As mentioned in a previous article, internet intermediaries are under increasing pressure to take on the role of content gatekeepers. Certain governments have attempted to do this directly, by forcing intermediaries to restrict or police user activity in specific ways.
Supporters of gatekeeping requirements argue that preventing users from posting or accessing unlawful material in the first place is better than just assessing liability after the damage caused by the material has already been done. They believe intermediaries are in a position to prevent people within their jurisdictions from accessing illegal content, even content hosted in foreign jurisdictions.
Others also view the issue as a matter of fairness; the businesses that benefit from the opportunities created by the internet should play a role in implementing technological solutions to the challenges the internet poses, for instance, to copyright holders and law enforcement.
Still others believe that imposing gatekeeping duties on intermediaries can have a profoundly negative impact on lawful expression, user privacy and innovation. According to scholar Maurice Schellekens, it can be dangerous to impose such duties on intermediaries: “Once an Internet intermediary is subjected to a first monitoring duty its monitoring duties would, according to the [slippery slope] argument, quickly snowball. If we… assume that those seeking to prevent distribution of pictures of child abuse might be the first to establish a monitoring duty, then others, like victims of libel and slander, of fraud, etc., would soon press for monitoring duties too.”
There are numerous “gatekeeping” obligations that have been imposed upon internet intermediaries worldwide. Such obligations include:
- Website blocking
Governments worldwide have been putting pressure on ISPs to block access to websites that may host objectionable content. Many countries also have semi-voluntary or law enforcement-led programs under which ISPs block access to child abuse images. There are a number of ways that an ISP can attempt to prevent users from visiting certain websites. It can block access to the site’s IP address, their domain name, or their individual URLs.
In certain cases, due to the ways in which data is routed on the internet, IP-blocking in one country may lead to a website becoming inaccessible for the entire world. Furthermore, the widespread blocking of domain names in particular would cause technical challenges that could possibly undermine the internet’s reliability and security. URL filtering can be extremely costly to implement.
- Domain name seizures
This is becoming a common practice by US law enforcement authorities against websites charged with unlawful conduct. The government does this by ordering the intermediaries responsible for maintaining the relevant domain name system (DNS) databases to revoke or reassign a website’s domain name. The government directs seizure orders to domain-name registries and registrars. Often, these entities are instructed to point the names to new sites.
Domain name seizures are susceptible to overblocking for the same reasons as domain name blocking. Seizures also present jurisdictional and procedural challenges. When a domain name is seized, the effect is felt worldwide, not just within the jurisdiction where the seizure occurs. Internet users worldwide can no longer reach the original website via that domain name, leading to possible disputes when content is lawful in the jurisdiction where it is hosted, but unlawful elsewhere.
- Licensing requirements, content regulation and mandatory filters
Certain countries have burdened intermediaries with broadcast-style regulations (e.g. licensing requirements, rules demanding “balanced coverage” or other editorial controls). Automatic content filters, designed to identify and block specific content rather than whole websites, are also becoming a concern of certain courts. Some hosting providers will voluntarily use such filtering technology to reduce copyright infringement.
Licensing requirements, content regulation and filtering mandates necessarily limit expressive opportunities online and ultimately undermine the internet’s role as an open medium for speakers of all kinds.
- Warning or punishing individual users
Escalating concerns regarding online copyright infringement are creating pressures to demand that ISPs threaten or punish users who appear to be engaged in infringement. In France, the HADOPI law targets unlawful file sharing by requiring ISPs to forward warning notices to subscribers identified by rightsholders as likely infringers. Where subscribers ignore the warnings and engage in repeat infringement, ISPs may be ordered to disconnect them. Other countries have adopted similar laws.
Such warning systems can be useful for educational purposes, for instance to inform subscribers about the law and potential consequences of their actions. However, they can also raise new issues regarding the necessity and proportionality of the penalties imposed and the fairness of the process by which penalties are applied.
It is becoming more common for internet intermediaries to take on the role of gatekeepers, policing and censoring the materials shared online. Gatekeeping obligations have been imposed by governments upon intermediaries worldwide.
CIPP Exam Preparation
In preparation for the Certified Information Privacy Professional/Information Technology (CIPP/IT), a privacy professional should be comfortable with topics related to this post, including:
- Privacy intersections in the development process (I.B.a.)
- Global resourcing and outsourcing (I.F.b.i.)
- Privacy-enhancing techniques (III.D.)