Tag Archive | "censorship"

Extraterritorial Internet Censorship and the Need for a Global Legal Standard

“[T]he right to freedom of expression on the Internet is an issue of increased interest and importance, as the rapid pace of technological development enables individuals all over the world to use new information and communications technology.”[1]

Photo Credit: Pixabay

Photo Credit: Pixabay

In 2013, the United Nations Human Rights Counsel acknowledged the increasing interest in ensuring the freedom of expression.[2] This concern is not new, nor has it been alleviated.[3] Single-state actors are increasingly depriving non-citizens of free speech by implementing world-wide censorship orders on private companies.[4]

This article will describe the background of adopted declarations and covenants regarding freedom of expression. Next, this article will discuss the practice of worldwide censorship by single-state actors. Google will be discussed in depth as well as other recent developments of single-state global censorship. Finally, I will propose a legal test to be adopted globally by an international convention. This test will aid courts to decide whether one state should impose their will on global communications and provide an appellate process. The standard consists of one proposed by an intervener in Google and is a fair, cautious, and last-resort style approach that respects cultural differences and the inherent right of a sovereign state to govern its territories.

No country should control the type of online content available in other countries. To do so creates a race to the bottom where countries with competing interest, culturally and economically, will create stricter and stricter rules that regulate all aspects of freedom of expression on the Internet.[5]

BACKGROUND

Article 19 of both the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) aim to protect the right to receive information regardless of frontiers and through any medium.[6] It has become customary to emphasize that individuals enjoy the same rights online as they do offline.[7] In the context of internet censorship, the ICCPR can be extended to say freedom of expression may be limited “[f]or the protection of national security or of public order, or of public health or morals.”[8] Without restriction, the UDHR states that freedom of expression should be “without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”[9]

Any restriction must be precise enough and publicly accessible in order to limit the authorities’ discretion and provide individuals with adequate guidance.[10] To be necessary, a restriction must be more than merely useful, reasonable or desirable.[11] It is also well established that necessity requires an assessment of proportionality.[12] Proportionality requires demonstrating that restrictive measures are the least intrusive instrument among those that might achieve their protective function and proportionate to the interest to be protected.[13] Notwithstanding a difference of application within states, there have been an increasing number of courts that impose their will on the entire world. Several organizations around the world have been struggling to recommend the best course of action moving forward.[14] The next section exemplifies why necessity and proportionality tests are not enough.

GOOGLE V. EQUUSTEK SOLUTIONS, INC.

On June 28, 2017, the Supreme Court of Canada ordered that Google, Inc. must de-index websites identified by the court through a worldwide injunction.[15] Google is a non-party to the original suit, but while a court order does not bind non-parties, “anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court.”[16] Equustek, a small tech company in British Columbia, sued its former distributor, Datalink Technology Gateways (“Datalink”), which was selling allegedly counterfeit versions of its products online.[17] Equustek won a default judgement and acquired several injunctions that proved ineffective. In a last resort effort to stop Datalink, Equustek won an injunction to have Google de-list all of Datalink’s websites in Canada.[18] That injunction did not stop Datalink from hosting websites outside Canada, so the court granted a worldwide injunction. Google appealed, but was denied as only a theoretical argument.[19]

The Court concluded that Equustek faced irreparable harm to its intellectual property and profits because Google has a seventy to seventy-five percent market-share of global Internet searches.[20] The court further agreed with the court below, finding that: (1) in personam jurisdiction, thus the court could make an order with extraterritorial effect; (2) courts of inherent jurisdiction could grant equitable relief against non-parties; (3) an interlocutory injunction against Google was the only practical way to prevent Datalink from flouting the court’s several orders; and (4) since there were no identifiable countervailing comity or freedom of expression concerns that would prevent such an order from being granted, the interlocutory injunction should be upheld.[21]

This decision immediately garnered outrage related to the fourth point above.[22] The Canadian decision opens the door for other countries to interpret what “freedom of expression concerns,” are and what “proportional” to preventing “irreparable harm” means. For example, some countries may want to order a worldwide injunction on religious websites, websites hosting educational materials, or websites aimed at empowering women – the ends are boundless. Practically speaking, the refusal to classify the sale of counterfeit products as free speech may be correct. However, the application of the rule of law, to allow any singular sovereign to impose its judgment on the rest of the world, contrary their own beliefs, laws on censorship, or due process, is dangerous to international human rights.

