of transmission and of provision of access include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

Today’s Swedish court ruling (and earlier European court rulings) to block The Pirate Bay is in direct conflict with this principle, as stated in the EU eCommerce directive.

The grounds for this seems to be the EU InfoSoc directive. The argument is that mere conduit does not apply when it concerns traffic to sites that do not adhere to notifications to remove content that is deemed illegal, e.g. when it comes to copyright infringements and intellectual property.

But this doesn’t make sense.

You cannot have a rule stating that ISP:s have no legal liability for the consequences of traffic relayed via their networks – unless illegal. That is the same as saying that ISP:s do have legal liability for the consequences of traffic relayed via their networks. And this is the opposite of what is stated in the eCommerce directive.

And even though the ISP in question have not been charged with any criminal offense – it is to be considered liable, as the verdict states that it will have to pay a hefty fine unless blocking The Pirate Bay. (The ISP also had to pay the copyright owners legal fees.)

I would say that we have a clear case of conflicting laws. And as the blocking verdict is only an interpretation of the InfoSoc directive, while the eCommerce directive states a very clear principle – the latter shall apply.

But I´m no lawyer. Reactions, opinions, and feedback are welcome in the comments below.

/ HAX

Appeals court blocks the Pirate Bay in Sweden

A Swedish appeals court (the court for market and patent related issues) today ruled that the Internet service provider Bredbandsbolaget must block the Pirate Bay and the streaming service Swefilmer.

By definition, this is censorship.

Also, it is a ruling in direct conflict with the EU the eCommerce-directives principle of »mere conduit« stating that net operators can not be held liable for what users are doing in their cables.

However, this is in line with court rulings in other European countries. And the court claims that the decision is based on EU law.

To confuse things further, the ISP has not been subject to any criminal charges or accusations of illegal activities. Nevertheless, the court seems to refer to a general »responsibilty« to stem illegal activities.

Where all of this leave the »mere conduit« principle (in the EU eCommerce directive) is unclear. Apparently, there are two conflicting sets of rules.

To abolish »mere conduit« is like holding the Post Office responsible for what is written and sent by mail. Or to hold road operators responsible for the intentions and actions of people traveling in cars using their infrastructure.

This is not reasonable. The ruling will open up for more censorship and surveillance.

And to top things of, no matter what, this form of blocking is not very effective and quite easy to circumvent.

/ HAX

Torrentfreak: The Pirate Bay Must Be Blocked in Sweden, Court of Appeal Rules »

The Dark Web going even darker

Sites on the so-called dark web, or darknet, typically operate under what seems like a privacy paradox: While anyone who knows a dark web site’s address can visit it, no one can figure out who hosts that site, or where. It hides in plain sight. But changes coming to the anonymity tools underlying the darknet promise to make a new kind of online privacy possible. Soon anyone will be able to create their own corner of the internet that’s not just anonymous and untraceable, but entirely undiscoverable without an invite.

Wired: It’s About To Get Even Easier to Hide on the Dark Web »

Proton Mail strikes back

ProtonMail, the privacy-focused email business, has launched a Tor hidden service to combat the censorship and surveillance of its users.

The move is designed to counter actions “by totalitarian governments around the world to cut off access to privacy tools” and the Swiss company specifically cited “recent events such as the Egyptian government’s move to block encrypted chat app Signal, and the passage of the Investigatory Powers Act in the UK that mandates tracking all web browsing activity”.

The Register: ProtonMail launches Tor hidden service to dodge totalitarian censorship »

EU copyright reform: Oettinger’s legacy

These proposals will cause major collateral damage – making many everyday habits on the web and many services you regularly use downright illegal, subject to fees or, at the very least, mired in legal uncertainty.

Julia Reda, Pirate MEP: 10 everyday things on the web the EU Commission wants to make illegal »

Fake news and the war over information

Everybody seems to be obsessed with the phenomenon of »fake news«.

But this is nothing new. If you have first-hand information, you will find that mainstream media are often wrong.

When I used to work in the European Parliament for the Swedish Pirate Party, we established the principle »right enough«. If a piece of news only had minor errors, we let go and focused on something more important. To try to correct everything journalists get wrong will be much too time-consuming.

A standard phone call from a (non-Brussels based) journalist normally started out with everything between five and 30 minutes of EU for dummies – where we had to explain who does what and how things actually work in this multinational bureaucracy. And in the end, it would to some extent end up incorrect anyway. You can only do so much.

Journalists are not rocket scientists, their insights and knowledge are normally limited, and they have a tight time frame to collect and analyze the facts. They will always get some things wrong.

