Privatised Online Enforcement Series: B. Is "Self-Regulation" Worse Than Useless?
under CC-BY license Contribution by Joe McNamee - EDRi
Much of the policy with regard to "self-regulation" in the context of illegal online content is developed on the basis that anything that industry can do to help fight crime is automatically a good thing. The assumption is that, however distasteful it is that private companies should be regulating and enforcing the law in the online world, it is better that "somebody" is doing "something". The reality is, however, very different.
The first area where Internet intermediaries started enforcing the law is in relation to child abuse images. The European Commission funds "hotlines" to receive reports of child abuse images and these send reports to law enforcement authorities and Internet hosting providers and, sometimes, Internet access providers. Law enforcement authorities are supposed to play their role in investigation and prosecution, while Internet providers are supposed to play their role, in diligently and within the rule of law, removing content that has been shown to be illegal and supporting collection of evidence by law enforcement authorities.
At a recent meeting of the European Commission "dialogue" on dissemination of illegal content within the European Union", the Safer Internet Unit of the Commission gave a different and more worrying analysis. A representative explained that many EU police forces did not prioritise online child abuse and even if it was on the priority list in some countries, it was at the bottom. The proposal was made, therefore, that hotlines should send reports directly to Internet hosting providers to delete the websites. The fact that this would facilitate and propagate the alleged inaction of the police appears not to be a consideration.
This approach is confirmed by the European Commission's guidelines for co-funded hotlines on notice and takedown (that are, unsurprisingly, not publicly available), which suggest that agreements should be signed between the hotlines and the police. These guidelines suggest that "the agreement should preferably stipulate a deadline for the police to react after which the hotline would proceed with giving notice". In other words, law enforcement authorities would be assured that, if they remained wholly inactive for an agreed period, the evidence of their failure to address serious crimes would be diligently hidden by the hotlines, in cooperation with well-meaning "industry self-regulation".
This is, unfortunately, far from the only example. As mentioned above, hotlines also contact Internet access providers. In some countries, these take it upon themselves to undertake technically limited "blocking" against sites identified as being illegal. In Sweden, for example, ISPs "block" sites and receive an updated list from the police every two weeks. The pointlessness of this whole process is shown by the fact that, while the lists are updated every 14 days, the British hotline, the IWF, has produced statistics showing that the average length of time the sites remain online is only twelve days. In other words, on average, there are no functioning sites at all on the "blocking" list one day out of every seven.
Unfortunately, this activity is not just useless, it is worse than useless. In a speech given to the German Parliament, a Danish police official explained that, having "blocked" the websites domestically, the police in that country do not see any point in communicating evidence of serious crimes against children to the police forces in the United States and Russia, because they probably wouldn't be interested. It is difficult to imagine another crime which would be treated in such a trivial way.
Reports from the European Commission are that there will be a major push to increase the "safer internet" budget, which is currently being reviewed. As yet, there are no signs that any lessons are being learned regarding the failures of "self-regulation" under the current programme.
Internet Watch Foundation Annual Report 2010 (pdf)
EDRi-gram: Dialogue on illegal online content (28.06.2010) (pdf)
Child abuse is difficult to stop on the web (only in Swedish, 29.09.2010 - pdf)
Danish police statement (pdf)
Privatised Online Enforcement Series A. Abandonment of the rule of law (23.03.2011) (pdf)