OTHER RECENT DEVELOPMENTS

Canada’s ruling is not the first of its kind. In 2014, Google Spain lost a case where the highest court in the Europe declared that it must remove global listings of personal information on third-party websites upon request.[23]

Two years later, the so-called “right to be forgotten” led to a $112,000 fine from a case in France.[24] Google has fought hard to limit single-state legal decisions to its local operations like Google.fr in France, saying that applying the ruling worldwide would infringe people’s freedom of expression.[25] France, in opposition, claims that privacy and human rights are best served by protecting the personal data of individuals because individual privacy is a fundamental human right.[26] This clear divergence in fundamental values exemplifies an impending global crisis that is ripe for global solution. The facets of differences in interest between a large multinational corporation and a sovereign state continue to grow – but in this instance, there may be a solution.

THE NEED FOR A WORLD STANDARD FOR EXTRATERRITORIAL CENSORSHIP

In Google, there was a proposed standard for the Canadian Supreme Court to use, but it was completely ignored.[27] The Electronic Frontier Foundation’s (“EFF”) interest is to propose a:

“principled test, with specific requirements, as guidance for Canadian courts when considering the granting of mandatory worldwide injunctions affecting non-parties in foreign jurisdictions, particularly where such orders restrain free expression on the internet…the extraterritorial effects of mandatory worldwide injunctions that restrain free expression on the internet are anathema to judicial comity.”[28]

With few modifications, the EFF test should be applied in all courts bound by an international convention so that the rights, values, and sovereignty of all states are respected. This two-prong test runs akin to the “strict scrutiny” test used in United States federal courts.[29]

First, the threshold question should be whether an order with extraterritorial effect may offend another state’s core values or run contrary to the law of any jurisdiction whose citizens the order might affect – with the burden of proof resting on the plaintiff seeking worldwide injunction.[30] If there is a “realistic possibility” that an order may offend another state’s core values or be against its laws, the order shall not be made because of an exceedingly high burden on the plaintiff.[31]

If the proposed injunction passes the first prong, the plaintiff must then meet each element of the second prong by proving: (1) a strong prima facie case on the merits; (2) substantial and irreparable harm to its interest; (3) no reasonable alternative will prevent such harm; (4) the proposed order is narrowly tailored to minimally impair freedom of expression; (5) the order is technically feasible and enforceable; and (6) the beneficial effects of the order will outweigh the detrimental effects on the rights and interests of the enjoined party and the public, including the effects on the right to free expression.[32] In addition, this proposed framework would include leave to appeal for certiorari in a neutral international court.

This test presents an extremely high burden, but is open to flexible use in practice. The first prong will allow a court to receive amicus briefs from other states, industries, and human rights groups alike for review. Thus, the first prong promotes a comprehensive forum that can be extended or limited to the extent the court pleases.

The second prong provides a necessary quest for validity and viable alternatives. A strong prima facie case with substantial irreparable harm should be proven in any case regardless. A search for reasonable alternatives is a rational approach for an injunction effecting several billions of people. A narrowly tailored injunction prevents runaway courts from imposing their will on the world, as they currently do.[33] Then, to ensure redressability, the remedy must actually be technically possible, meaning that a company like Google or Bing has the technological capability to comply without the need of constant oversight by the court.

The most flexible, yet difficult element would likely be the last element that provides a balancing test, benefit versus detriment. To illustrate, the United States currently allows pornography, while several countries do not. The United States bans terrorist organization websites, but others do not. Some countries have strong piracy laws, while others have none. Each of these policies stem from fundamental values where policy decision makers balance benefit versus detriment. This presents a problem because courts may abuse the proposed test on these grounds.

