Cyberspace in Court: Around the World

Last month (November 2011) Pakistan made a striking move unprecedented for a contemporary society.  It listed 1500 words in English and Urdu that it considered obscene or blasphemous and ordered cell phone companies to block any texts containing these words.  These included common swear words as well as words as unassuming as “idiot,” “fart,” “Jesus,” and “headlights.”^[1]  If the order holds, it will probably have sweeping effects on communications in the country, heavily restricting the free rights of common people in Pakistan to communicate by text messages.  Furthermore, it is unlikely that restrictions will stop there; will the Internet in general see a similar set of restrictions??  Measures proposed on censorship in the past few years suggest that this may be a possibility.

The government claims that the new list of banned words follows from a 1996 law.  This law prevents people from sending information that is “false, fabricated, indecent, or obscene” across any method of communication.^[2]  Yet in the past fifteen years Pakistan’s cyber laws have adjusted in significant ways, leading from the relatively vague 1996 law to the current situation.  The first such law was passed in 2002, called the “Electronic Transaction Ordinance.”  This law gives as punishment imprisonment for up to seven years for the access of information on     private networks.^[3]  Though some may see this as an indication of Pakistan’s willingness to protect privacy, by recognizing specifically the security of networks it seems more geared toward protecting financial and, more importantly, government data.  In addition, it provided the first measures of cyber-security in Pakistan.  Pakistan has taken a preemptive stance of the threats of cyber criminals and cyber terrorists, as indicated by many laws passed that specifically are geared towards these groups.  In this act, Pakistan hoped to punish those who specifically sought to damage information systems.^[4]  These measures appear to be noble, and are fairly standard (if broad) measures of protection against cyber criminals.

Pakistan first begins to show its more restrictive side in the 2007 follow-up to this law, the Electronic/Cyber Crime Bill.  The law was passed while President Pervez Musharraf was in power.  Musharraf was known for abusing autocratic powers by imposing emergency military powers in conditions without crises.  The law passed under him bears the weight to a great extent of these restrictive measures.  They were passed in response to complaints by Pakistani citizens in the blogosphere.  The law expressly prohibits the use of the Internet to criticize authorities or call for anti-government rallies.^[5]   This is the first instance where the government seems to be showing a direct desire to curb dissent, as expected in a semi-authoritarian government like Musharraf’s. It prevents people from taking photos and uploading or sending them if they contain “indecent material,” a key precedent for the later ban on actual words.  It goes on to describe numerous forms of cyber crimes, such as fraud, defamation, and even spamming, gives a definition of each one, and gives prison sentences for each crime.^[6]  The “crime” of pornography is given one of the longest prison sentences: 10 years.  This probably derives from the Islamic cultural background, as policies undertaken in the country are often expected to promote Islamic values, just as many American laws promote Christian values.

Bloggers were quick to note, however, the vague definitions of many of the crimes listed.  “Spoofing” and “spamming” are inherently vague acts and may be used as means to prevent the publication of criticism of the state.^[7]  Even more dangerous, however, is the definition of “cyber terrorism,” an act punishable by death.  It is essentially given no definition: the performance of a “terroristic act” on the Internet.^[8]  With enforcement of the law given to the Federal Investigation Authority that hilariously purports to punish “anti-democratic forces,” it is not unfounded to say that these vague definitions may see abuse.^[9]  Others, however, have given more credit to Pakistan, saying that cyber terrorism only results in the death sentence when the actions that the perpetrators resulted in the death of somebody else.  Furthermore, Pakistan has in general enjoyed a free press to date, with vibrant government criticism present on television.  The definitions of words like “spamming” and “spoofing” have enough context in them to specifically target dangerous perpetrators of cyber-crimes.^[10]

Nevertheless, Pakistanis hoped that the transition in government from President Musharraf to current President Asif Zardari would end any movement towards Internet censorship.  Zardari, the widower of the assassinated Benazhir Bhutto, represents the liberal Pakistan People’s Party.^[11]  Despite these claims, cyberlaw has only become more restrictive since Zardari became president of Pakistan.  In 2009, Rehman Malik, the interior minister, banned all electronic communications which “slander the political leadership” of Pakistan.^[12]  They were developed specifically in response to jokes about President Zardari resulting from disappointments of the current state of government in Pakistan.^[13]  This is pretty clear since the new laws were implemented after someone was smart enough to send these jokes to the president’s e-mail.  Of course, Zardari has claimed that the laws are to counteract “abuse of women” in government and, as always, “terrorism.”  It is pretty clear, though, that Pakistan’s supposedly democratic government is taking clearer and clearer steps away from promoting the freedom of expression and towards promoting censorship.  Its unfortunate especially since freedom of expression is guaranteed in Pakistan’s constitution.  Taking steps to put in power a more “liberal” government has solved none of its problems.

