Will There Be A "Virtual Schengen Border" Just...

The civil rights organisation European Digital Rights (EDRI) was founded in June 2002. Currently 28 privacy and civil rights organisations have EDRI membership. They are based or have offices in 18 different countries in Europe. Their newsletter EDRI-gram even goes as far as to say:

"[...] On 20 April 2011, at an event in the European Parliament entitled "Creative Industries: Innovation for Growth", the French European Commissioner for the Internal Market, Michel Barnier, announced plans to make focus on Internet providers to enforce intellectual property. He explained that he did not want to "criminalise" consumers and therefore would put the pressure on online intermediaries (who will then police and punish the consumers instead).

[...]

In 2008, the French EU Presidency developed plans for a "Cybercrime Platform" to be run by Europol, as a means of collecting reports of illicit/unwanted content from across Europe, acting as an "information hub" with the reasonably obvious intention of a harmonised approach to blocking web content.

This approach was further developed in the Internal Security Strategy from 2010, which said ominously that "while the very structure of the internet knows no boundaries, jurisdiction for prosecuting cybercrime still stops at national borders. Member States need to pool their efforts at EU level. The High Tech Crime Centre at Europol already plays an important coordinating role for law enforcement, but further action is needed."

The European Commission immediately took the initiative and offered funding for projects that supported "the blocking of access to child pornography or blocking the access to illegal Internet content through public-private cooperation" - expanding blocking both to content of any kind and to extra-judicial blocking, in contravention of the European Convention on Human Rights and the EU Charter of Fundamental Rights. As a result, European police forces were given a grant of 324 059 Euro to lobby for blocking in the EU.

All of these developments have now led to the proposal for a "Great Firewall of Europe", as demonstrated by an EU Council presentation published this week by EDRi. This would harmonise the EU's approach to content that it wished to stop at the EU's borders, following the same logic as the "Great Firewall of China" which censors unwanted content from outside China's jurisdiction. Ironically, both the European Commission and Council of Ministers are now claiming that such a blocking plan was never the intention and are distancing themselves from the proposal - even to the point of rewriting the minutes of the meeting where the proposal was discussed.

In summary, therefore, the EU/China internal policy on censorship will be based on the European model of censorship by proxy, whereby Internet intermediaries undertake the work. For unwanted traffic from outside the EU, the Chinese model of a "virtual border" is being pushed forward, despite recent protestations of innocence from the EU institutions."

"During a meeting in February 2011 of the Council of the European Union's Law Enforcement Work Party (LEWP), a forum for cooperation on issues such as counter terrorism, customs and fraud, a disturbing proposal was tabled to create a "Great Firewall of Europe" by blocking "illicit" web material at the borders of the bloc with the intention to "to propose concrete measures towards creating a single secure European cyberspace."

According to the proposal, the secure European cyberspace would have a "virtual Schengen border" and "virtual access points" whereby "the Internet Service Providers would block illicit contents on the basis of the EU blacklist".

Some of the concerns raised by civil liberty groups are that there is no clarification as to what this "illicit content" means and that innocent sites are routinely included on such blacklists. Broadband providers are very concerned by this proposal which would actually impose Europe-wide censorship and believe that illegal content should be removed at the source by the cooperation between the police and web hosting firms and not by network blocking which, being easy to circumvent, is no real solution.

"Most absurd of all, despite all of the costs in terms of democracy, freedom of speech and even the economy, there is no analysis of any benefit or expected benefit that, even mistakenly, the architects of this madness expect to outweigh the cost", stated EDRi Advocacy Coordinator Joe McNamee."

Of course, such reports have to be dealt with caution. The reason is not that such reports do not have any truth in it. To the contrary, I am rather convinced that certain circles within the EU institutions may indeed feel a strong desire to subjugate the Internet seen as 'anarchistic' under their rules by forcing a complete U-turn regarding the role if the intermediaries, namely the Internet Service Providers (ISPs). Under current EU law, ISPs are privileged by the 'mere conduit' doctrine. Under the mere conduit principle of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce') network operators have, under certain circumstances, no legal liability for the consequences of traffic delivered via their networks:

Article 12
"Mere conduit"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission.

2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.

In my view, an amendment of this Article would be necessary if the above-reported rumours prevail. However, as it is well known, the various Directorates of the EU Commission are used to have differing views on vital matters of EU politics. This especially holds with regard to Internet regulation and politics on Intellectual Property. Yesterday, Ms Neelie Kroes, European Commissioner for Digital Agenda and Vice-President of the European Commission, wrote on Twitter:

Taken literally, the Twitter posting of Ms Kroes does not constitute something like an "all clear" signal: She merely has told us that "the EU Commission" - in its entirety and as a body within the EU Treaties - currently does not have any intentions to install a mandatory Internet filtering infrastructure. She did not assert that nobody within the EU Commission currently is mooting to impose draconian censorship rules on the Internet.

It appears to be quite clear that the plans possibly mooted by Mr Barnier and like-minded pressure groups could do severe harm to civil rights and to the European civil society in its entirety. Mr Eric Schmidt, former CEO of Google, warned on Wednesday that government plans to block access to illicit filesharing websites could set a "disastrous precedent" for freedom of speech. Mr Josh Halliday recently wrote in the Guardian:

"Speaking to journalists after his keynote speech at Google's Big Tent conference in London, Schmidt said the online search giant would challenge attempts to restrict access to the Pirate Bay and other so-called "cyberlocker" sites that encourage illegal downloading – part of government plans to fight online piracy through controversial measures included in the [UK] Digital Economy Act."

Introducing policing of the Internet by ISPs under false pretences of enhancing enforcement of Intellectual Property would, in the effect, be equal to a Trojan Horse launched to wreck that what is known as Net Neutraility.

Hopefully we'll not come that far into the wrong direction. It would surely also harm innovation in the digital age in Europe.

(Photo at the top of this posting (C) 2011 by EU Commission (Ref: P-018745/00-11Date: 13/04/2011))