However, the only balancing consideration should be on human rights and the impact on freedom of expression, for which there is a long history in international law.[34] Thus, an independent, appellate level international court is necessary. This court should consist of a tribunal unbiased by their cultural norms, and as large as necessary.

CONCLUSION

The decision in Google has raised the issue before us to a tipping point. The proposed convention contained here is meant to spark a meaningful debate in the United Nations and beyond. There will need to be many details negotiated in order for a convention, rather than a resolution, to be passed. The proposed convention intentionally omits any cultural or value-based biases. The only common value, which will be the driving force to adopt this convention, is the respect for freedom of expression. Each state has the right to decide what that means for itself, but not for all.

Alex Mancero is a Staff Editor with the Denver Journal of International Law & Policy, and a 2L at the Sturm College of Law.

______________________________________________________________________

[1] Human Rights Council Res. 32/13, U.N. Doc. A/HRC/RES/32/13, at 7 (July 1, 2016).

[2] H.R.C. Res. 32/13, supra note 1, at 2.

[3] See generally Reuters in Ottowa, Google Can Be Forced to Pull Results Globally, Canada Supreme Court Rules, The Guardian (June 29, 2017, 2:46 PM), https://www.theguardian.com/technology/2017/jun/28/canada-google-results-supreme-court; Jeff J. Rogers, Google Must Delete Search Results Worldwide, Supreme Court of Canada Rules, Fortune (June 28, 2017), http://fortune.com/2017/06/28/canada-supreme-court-google/.

[4] Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL).

[5] See Kent Walker, A Principle That Should Not Be Forgotten, Google In Europe (May 16, 2016), https://www.blog.google/topics/google-europe/a-principle-that-should-not-be-forgotten/

[6] International Covenant on Civil and Political Rights art. 19(2), opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Human Rights Comm., General Comment No. 34 on Article 19: Freedoms of Opinion and Expression, ¶ 15, U.N. Doc. CCPR/C/GC/34 (Sep. 12,2011) [hereinafter UDHR].

[7] Human Rights Council Res. 32/38, U.N. Doc. A/HRC/32/38, at ¶ 6 (May 11, 2016).

[8] ICCPR, supra note 6, at 178.

[9] UDHR, supra note 6, at 75 (emphasis added).

[10] H.R.C. Res 32/38, supra note 7, at ¶ 7; See, e.g., UDHR, supra note 6, at 71.

[11] Sunday Times v. United Kingdom, App. No. 6538/74, at ¶ 59, Eur. Ct. H.R. (1979), http://hudoc.echr.coe.int/eng?i=001-57584.

[12] See Human Rights Council 29/32, U.N. Doc. A/HRC//29/32, ¶ 36 (May 22, 2015).

[13] H.R.C. 29/32, supra note 12, at ¶ 36.

[14] See, e.g., Aaron Mackey, Corynne McSherry & Vera Ranieri, Top Canadian Court Permits Worldwide Internet Censorship, Electronic Frontier Foundation: Deeplinks Blog (June 28, 2017), https://www.eff.org/deeplinks/2017/06/top-canadian-court-permits-worldwide-internet-censorship.

[15] Google, 2017 CarswellBC 1727 at ¶ 41.

[16] MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048 (Can.).

[17] Google, 2017 CarswellBC 1727 at ¶ 3.

[18] Id. at ¶ 12.

[19] Id. at ¶ 44.

[20] Id. at ¶ 18.

[21] Id. at ¶ 20.

[22] See generally Reuters, supra note 3; Rogers, supra note 3.

[23] Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, 2014 E.C.R. 314; Court of Justice of the European Union Press Release 70/14, An Internet Search Engine Operator is Responsible for the Processing that it Carries out of Personal Data Which Appear on Web Pages Published by Third Parties (May 13, 2014).

[24] Mark Scott, Google Fined by French Privacy Regulator, New York Times: Technology (March 24, 2016), https://www.nytimes.com/2016/03/25/technology/google-fined-by-french-privacy-regulator.html?_r=1.