Recent censorship imposed by Pakistan’s government has been escalating out of control.  Earlier this year (2011), Pakistan blocked Rolling Stone after an article published on its web site criticized Pakistan’s levels of military spending.^[14]  It is difficult to continue to argue that Pakistan’s press is free and vibrant when such arbitrary restrictions are forced upon Pakistan’s Internet service providers.  Of course the government argued that doing this was due to the “scantily clad women” on the site, but of course this did not make them ban sites with similar images.  Facebook was temporarily blocked this year as well due to the prevalence of cartoons perverse to the Islamic religion on its site (of course, Facebook, in the spirit of free expression, did not remove them when asked).^[15]  In both circumstances, when the government could have blocked only the single troublesome page, they instead chose to block the entire website.  Many speculate that this was done with clear political goals and hopes to prevent the Internet from becoming a place of vibrant government criticism.  In a completely political vain, an independence site for the Balochi population (an ethnic minority within Pakistan’s borders) was blocked.^[16]  The government is even considering blocking Google if it does not do better to assist Pakistan in its cyber-terrorism efforts!  The good news is that many of these blocks are easily circumvented by anyone with some knowledge of how computers work.^[17]  It is difficult to imagine, however, how long Pakistan will continue to be heralded as a “democratic” if the government (effectively or not) imposes such restrictions upon the activities of its citizens.

In this context, Pakistan’s arbitrary ban on the use of certain words while texting is less shocking.  They result from a slowly escalating tendency to block modern forms of communication to prevent the spread of government dissent.  Whether inspired by Islam or not, whether with the noble aims of preventing cyber-terrorism or not, it poses a number of questions about what a free society ought to naturally allow its citizens to do and how governments can go too far in the modern era.  Pakistan will continue to be an interesting case to observe in the next few years to see how common people react to the most restrictive recent trends.

In 2010, Italy did something that antitrust, copyright, and privacy protection lawyers have wanted to do for a long time- it sued Google.  It convicted Google executives to actual prison terms, claiming that they had violated the privacy of a boy with a disability by not taking down a video of him on YouTube fast enough.  The video was put up by a group of children who beat the disabled boy in the video.  Google did remove the video upon being asked to by the police, and complains that it has no obligation to regulate the content put up on its site.^[1]  Indeed, such a conviction would have been impossible in the United States. Section 230 of the Communications Decency Act allows website operators to edit the content of its sites without being liable to content posted on the website.  Italian prosecutors argue that, because Google receives money from advertising, including from web traffic for illegal videos, it has an obligation to take those videos down.^[2]  This is a rather compelling argument, but it has strong implications that have huge consequences for a free web.  If Italy’s case holds, how do corporations find the resources to monitor such isolated areas of its servers?  In any case, multinational websites must deal with the challenges of adapting to different laws in different parts of the world.  Whether the case against Google executives can be claimed as a violation of privacy at all is also subject to question.  Though certainly mean-spirited, it is highly debatable whether simply taking a video in public truly violates privacy.  What caused the Italian government to take the noble act of protecting this disabled boy??  Was it truly just out of a desire to protect privacy that the case was undertaken??  Or were other, potentially even sinister, motives behind the action??

A look at the current situation in Italy may provide the answer.  In November 2011, Silvio Berlusconi stepped down from office after seventeen years as prime minister of Italy.  His “abdication” was the result of problems dealing with the Europe-wide debt crisis.^[3]  In his wake, Berlusconi left what appears to be one of the most censored countries in the European Union, to a degree quite uncommon in the liberal west.  A number of these attempts at censorship have played out on the platform of cyberspace.  A look at Berlusconi’s leadership over the last seventeen years reveals that many of these laws are the result of Berlusconi’s varied efforts to sustain his political leadership and protect his interests as a business tycoon.  A rigid protection of privacy and claims in favor of a more restricted Internet both result from troubles in Italy’s past as well as current abuse of political power.

