ISP Censorship

With the rise of the Internet, our nation is now experiencing an unprecedented level of information exchange and availability. Although our government has spent the last 200 years defining what kind of material can be transmitted in public and in print, such definitions dont necessarily apply in the realm of cyberspace. The case of the Nuremberg Files illustrates this very fact that such First Amendment issues are not always for our government, or at the very least the US government, to decide. Increasingly, cases in the US regarding censorship and free speech are judged by Internet Service Providers, or ISPs, on whose servers such controversial websites are housed, while foreign governments struggle to come to a decision on these same issues. Because the Internet is so recent, precedent for such cases is still being defined, and as the number of websites on the Internet grows, the matter of ISP censorship will assuredly move to the forefront of legal and political debate.

The acceptance of a wide variety of social and political viewpoints is one of our countrys defining features. Nevertheless, very often extremist groups will push the limits of protected speech, and in doing so, offend a large portion of our population. Courts traditionally have allowed such speech, but as the Nuremberg Files demonstrates, ISPs are not always as forgiving. Christiangallery.com, the site that housed the Nuremberg Files, originally was hosted on the servers of MindSpring Enterprises. Nevertheless, once the Nuremberg case had been decided, MindSpring shut down the site on February 5, 1999 and issued a press release stating that The site was in violation of our appropriate use policy, and we have no plans to restore it.1 Although the judge had ruled against the defendants in the case, no court order to shut down the site had been issued, and thus MindSpring had no legal obligation to do so. The only part of MindSprings appropriate use policy which relates to the Nuremberg Files states simply that Threats of bodily harm or destruction of property are always prohibited.2

The Nuremberg Files quickly reappeared, however, under the domain of Plebeian Systems, a small Cincinnati ISP. Nevertheless, a few weeks later, the site was shut down again, but not because Plebeian Systems took issue with the site. Instead, the T-1 provider to Plebeian systems, OneNet Communications, threatened to cut off Internet access to the smaller company if it did not remove the site. An employee of Plebeian was quoted as saying, Our upstream provider forced us to take it down. They were getting too much heat and email. It kind of sounds like they were blackmailed into it.3 Interestingly enough, however, OneNets usage policy doesnt state anything about threats specifically, and contains an indemnification policy which frees it from liability for content placed on its system.4 Nevertheless, OneNet asserts that the language is part of OneNets agreement with its T-1 clients.5 In an ominous follow-up report, OneNet systems wrote the following message to Plebeian systems explaining its decision:

It is only a matter of time until we get pressure from above regarding you--they have done it many times in the past with spammers and pornographers that were downstream from us...None of those businesses are around today. These people will go after each link of the chain until one of the links break.6

The identity of those from above is unclear, but makes it appear that OneNet can pick and choose to whom it resells Internet access based on the content they host. This situation seems to be a chilling and possibly unprecedented case of a large or top-tier ISP filtering content not directly controlled or even related to its operation. Without any sort of regulation or recourse, it seems that cases like this could only increase with time.

Such stories of voluntary ISP censorship first began to receive attention in the early 90s. One of the first cases involved Prodigy, a pioneer in the online services market. In October, 1991, a heated discussion took place on its bulletin boards about the authenticity of Jewish persecution during World War II. Specifically, certain members posted messages which were offensive to Jews and other users of the service.7 Prodigy initially did nothing, but after receiving complaints from its members and groups including the Anti-Defamation League, it removed the offensive messages and changed its policy to ban messages which were grossly repugnant to community standards.8 This was in spite of the fact that, according to a report by Shari Steele, Staff Attorney for the Office of Policy Analysis and Development of the National Telecommunications and Information Administration, The discussion on Prodigy turned out to be a rather fair exchange...the hate speech was exposed as being just that -- hate speech -- and the posters of the messages had a tough time convincing the other users in the merits of their assertions.9 Although the report states that more users complained about Prodigys new policy than about the original hate speech, Prodigy maintained its position. As the report duly noted, Prodigy had every right to engage in censorship of its members, because unlike the government, it was privately owned, and thus had no Constitutional mandate to allow free speech.10

More recently, America Online has come into the spotlight for its censorship policies. Early on, AOLs policies regarding hate speech were not clearly defined or enforced. In a case in April, 1997, AOL received criticism for hosting a member web page which promoted the Ku Klux Klan. Abraham H. Foxman, the national director of the Anti-Defamation League, called on the president of AOL to take the site down, not because it violated American law but because it went against the stated appropriate use policy of AOL. Another ADL representative commented that, [AOLs hosting of the site] constitutes a statement that they dont think these views are offensive under their standards, and that sends a message.11 Nevertheless, when a similar controversy arose four months later over a site with information, musings and artwork about serial killers, AOL chose to promptly remove it from its system within 24 hours of receiving its initial complaints. By this time, an AOL spokesman admitted that We believe in a persons right to speak, but we dont believe individuals have a right to force us to associate with that speech.12 This comment was in spite of the fact that the stated purpose of the site was to gain insight into how serial killers think, versus the explicit promotion of a hateful viewpoint or call to action which is common of extremist sites.13 Nevertheless, AOL had clearly become more diligent in either enforcing its own rules or responding to public criticism.