[25] Scott, supra note 24.

[26] National Commission of Informatics and Civil Liberties Deliberation No. 2016-054, Imposing a Monetary Penalty Against Google Inc. (March 10, 2016).

[27] Brief of Intervenor Electronic Frontier Foundation, Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL) (No. 36602) [hereinafter EFF Brief].

[28] EFF Brief, supra note 27, at ¶ 1-3.

[29] See, e.g., Fisher v. University of Texas at Austin, 136 S. Ct. 2198, 2214 (2016)

[30] EFF Brief, supra note 27, at ¶ 26.

[31] EFF Brief, supra note 27, at ¶ 27.

[32] EFF Brief, supra note 27, at ¶ 28.

[33] Google, 2017 CarswellBC 1727 at ¶ 53.

[34] See generally ICCPR, supra note 6, at 173; UDHR, supra note 6, at 71.

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"The Interview" Censored Graphic

Sony Pictures’ “The Interview”— Freedom of speech or act of war?

            The Interview, starring Seth Rogen and James Franco is a comedy about the assassination of North Korea’s leader, Kim Jong-un.  Bitterly offended by the film, North Korea called the content an “act of war.” North Korea began making threats during the summer of 2014, going so far as involving the United Nations in an attempt to stop the production of the film. Despite this, Sony Pictures refused to cease production and release of the film.  In November 2014, Sony’s computer system was besieged by a series of hacks by a group calling themselves the Guardians of Peace.  This eventually culminated in Sony cancelling the release of the film due to threats of further attack in movie theaters.  Sony and the United States suspected North Korea of masterminding the cyber-attacks while North Korea vehemently denied any part in it.

The controversy surrounding the film centers on freedom of speech. The reaction to the initial cancellation of the film in Hollywood was intense with concern that censorship in response to threats will set a dangerous precedent where films and other forms of art will be censored in response to threats. President Obama voiced similar concern over the repercussions Sony’s initial decision to cancel the release of the film will have on freedom of speech, as did other politicians from around the world.

"The Interview" Censored Graphic

“The Interview” Censored Graphic
Photo Credit: TechCrunch.com

However, not everyone agrees that a film depicting the assassination of the leader of a sovereign nation represents a black and white issue of freedom of speech, especially when it involves a nation with whom we do not have good international relations to begin with. Of further concern was the sympathy some Russian officials lent to North Korea in their reaction to the film, as well as the apprehension of North Korea’s ally, China, to get involved in any blame for the cyber-attacks on Sony Pictures.

Though restricted in some nations, freedom of speech is a human right. However, nowhere is this right without limit. More recently, freedom of speech came up with Pope Francis’ controversial assertions on the limits of freedom of speech in reaction to the terrorist attack on Charlie Hebdo by Islamic extremists.

Out of these recent controversies, questions for the future arise: Can freedom of speech go too far? Could too much freedom of expression result in war? Or will restriction of freedom of expression itself lead to war and violation of human rights? Ultimately, we must find a way to balance the competing interests, preserve our rights and settle our cultural differences peacefully.

Bernadette Shetrone is a 3L law student at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy. 

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Critical Analysis: Protests and Violence Continue in Venezuela

Opponents of Venezuelan President Nicolas Maduro continued to protest this past weekend, despite a controversial court ruling limiting protests in the troubled country. The Venezuelan Supreme Court ruling gives police the power to suspend protests that don’t have a permit. The ruling states that Article 68 of the Venezuelan Constitution, which provides for a right of peaceful protest, does not grant an absolute political right to protest. Specifically, the Supreme Court held that political organizations and Venezuelan citizens must exhaust all administrative remedies before potentially being allowed to peacefully protest. Even then, the protests must be pre-approved.

Protests began earlier this year in February amid reports of food shortages and high consumer prices. Current reports from the Central Bank and various economists show that food prices have risen 6.1 percent since February, and that the inflation rate is currently running at nearly 60 percent. These protests have been widely student-driven, but have also included opposition forces.

