Re: The Great Firewall of Norway

[David Farber <dave () farber net>]

Begin forwarded message:

From: John Morris <jmorris () cdt org>
Date: February 13, 2007 1:43:23 PM EST
To: dave () farber net
Subject: [IP] Re: The Great Firewall of Norway

Dave,

For IP, if appropriate....

Although there are a number of legal and policy problems with Mr.  
Sandberg explanation and clarification of the Norway proposal (which,  
to be clear, I have not read, and indeed only know about because of  
IP).  Let me focus on what I think are the key problems:

At 12:06 PM -0500 2/13/07, David Farber wrote:
> Begin forwarded message:
>
> From: "Simen E. Sandberg" <senilix () gallerbyen net>
> Date: February 13, 2007 11:34:56 AM EST
> To: David Farber <dave () farber net>
> Subject: Re: [IP] The Great Firewall of Norway
<snip>
> Gunnar Hansen wrote at February 13, 2007 2:31:08 AM EST:
> > If this proposal were to become law, Norway would have stricter
> > Internet censorship than China.
>
> No. The difference is that the Norwegian solution will be supported by
> the legal system, so every domain or computer to be filtered will  
> have a
> fair trial in a public court. Norway has ratified the Convention of
> Human Rights, so the courts will not be able to block political  
> sites in
> violation with free speech.

The fallacy with Mr. Sandberg's argument is that, obviously, content  
on the Internet changes constantly, and even if a Norwegian court  
court give a "fair trial" to content on a site today, that content  
may well be different tomorrow, and the "fair trial" that Mr.  
Sandberg promises is irrelevant to the current content of a site.  
Unless Norway would provide a 24-hour-a-day on-going "trial" to  
ensure that the content on the blocked domain continues to contain  
content that Norway wants to censor, it is unavoidable that Norway  
will be censoring content that has not received any "trial" whatsoever.

Moreover, the entire domain might change hands, and a wholly unaware  
new publisher may be using a domain that Norway has decided to block.  
Because we have no "censored by Norway" flag in our global domain  
name system, a new domain buyer has no way to know what is blocked  
(unless Norway plans to make its block list publicly and widely  
available for all to see, thereby publicizing the very sites that it  
wants to block).

And fundamentally, I do not believe that Norway could ever give a  
"fair" trial to, hypothetically, a small non-profit or personal site  
based in Australia.  Unless Norway plans to fly the site owner  
halfway around the world and pay for an attorney for the site owner,  
Norway will end up blocking sites not because they "should" be  
blocked under the Norwegian proposal, but because the site owners  
cannot afford to defend the sites in Norway.  At the end of the day,  
the Norwegian government would be able to block many sites with no  
adversarial proceeding whatsoever.

Most critically, the Norwegian proposal (as far as I can tell based  
on the IP postings) is silent on exactly how the ISPs are expected to  
block access to the sites.  In 2003-2004, I litigated on behalf of  
the Center of Democracy & Technology a constitutional challenge  
against a Pennsylvania (in the US) state law that seems to closely  
track the Norwegian proposal (although only focusing on child  
pornography sites).  We proved in federal court that in an effort to  
comply with Pennsylvania orders to block access to about 350 child  
porn websites, the ISPs subject to the blocking orders ended up  
blocking access to more than 1.5 million wholly unrelated and  
innocent web sites.  The court declared the law to be  
unconstitutional and enjoined its enforcement.  For more info and the  
court decision, see http://www.cdt.org/headlines/174.  We are  
currently litigating a similar blocking law in the state of Utah  
(which the federal court there has preliminarily enjoined -- see  
http://www.cdt.org/headlines/928).

If Norway (or any country) wants to shield its citizens from any  
particular content on the Internet, it should promote the  
availability and use of voluntary client-side filtering tools to  
screen out content that Norway does not like.  Here in the U.S.,  
former Attorney General Richard Thornburgh (a respected "law and  
order" attorney general) headed a two-year-long blue-ribbon study  
committee -- sponsored the National Academy of Sciences -- that  
produced a 400 page report on how to protect kids online from  
pornography.  The report, titled "Youth, Pornography and the  
Internet" (available at http://books.nap.edu/html/youth_internet/),  
concluded that a combination of education of kids and the use of  
voluntary filtering tools was the best approach to protecting users  
from undesired content.  This conclusion applies as well in Norway.

John Morris

--
----------------------------------------
John B. Morris, Jr.
Staff Counsel
Center for Democracy and Technology
1634 I Street NW, Suite 1100
Washington, DC 20006
(202) 637-9800
(202) 637-0968 fax
jmorris () cdt org
http://www.cdt.org
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