Vetting the net

Internet Service Providers have powers to regulate and censor that put the courts to shame, argues Chris Evans

Regulation of the net in Britain began with the establishment of what is now the Internet Watch Foundation (IWF) in 1996. IWF was set up by Peter Dawe, ex-chairman of Pipex Internet, to tackle the availability of child pornography through a reporting hotline and content filtering. Today, IWF is funded by the internet industry, with the backing of the Department of Trade and Industry, the Home Office and the police, and has unprecedented powers to regulate and control the internet.

IWF's remarkable regulatory role is illustrated in the graph above right. Of the 39 494 items reported, IWF advised Internet Service Providers (ISPs) to remove 23 292. Only 982 were passed to the police and could have reached UK courts - and recent accounts record only 24 successful prosecutions for internet-based child pornography (Y Akdeniz, United Kingdom Section of Regulation of Child Pornography on the Internet, 1999). While IWF has no statutory powers, it reports that ISPs consistently comply with removal instructions. So 96 percent of the material removed from the net sees neither judge nor jury, and by IWF's own admission would be unlikely to result in a successful prosecution if brought to court. Of the 23 292 items removed, an estimated 0.1 percent of them could have been in direct response to a court ruling. No other British non-governmental organisation has such a level of command over a whole industry, outstripping state powers nearly one-thousand-fold.

From the outset, ISPs have failed to challenge popular misconceptions about the internet and its supposed dangers and risks. Instead they have sought to demonstrate a responsible attitude towards 'unsuitable' or 'offensive' material online. This has been achieved by financing IWF and backing it through the two leading trade organisations - the Internet Service Providers Association and the London Internet Exchange. But many service providers have gone even further, playing a leading role in policing content on the net.

ISPs have been able to close sites in cases that would have been unlikely to succeed in a court of law. Examples include: the Dunblane massacre shooting game website closed by Virgin Net in August 1997; a US serial killers site closed by America Online in September 1997; the Euskal Herria Journal website, reporting on Basque separatism, closed by Easynet in September 1997; a Koran parody site closed by America Online in June 1998; Irish Heritage discussion boards suspended by America Online in January 1999; the Nuremberg Files anti-abortion site closed by Mindspring in February 1999; a website critical of UK judges closed by Kingston Internet in November 1999. The list goes on...

ISPs get their legal powers from the contractual arrangements made with their customers. Unlike public authorities, whose powers are enshrined by statute and who are held to account through the courts, ISPs are free to place any restrictions on consumers provided these restrictions do not contradict the law. Until recently, this did not pose too much of a problem, since commercial organisations had little motivation to place additional constraints on their customers. But the drive for regulation has meant that many ISPs now have extremely restrictive conditions to which they bind internet users. Even businesses and their investors have been overcome by a desire to avoid offence and to appear ethical. Like all businesses, ISPs are accountable to their shareholders whose primary concern was to ensure profitability. Now, the concerns of ISPs and their shareholders about avoiding offence mean that internet users are denied access to internet material.

Violations of conditions of service allow ISPs to terminate contracts at will, resulting in the closure of websites and withdrawal of customer access to the net. So section D1 (ii) of Virgin Net's Terms and Conditions of Service expressly requires customers to not 'send or receive any material which is offensive, or which we believe may be abusive, indecent, obscene or menacing, or in breach of confidence, copyright, privacy or any other rights'. In practice, Virgin Net's policies are even more restrictive, including removing material which causes annoyance or anxiety. Debbie Caldicott, press office manager at Virgin Net, explained:

'If material generates complaints and it is deemed to be abusive, indecent, obscene or menacing, causing recurring annoyance, inconvenience, or needless anxiety to a substantial body of subscribers, then it is removed from the service.'

Virgin Net's policy is typical of ISPs. Indeed, there is a consensus among service providers that certain newsgroups should be banned, making it almost impossible for UK subscribers to access their content without taking out accounts abroad. As a result, it is now extremely difficult for owners of closed sites to find alternative routes for publication.

No court in Britain or America has the power to suppress material simply on the grounds that it is 'menacing, causing recurring annoyance, inconvenience, or needless anxiety to a substantial body' of people. ISPs have gained unprecedented powers as arbiters of acceptability, and can remove material from the internet at will. While the state may not always operate in the interests of the majority of citizens, at least it is formally held to account through the courts and parliament. ISPs face no such formal checks.

The regulatory acts of bodies like IWF are not open, not subject to review, and provide no mechanisms for redress. IWF has successfully established a mechanism for secret censorship that reaches the parts that the government alone cannot reach.

Dr Chris Evans lectures in ecommerce and multimedia computing at London's Brunel University, and is founder of the cyber liberties organisation Internet Freedom (www.netfreedom.org). He will be taking part in an online debate about internet censorship on Sunday 5 March - see the LM website (www.informinc.co.uk) for more details