Italy’s Constitution, written in 1948, looks similar to that of the United States at first glance, but actually is much more nuanced than the fourth amendment.  It decrees that “Personal domicile is inviolable”, similar to the American Constitution’s “…right of persons to be secure in their…houses…”  However, the constitution also decrees that “The liberty and secrecy of correspondence and every form of communication are inviolable.”  This is significantly more specific than the United States’ vague protection of “…papers…”  This has serious implications for modern technology, where forms of communication probably include e-mail or phone conversation.  The constitution does have restrictions akin to achieving a warrant in the US constitution, but goes beyond this by saying that laws for the promotion of “…public health and safety, or for economic and fiscal purposes” may be passed.  Thus, Italy casts a wider net in terms of what can be protected but ultimately seems to give fewer securities against abuse by public politicians.^[4]  Recent events, however, indicate that wide protections for privacy should not be ignored, as they are often claimed by the government in situations where they do not seem to apply naturally or easily.

Because the Italian Constitution does not define privacy extraordinarily clearly, its actions undertaken claiming the right to privacy are probably informed from other contexts or backgrounds.  Some see the differing views of privacy held by Italy and the United States to be indicative of larger trends in the relative importance of rights between Europe and America.  While America is known to decree speech sacred, Europe holds more to privacy as an essential right, and has enforced legislation against the revelation of private lives by mass media.^[5]  Many have recently, however, bloggers have tied Italy’s protections for privacy with Berlusconi’s actions while leading Italy.

Compared with other parts of the European Union, Italy has a great deal more censorship and restrictions on the freedom of speech.  Examples of current laws that show Italy’s censorship include draconian measures on the reporting of the status of warrants and current legal investigations.  Before his tenure in office was finished, Berlusconi introduced several proposals that could have turned Italy into one of the most censored states in the world.  One new proposed law required Internet Service Providers to block access to sites that are decreed by the Minister of the Interior to be illegal.  This would be without a trial and would include such common sites as Facebook.  Passage of this act would have made Italy a strikingly similar place to China.^[6]  Under the law, websites would have had to correct content at the request of any person within 48 hours.  No judge would have been available to approve a correction.  The proposed law was so egregious that Wikipedia took down its Italian webpage as a form of protest.^[7]  A government decree at the end of 2010 required those who put up videos online to seek government licensing just like a television station.  Any proponent of an open net would have recognized the severe risks to Internet freedom posed by these restrictions, since most people will not take the time or effort to obtain authorization.^[8]  The fortunate news for Italy is that these new laws could not apply to sites operating outside of the country, including most prominently YouTube.^[9]  Still, it is no wonder that Italy sees smaller web traffic than similarly developed countries.

Berlusconi realistically justified the rise of censorship laws as arising out of his need for security.  The Facebook fan page of someone who directly attacked the prime minister swelled in popularity after the incident.  Many popular groups arose on the web appeared in support of the criminal.  Italy’s widely restrictive laws could be claimed to be stopping mafia and other terrorist groups that seek to use the Internet to mobilize the masses for illegitimate purposes.^[10]  The issue here is that the government’s restrictions on Internet speech seem to have little relation tot he incident itself.  How does making web sites accountable for illegal language deal with the hatred of the prime minister which led to the popularity of anti-Berlusconi Facebook pages in the first place?  Nevertheless, Facebook remains committed to preventing groups that actively promote violence against an individual, including pages such as “Let’s Kill Berlusconi.”  Similar measures are taken in America for groups that advocate Obama’s death, for instance.  Many of Italy’s goals, essentially, are for the rapid takedown of groups that most consider simply offensive, such as terrorism or pedophilia.^[11]  At what point is censoring “offensive” speech too far, however?