Violent protests in Venezuela have left 41 people dead and hundreds injured. Image Source: Washington Post

Violent protests in Venezuela have left 41 people dead and hundreds injured. Image Source: Washington Post

Often, protests have become violent, and at least 41 people have been killed since they began. Furthermore, almost 600 people have been injured, and around 100 have been detained. According to some who were detained, they were “kicked, pistol whipped, doused with pepper spray and battered with helmets and shotgun butts” in an attempt to discourage further protests. Allegations of murder and other human rights violations have also spread. However, the government’s actions have only made Venezuelan opposition forces more defiant; this weekend’s protests are evidence of just that.

These facts are only recently coming to light in international news, as President Maduro’s government censored most, if not all media coverage of the protests and strife. Due to the rampant censorship, many Venezuelan students turned to foreign sources and social media to have their voices heard. However, reports from late February stated that the Venezuelan government had blocked many Venezuelan users’ Twitter access in an effort to curb further social unrest and protest. Twitter eventually confirmed the government’s supposed actions.

So far, peace talks and negotiations between the Maduro government and opposition forces have not been particularly fruitful. Many students do not trust the current government enough to enable healthy negotiation, as they claim that “years-old efforts” to negotiate with various local, state, and federal officials about problems in Venezuela have solved nothing. There are, however, several hopeful signs. Venezuela’s neighbors are becoming increasingly dismayed with the government’s alleged actions of human rights violations and brutality, leading to more of their involvement in the situation. Recently this month, foreign ministers from the Union of South American nations, which included diplomats from Brazil, Colombia, and Ecuador, pressed both sides into limited negotiation, with the government and opposition forces agreeing to create a commission to investigate supposed human rights abuses during protests. Despite the small improvement, however, protest and opposition in Venezuela do not show any sign of slowing down.

 

Bailey Woods is a 3L law student at the University of Denver Sturm College of Law and Candidacy Editor for the Denver Journal of International Law & Policy.

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Critical Analysis: The Internet: The Land of the Free?

“The Great Firewall of China” is well-recognized around the world as referring to China’s closed-internet policy.  Edward Snowden’s leaks advertised to the world that privacy online in America is more of a myth than an actuality.  But perhaps all of this is just leading to the next stage of internet freedom – not actual freedom, but more transparency in how the internet is being monitored.

A woman sits in a cybercafé in Beijing. Photo: Dan Chung/The Guardian

A woman sits in a cybercafé in Beijing. Photo: Dan Chung/The Guardian

Beijing News recently released a report that more than two million Chinese people are employed by the government and private companies to monitor web activity.  These “internet opinion analysts” are hired to search through opinions related to particular key words, gather the opinions, and then compile reports on these opinions.  However, a previous study indicates that these internet opinion analysts do more than just report on opinions.  This study of one specific site, Sina Weibo, discovered that these monitors will also delete posts that include particular keywords or that are posted by frequently-censored users.  Some of the most commonly censored topic during this thirty day study included “support Syrian rebels,” “judicial independence,” “one-child policy abuse,” and “human rights.”

Censorship in China is based mainly on government laws. The Sina Weibo study, for example, understood that “[i]f Sina Weibo had insufficient controls, the government may take action against the company.  If their controls were too rigid, users might abandon them for one of their competitors.” China is not the only state that uses laws, regulation, and general technology to regulate and monitor internet-use by its citizens.  Iran uses filtering and slow connections to attempt to censor internet use.  India actually has laws against monitoring, but apparently the government has violated its own rule by monitoring the activities of almost 160 million Indian internet users.  And of course, the United States’ NSA monitors the internet activity of millions of Americans.