Indeed, such content-neutral ISPs are not as common, but are still readily available to host sites for extremist groups. One such example was Cyber Promotions, who in 1997 received attention for hosting the site www.gothatesfags.com. Containing what clearly is condemning and inflammatory material against homosexuals, the site had been kicked off a number of other ISPs before finding a home on Cyber Promotions. Upon inquiry, Cyber Promotions president Sanford Wallace said We dont care about the content of Web pages...were just the conduit. We dont support or condone any site that would involve hate.14 While the site is now no longer hosted on Cyber Promotions website, it is still accessible and updated. Other ISPs have taken an even more aggressive standpoint in maintaining the free speech of their customers. In May, 1997, Overland Network and Internet Texacoma, two Texas ISPs, refused to turn over information about a successionist group whose site they hosted to the state attorney general. While Overland Network reluctantly complied with law enforcement and shut the site itself down, it did not turn over copies of email and logs of Web site visitors that the attorney general had asked for. Nevertheless, Overland did acknowledge that it would comply with a court order if one was provided.15 Such thorny free speech and privacy issues are clearly disincentives for ISPs to host the sites of extremist groups or other controversial subject.

Legal attempts to address this issue of free speech on the Internet have and are continuing to be made, most notably starting in 1996. In that year, Congress passed the Communications Decency Act, which states in Section 230(c)(2):

No provider or user of an interactive computer service shall be held liable on account of -- any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be...excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.16

By this language, then, no ISP would or should be held liable for extremist material. The courts concurred with this interpretation in a 1998 lawsuit against AOL and Internet writer Matt Drudge. In the case, White House aid Sidney Blumenthal had sued both the writer and AOL for libel after a false story about Blumenthal had been initially posted on AOLs online service. The court dropped AOL as a defendant, noting in its commentary that Whether wisely or not, [Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability...with respect to material disseminated by them but created by others.17 Such a precedent makes it increasingly unlikely that United States ISPs will be held liable for offensive, false or extremist speech in the future.

Nevertheless, because of the multinational nature of the Internet, law set in the US doesnt necessarily hold in other countries. For example, the Indian government is currently debating an act which would let law-enforcement agencies use any message intercepted through an ISP in court, and would allow ISPs to be held responsible for illegal acts committed over their networks.18 More stringent examples of foreign censorship can be found in China, where, according to a report in ZDNN, ISPs must register with the government, and users must obtain a government permit before they can open an Internet account.19 In addition, the government controls the three Internet pipelines entering the country, so it is able to perform top-level censorship. Perhaps a more relevant case of capitalist countries engaging in censorship is Singapore, whose laws already hold ISPs responsible for what users download over their networks. Further, sites in Singapore dealing with political or religious matters are restricted or censored by the government.20 While these examples may seem far from home for American interests, recent news shows just the opposite. Yahoo, one of the largest sites on the web, recently opened an office in Hong Kong to start a Chinese language directory. Jerry Yang, founder and spokesman for Yahoo, acknowledged that Yahoo is in communications with the government in the Chinese mainland to determine acceptable content, but conceded that We dont like to be censored, we wont be censored unless its of our own volition.21 While so far it has not been the case, such an attitude could easily come into conflict with foreign authorities. A more startling example for American Internet companies doing business abroad can be found in a German case against an individual manager at CompuServe in 1998. A Bavarian court convicted CompuServe manager Felix Somm of distributing child pornography and other illegal material over the Internet because CompuServe did not take enough measures to block access to the material.22 While the main content in question was pornography, extremist speech in Germany is regulated just as heavily. This decision was even more surprising given an earlier law passed in Germany which stated that ISPs wont be held liable unless they have knowledge of such content and blocking its use is both technically possible and can be reasonably expected, something which most experts agree can never be the case due to the sheer size of Internet.23 These Asian and European examples simply go to show that American rulings and ideologies about the Internet can easily be reversed as one travels the globe.