Many would say this would be at the point where the censorship serves only as a goal of protecting political or economic power.  Berlusconi controlled (and still has an influence over) the public and leading private media outlets in the country.^[12]  One of the reasons for the concern about recent decisions on the Internet that restrict content or make third parties responsible is because they may be simply have been a tool to help Berlusconi dominate the press and public opinion.^[13]  He hoped to restrict communication across the Internet for the purpose of drawing people towards government controlled television networks, thus promoting his own political legitimacy.  By seeking to control public opinion, Berlusconi continued already well-founded comparisons of himself to Benito Mussolini, who similarly used propaganda to control public opinion in the Fascist state.

Berlusconi’s interests were also economic.  Berlusconi had interests in real estate and other industries that may have been better promoted in government controlled channels.  Furthermore, he derived profits from the media networks he owned himself.  Another possible economic interest results from fees that can be made off of videos taken from Italian television programs that violate copyright on YouTube.^[14]  The government under Berlusconi did not try to use the Internet itself as a way to promote its own views or to give propaganda, probably because it is so difficult to control.

Therefore, we can see Italy’s fight against Google in a new light.  It is possible that the case was introduced not out of a desire to protect privacy.  In fact, the only privacy that it probably sought was the privacy of the government from hearing government criticism as posted on YouTube.  Italy’s fight against Google probably mostly results from a direct competition with a cyber corporation for power.  Italy’s current situation (a hangover from the days of Berlusconi) has many implications for our own.  On the one hand, increased dedication to privacy and countering terrorism seem like noble uses of the Internet.  As can be seen, however, restriction by the government can go too far too fast.  It is hard to argue that forcing people to seek government authentication before putting up videos is a benefit to our society, and countries should find a fine line between protecting legitimate claims and making sure politicians don’t abuse a vibrant forum of free speech.

China has always had a tumultuous relationship with the Internet. As a nation struggling consistently with questions of human rights, the combination of the instantaneous power and access that the Internet grants and the sheer size of its population means that China has struggled hard to keep the Internet firmly under its control. China had one of its longest-running battles with Google, which fought to avoid having its search results censored within the nation. A very recent episode brought this struggle back into the headlines of American newspapers.

In the US, Congress is currently debating its way through two bills: the PROTECT IP Bill, in the Senate, and the Stop Online Piracy Act (SOPA) in the House of Representatives. If successful, these acts would allow for the United States government to block access to sites hosting pirated content. Former Senator Chris Dodd cited the success of the Chinese government in restricting Google results as evidence that such a move could be implemented. Dodd, as current chairman of the MPAA (an organization directly threatened by piracy), stated that he saw no distinction between these proposed bills and the US government’s current intervention in sites hosting criminal content, like child pornography. [1] Thus, even though Dodd meant his comparison to China favorably, critics have jumped on it as an illustration of just how much of a danger it would be for the US government to enact such legislation. Some even see the acts as going beyond the scope of the Great Firewall of China. After all, China was only censoring results for its own citizens. However, the two current acts, which propose DNS filtering, would affect the Internet for users globally. [2] Thus, critics warn that this move would transform the Internet in America from “a system that punishes illegal actors but favors openness, innovation, and free expression to a closed system that prefers distributed methods of control in the service of powerful interests.” [3]

That said, what are these powerful interests that led China to clamp down so drastically on its citizens’ access to the Internet? It seems that the media’s favorite word for describing China is “transitioning”, an apt choice as it still fights through centuries of fiercely-held traditions and self-governance combining with the Western influences exerted on it more recently. Chinese law, too, is a mish-mash that highlights just how uneasy the transition has been. Supposedly governed by rule of law, Chinese courts still suffer the illegitimacy that comes with rampant bribery and dubiously qualified judges. [4] These judges are only one part of the system used to oversee Chinese citizens’ use of the Internet.

China has only 3 points where fiber optic cables enter the country, carrying the majority of Internet communication: in the north, near Beijing, in the east, near Shanghai, and in the south, near Hong Kong. [5] Because of this, China can monitor quite literally every packet of information that enters the country via the Internet. The famed Great Firewall is but one avenue of defense against citizens accessing information the government deems unsuitable; the entire system is referred to as the Golden Shield Project. If a user is conducting searches the government has deemed inappropriate, there are multiple places the firewall can intervene to prevent the user from accessing the information. The DNS address of a particular website can be blocked, the connection can be reset, or the site can be prevented from loading using delaying commands. [6]