Perhaps instead of using national laws to inhibit freedom on the internet through censoring or monitoring, as has apparently become the trend over the last three years, it is time to promote privacy instead.  While the UN’s International Telecommunication Union (ITU) recently attempted to negotiate a new treaty for states to sign, the treaty focused more on the rights of governments in telecommunications than individual privacy rights.  If the UN is not helping to promote an international standard, it may be best for a state or group of states to design a Model Law for states to adopt to promote internet privacy.  If a Model Law existed and was shown to be effective for some states, other states, that hold onto monitoring and censoring as necessary for security, would see a viable – and more politically palatable alternative.

Until then, China might at least be making strides in being more frank about how it is monitoring its citizens.  Although a long way from a lack of censorship, this could be a very important step towards more internet privacy – hopefully one that other states will be willing to adopt.

Samantha Peaslee is a 2L at Sturm College of Law and Managing Editor for the Denver Journal of International Law and Policy.

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News Post: the Internet, Privacy, and National Security

Cell phone use in the Arab Spring

With the rise of hacker groups like “Anonymous,” coupled with the damage to Iran’s nuclear reactors left in the wake of the Stuxnet worm, 2012 has been coined the “Year of Cyber Security” by various media outlets. However, as the global community embarks upon what appears to be the epicenter of the Internet Age, privacy rights and freedom of speech on the internet creates tension with government domestic and national security and economic interests. Years before the advent of the internet, The United States Supreme Court cautioned in Keith the potential for a government to undermine the right to privacy inherent in the Bill of Rights through the unabated use of electronic surveillance in the name of “domestic security.”  Nearly four decades later and half-way across the globe, the Syrian Government has brought the fears of the Court to life; in an attempt to quell the recent uprising against the current political regime, the Syrian Government has begun blocking and intercepting text message communications between demonstration organizers and participants.

The Syrian government, using spyware  technology, issued orders to block all text messages containing terms such as “revolution” or “demonstration.” While this spyware technology is designed for protecting networks against spam and viruses, this same technology provides political regimes the ability to intercept their citizens’ e-mails and text messages, monitor Internet activity, and locate political targets. The orders from the Syrian Government are being carried out by the two of the largest mobile networks in the country, Syriatel and MTN Syria, using software provided by Dublin-based  Cellusys and AdaptiveMobile.

While AdaptiveMobile has yet to issue an official comment on the situation in Syria, AdaptiveMobile said in a statement that, in 2008, it provided MTN Syria with a standard SMS spam and MMS antivirus product for blocking spam, viruses, and inappropriate content.  However, “given the changing political situation in the region”, AdaptiveMobile did not renew the contract with MTN Syria last year.  Cellusys claims to have not sent workers to the country since 2009 and remains unaware of how its technology is being used today.  Despite the use of European technology by the current Syrian political regime to repress demonstrators, the supply of the software to MTN Syria and Syriatel did not violate any Irish or European laws: the transactions occurred prior to the 2011 EU imposed restrictions on sales of equipment to Syria that could be used for repression.

Even though the sales came about prior to the EU restrictions, human rights groups remain critical of both the companies. Several human rights groups and supporters have argued in the past week that both companies were irresponsible in selling filtering technology to Syria and ignoring the likelihood that the technology would be used to repress political dissidents.  Human rights groups assert that due diligence on the part of Cellusys and AdaptiveMobile would have revealed a high likelihood and propensity for the Syrian Government to use the technology to commit human rights violations.  The activists point to a U.S. State Department Human Rights report from 2008, which found that Syria’s security forces “committed numerous, serious human rights abuses” and “tortured and physically abused prisoners and detainees.”

 The news from Syria comes in the wake of the Arab Spring. Still fresh a year later in the minds of persons the world over, the use of Twitter, Facebook and text messaging were integral to organizing the revolutions and demonstrations that toppled autocratic regimes in Tunisia, Egypt and Libya. Through intercepting the private text messages and online communications of its citizens, the Syrian Government goes beyond just containing anti-regime sentiment and violates an often forgotten human right in today’s Facebook-addicted society: privacy.  As the international community begins to confront and monitor hacker groups like “Anonymous” in the name of domestic security, we must remember Syria’s censorship and interception in the private conversations of its citizens in the years to come.

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