And, of course, journalists and media organizations are biased – often without being aware of this fact themselves.

However, the context at the moment is not about mainstream media. It’s about the competition.

The political and media elite seems to have a strong aversion towards alternative media. Often new players don’t follow the same set of unwritten rules as journalists who are a part of the establishment. And this might be a good thing, as the latter often are more interested in cultivating their relations with people in power than reporting the actual news.

Of course, alternative media is sometimes filled with fake news, satire, propaganda, opinions, biased reporting… and often with real, important news and a qualified analysis that doesn’t make it into traditional media.

During the years 2009-14 in the European Parliament, we often used our blogs and social media networks to get the news out: Important news and first-hand information, that was not in any way covered in other media.

This was often met with irritation from the political elite and the bureaucracy – and with a scornful attitude from Big Media. There are always people who, because of various reasons, find frank reports about real matters disturbing.

Somehow, I fear that an elite of politicians, bureaucrats, journalists, and media organizations are taking advantage of the fact that there is a certain degree of fake news out there – to smear all new, alternative media.

They simply don’t want others to interfere.

Now we will see Facebook in cooperation with mainstream media start labeling links as »disputed«. Germany might go all Putin and fine those who publish »incorrect« information on the Internet. It is all quite Orwellian. And it opens up for abuse, censorship, and cover-ups.

The media – new or old – rarely gets everything right. Sometimes it gets most things wrong. Usually, it has some sort of agenda. Therefore, its’ analyses should always be questioned. To get a somewhat complete picture – we need to turn to more sources, many different media organizations, and an abundance of disparate voices – not fewer.

The entire discussion over »fake news« might just be tactics in the endless war of power over information, over the agenda. Obviously, the establishment is not amused with the new competition.

/ HAX

EU producing a lot of hot air trying to curb free speech

A press release from the European Commission caught my eye: EU Internet Forum: a major step forward in curbing terrorist content on the internet »

At today’s second high-level meeting of the EU Internet Forum convened in Brussels by Commissioner for Migration, Home Affairs and Citizenship Dimitris Avramopoulos and Commissioner for the Security Union Julian King, key internet companies presented an industry initiative, which constitutes a significant step forward in curbing the spread of terrorist content online. As part of the industry-led hash-sharing initiative, participating companies can use hashes to detect terrorist images or videos, review the material against their respective policies and definitions, and remove matching content as appropriate.

Well, that is only a part of the story.

The Commission totally ignores the fact that this form of censorship is conducted outside the rule of law.

The concept is that Facebook, Twitter, Youtube and Microsoft should remove illegal terrorist content. But what is illegal? As a matter of fact, the press release doesn’t touch on this question. The word illegal is not even mentioned. And there might be reasons for that.

In a democratic society, censorship should strictly be a matter for the courts – as they are the ones qualified to make the delicate decisions about what is legal or not. And naturally, there must be a possibility to appeal.

But that is not how the EU Internet Forum / The Joint Referral Platform will work.

It’s all about using these social networks terms and conditions to block content. The decisions will be made by the companies abuse departments, with no possibility of redress. There will be no proper legal procedure, cases will be handled by people who are not legally trained and there is an obvious risk of overreach.

That is not a proper way to approach the delicate issue of free speech.

This is all about EU politicians having established a way to limit free speech without the inconvenience of having to create new law under public scrutiny – and without having to bother with proper legal procedures. It is an approach to limit free speech without getting your fingers dirty.

And there is more.

The same instrument is to be used to curb »hate speech« and other statements that politicians disapprove of. There are no real limitations, no oversight, and no transparency. This project doesn’t have a democratic mandate. And the European Commission has been very secretive and unwilling to share information about what is going on. This is totally inappropriate.

The people’s elected representatives in the European Parliament must look into this matter – to defend our civil rights, democratic process and the rule of law.

/ HAX

Internet on Cuba opening up – to Google

Cuba’s state-run telecommunications company Etecsa has signed a deal with Google that will enable faster access to content from the American company.

Under the deal, the technology giant will install servers in Cuba to improve connectivity speeds to Google services, including Gmail and YouTube. (…)

Even though most Cubans are likely to see the deal with Google as a step forward, it will do little to change the overall online accessibility in the country.

BBC: Cuba signs deal for faster internet access to Google content »

Don’t let Big Entertainment censor the net

“It is a dangerous path to go down, which forces Internet providers to monitor and evaluate content on the Internet and block websites with illegal content in order to avoid becoming accomplices,” the companies write in a joint statement.

Torrentfreak » ISPs: Blocking The Pirate Bay is Dangerous Censorship »