What sorts of searches could elicit such responses? Words such as “democracy”, “political dissident”, and “student federation” will all trigger one of the techniques mentioned above to prevent you from getting to your webpage. Besides restricting knowledge about these political concepts, the government also sought to be a moral authority, as it also blacklisted searches on “sexual massage” and “pornography”.[7] Finally, the Chinese government attempted to revise its history, blacklisting searches for various massacres and journalists, and most famously, any mention of the Tiananmen Square massacre. Even searching for the date the massacre occurred on, June 4^th, is inaccessible to citizens. One of the most enduring photos is of “Tank Man”, a lone protestor blocking the path of a column of tanks. Instantly recognizable throughout the world, this image was blocked on image search, and Chinese citizens expressed genuine bafflement when they first encountered it. [8] The Chinese government is literally shaping its citizens’ images of history.

One newer strategy that China is implementing for this goal is actually monitoring frequently-changing websites for content. Sources of news get exceptionally close scrutiny. A news outlet’s website may be readily accessible for years, but if it should happen to report negatively on problems in Tibet, the page could be taken down as soon as the new story is noted. There’s a term for this in psychology: variable reinforcement, when there is no discernable pattern to how often you are rewarded with the completion of a task. This is hugely significant for discussing the effect that censorship has on the citizens of a country.

The Google chapter of the story ended in March 2010, when Google announced that it was withdrawing from China. [9] Its former domain, google.cn, would be redirecting all searches to google.com.hk, servers based in Hong Kong, which is censored far more leniently thanks to its unique relationship as a special administrative region within China. This came after a long, conflicted relationship, during which Google initially acquiesced to Chinese demands for censorship, was taken down for an entire day via faulty DNS communication[10], and had its servers hacked for information on human rights activists, purportedly by forces within the government. [11]

Google may seem now like a mere footnote in the history of the Chinese Internet – though searches can still be conducted using the server in Hong Kong, it is getting trounced roundly by native competitor Baidu. And, as the Atlantic article points out, the Great Firewall of China is easily overcome. The original Great Wall was an imperfect defense; after all, the wall eventually ended on either side. The Great Firewall can be circumvented by using proxies or VPNs, both readily accessible to Chinese citizens, though VPNs are relatively expensive. [12]

However, the Great Wall managed to nonetheless be effective because it served as resistance against the Mongols, guarding the most crucial parts of China. It didn’t need to encompass all of China to protect it; it merely needed to slow China’s opponents down. The Great Firewall is oddly pragmatic, in the same way. The Internet is a vast, sprawling place, and the Chinese government knows that complete control over it for all of its citizens would be impossible. However, the resistance its techniques offer is enough to frustrate and slow down some citizens who would otherwise turn to dissent. The Great Firewall operates using the idea of variable reinforcement: if you never know for sure whether you will be able to access a certain piece of online information or not, your mental schema of the world becomes that much shakier. Knowledge that should be taken for granted is no longer certain at all.

This, ultimately, is the danger of the legacy left by Google’s struggle in China. And though China is slowly opening up (many of the terms blacklisted on Google are allowed now on Baidu), it serves as an interesting counterpoint to the discussions in the United States about PROTECT IP and SOPA. These acts would allow the US government to decide to restrict access to sites with copyrighted material; the Great Firewall prevented Chinese citizens from accessing sites with viewpoints contrary to the official Chinese party line. These are obviously very different situations, but the United States is definitely currently poised on the brink of a slippery slope. The problem isn’t the content being blocked; rather, it’s the idea that the government should have the ability at all to decide what its citizens can see about the world.

Studying the judicial system in the United Kingdom feels like an interesting distortion of the United States’. Many tenants of common law are of course the same, including the right for a trial to settle disputes between two parties. However, some core values are fundamentally different. For instance, the United States operates under the presupposition that the defendant is innocent until proven guilty, whereas in the United Kingdom, the burden lies on the defendant to prove his or her innocence.[1] This policy leads to interesting ramifications as the UK struggles to sort out new issues brought up by the increasingly important role of the Internet.