The issue of ISP censorship has come to a crossroad. On the one hand, the Congress has decided and the courts have concurred that ISPs are exempt from the legal responsibility of censorship. Nevertheless, it is clear that foreign countries do not always share the mindset of the United States courts, and it remains to be seen how this will affect multinational Internet companies. But for those companies located in America, is freedom from government censorship nothing more than restriction at the hands of popular opinion? Might ISPs simply fall subject to whatever is politically correct at the time, blocking anything considered controversial and offering only a skewed viewpoint in the pages they serve? David Sobel, general counsel at the Electronic Privacy Information Center, acknowledged that a person who has material taken down doesnt have any recourse when an ISP, reacting to public sentiment, decides to remove something because its controversial.24 Such a scenario is more possible than one might think, especially given top tier censorship like that which occurred with the Nuremberg Files. Or perhaps the issue of ISP censorship will progress in an entirely different direction, and the world will witness more extremist speech in cyberspace, as determined website producers seek out ISPs able to avoid down the line censorship or those indifferent to public opinion. Whatever the case may be, ISP censorship on the Internet is now unquestionably in a state of evolutionary flux. Only time will tell how the architects of the Internet will choose to face this challenge.

1 Aquilar, Rose. ISP shuts down antiabortion site. News.com. 5 Feb. 1999. Accessed on: 7 Mar. 1999. http://www.news.com/News/Item/0,4,32025,00.html

2 MindSprings Appropriate Use Policy. MindSpring Enterprises. Accessed on: 7 Mar. 1999. http://www.mindspring.net/aboutms/policy.html#section1

3 Macavinta, Courtney. Judge slams anti-abortion site. News.com. 26 Feb. 1999. Accessed on: 7 Mar. 1999. http://www.news.com/News/Item/0,4,32977,00.html

4 Usage Policy. OneNet Communications, Inc. Accessed on: 7 Mar. 1999. http://www.one.net/policy/#RULES

5 Ibid.

6 Macavinta , Courtney. Anti-abortion sites vs. free speech. News.com. 12 Mar. 1999. Accessed on: 13 Mar. 1999. http://www.news.com/News/Item/0,4,33670,00.html

7 Hyman, Avi-Jacob. How to Deal with the Dissemination of Racist and Holocaust-Denial Information via Electronic Media, particularly the Internet. Electronic Frontier Foundation. Mar. 1995. Accessed on: 7 Mar. 1999. http://www.eff.org/pub/Censorship/Hate-speech_discrimination/ holocaust_censorship_paper.draft

8 Steele, Shari. Notice of Inquiry; Request for Comments

Role of Telecommunications in Hate Crimes. Office of Policy Analysis and Development NTIA. 26 April, 1993. Accessed On: 7 Mar. 1999. http://www.eff.org/pub/Censorship/ Hate-speech_discrimination/telecom_hatecrime_paper.eff

9 Ibid.

10 Ibid.

11 Bray, Hiawatha. America Online rapped for allowing pro-Klan site. Boston Globe. 9 Apr. 1997:A1. Nexis.

12 Sarche, Jon. America Online To Remove Sites Containing Serial Killer; Art. The Buffalo News. 13 Sept. 1997:3A. Nexis.

13 Ibid.

14 Cyber Promotions hosts hate site. News.com. 24 Apr. 1997. Accessed on: 7 Mar. 1999. http://www.news.com/News/Item/0,4,10055,00.html

15 ISP battles for rebels rights. News.com. 2 May 1997. Accessed on: 7 Mar. 1999. http://www.news.com/News/Item/0,4,10327,00.html

16 United States Congress. Telecommunications Act of 1996 Feb. 1996. http://www.aop.org/legis/tca96.txt

17 ISPs Libel-Proof, Judge Holds. Editor And Publisher. 25 Apr. 1998. Accessed on: 12 Mar. 1999. Nexis.

18 Maclachlan, Malcolm. India Warns Against U.S. Security Software. TechWeb. 14 Jan. 1999. Accessed on: 12 Mar. 1999. http://www.techweb.com/wire/story/TWB19990114S0018

19 Broersma, Matthew. China not alone in restricting Internet. ZDNN. 31 Dec. 1997. Accessed on: 12 Mar. 1999. http://www.zdnet.com/zdnn/content/zdnn/1230/267758.html

20 Ibid.

21 Taylor, Neil. Yahoo Opens Hong Kong Office, Wont Rule Out Censorship. Newsbytes. 28 May 1998. Nexis.

22 Guglielmo, Connie. CompuServe Exec Convicted In German Pornography Case ZDNN. 29 May 1998. Accessed on: 13 Mar. 1999. http://www.zdnet.com/zdnn/content/inwo/0529/320141.html

23 Macavinta, Courtney. U.S. weighs German ISP law. News.com. 7 Jul. 1997. Accessed on: 13 Mar. 1999. http://www.news.com/News/Item/0,4,12201,00.html

24 Macavinta, Courtney. Anti-abortion sites vs. free speech. News.com. 12 Mar. 1999. Accessed on: 13 Mar. 1999. http://www.news.com/News/Item/0,4,33670,00.html