One area where UK law is famously tangled is libel. Based on the Defamation Act of 1996, defendants can be prosecuted for libel if they make false accusations in print that demonstrably damage the plaintiff’s professional or personal reputation.[2] As in the US, the plaintiff wins the case if they can prove that the accusations were made out of malice and that the accusations did lasting harm to their reputations. However, UK law also stipulates that the defendant must prove that the accusations are not libelous. This accounts in part for the wild popularity of tabloids in the UK, which often run unchecked with stories that are completely untrue. (Though the celebrities could perhaps easily win lawsuits over the stories, they are wary of the Streisand effect[3], where lawsuits actually propagate information or claims they’d rather keep under wraps).

One of the most significant recent examples of the strength of libel laws in the UK is the case of Simon Singh. Singh, a former columnist for The Guardian, published an article in April 2008, claiming that the British Chiropractor Association (BCA) “happily promotes bogus treatments”. The BCA immediately sued him for libel, and months of debate over the implications of the word “bogus” ensued. In a preliminary hearing, the judge ruled that his statements should be treated as assertions instead of opinions. Though Singh managed to get that ruling overturned in an appeal, which ruled that his statements were fair comment, he had to quit his job at the Guardian to focus on the court case.[4] Sense About Science, a British organization, argues that the initial rulings had a “chilling effect” on the future of science. Science as a field is based on experimentation and evidence, and if a scientist is unable to question another’s findings, the legitimacy that science is established upon immediately becomes threatened.[5]  It’s a pressing concern – if reasoned critiques of alternative therapies and fad medications can be found libelous, where can the public turn for balanced information? This concern extends far beyond the realm of science, however: the UK’s stance on libel means that any commentators who wish to review anything negatively feel jeopardized.

These concerns are well founded: the UK is known as a haven for libel cases, where 90% of cases are won by the claimants.[6] Even in the minority where the claimant does not win, like Singh’s, the costs and effort associated with mounting an adequate defense are enough to make any citizen wary of approaching the boundary into libel. It’s not just citizens of the UK who need to be concerned, however. The law stipulates that even people writing outside the UK are subject to be tried for libel, as long as their work is published within the UK. In an effort to fight this “libel tourism”, President Obama signed the SPEECH Act in 2010, which overturns libel judgments made overseas on Americans if the judgments are made in violation of the 1^st amendment.[7] This move protects Americans against the UK’s overly stringent libel laws, and its popularity has served as a linchpin in UK citizens’ efforts to reform libel law.

Though the Singh case centered on a column in the newspaper, defamation law easily extends to the Internet as well. The UK operates aggressively: websites with potentially defamatory material are immediately sent a notice and taken down. The website owners must then prove the absence of defamatory material before the website can be restored. This is especially troublesome for websites with moderated comments, because a comment with libelous content can cause the entire site to be taken down. [8] Critics describe this policy as “chilling”, echoing concerns about Singh’s case, and “chilling” is an apt descriptor for what the effect this policy has on online discussions, especially websites where users post anonymously. Anonymity has a legitimate place in online discussions: for instance, if you are a parent having trouble disciplining your child, you may want to ask for help anonymously without having it associated with your real-life persona. However, allowing users to comment anonymously puts website owners in danger of being sued for libel, entering into the time-consuming, costly process that forced Singh to quit his full-time job. These concerns led to a committee in Parliament meeting in mid-October 2011 to discuss a draft bill reforming UK defamation law. [9] The bill points out, correctly, that the Internet moves far faster than the analog world, and because of this, a website should only be taken down if it contains libelous information that causes “significant harm”, a far more stringent criterion than the current one. [10] However, the draft bill also suggests that the new leniency comes in part because anonymous comments cannot be immediately deemed trustworthy, which leads to questions regarding the accountability of people’s actions on the Internet. Just like every other country in the world, the UK is still struggling to sort through this, and has yet to decide on the balance between real-life and online identity.

A final, interesting note about law in the UK is its relationship to the EU. Though the UK’s legal system serves as the foundation for many of its former colonies’ legal systems, such as in the US, it is still subject to change because of the UK’s new relationship with the European Union. An example of the EU’s far-extending effects is the Human Rights Act of 1998. The EU Convention of Human Rights ruled that privacy is a human right. Parliament passed the Human Rights Act, but only specified that it applied to public bodies. However, thanks to horizontal effect, the EU reading of the law is often cited in court cases, and the UK is moving closer to this reading as well. [11]