Founder and Director: Yaman
Akdeniz , LL.B, MA
E-mail: firstname.lastname@example.org Tel: +44 (0) 7798 865116 - Fax: +44 (0) 7092199011
Mail Correspondence Address: Cyberlaw Research Unit, Centre For Criminal Justice Studies, University of Leeds, Leeds LS2 9JT, UK.
Who Watches the Watchmen: Part II
Cite as: Cyber-Rights & Cyber-Liberties (UK) Report, Who Watches the Watchmen Part II: Accountability & Effective Self-Regulation in the Information Age, September 1998 at http://www.cyber-rights.org/watchmen-ii.htm
A Cyber-Rights & Cyber-Liberties (UK) Report written by Yaman Akdeniz
Cyber-Rights & Cyber-Liberties (UK) © 1998-2001
Table of Contents
The second in the series of the Who Watches the Watchmen report by Cyber-Rights & Cyber-Liberties (UK) is entitled "Accountability & Effective Self-Regulation in the Information Age". This new report describes the new developments since the publication of the Who Watches the Watchmen report in November 1997 in a critical and analytical way; provides assistance to the government agencies for the review of the Internet Watch Foundation; and reviews the IWF consultation document on rating systems.
This second report questions the current solutions offered at various foras such as the development of rating and filtering systems and further the report suggests that these may not be the real answers and solutions for the existence problems.
The report concludes that government inspired and enforced pre-censorship is no more different than government-imposed censorship. Such restrictions and complex regulations would make Britain, like any other jurisdiction that goes too far, a very hostile place for network development.
In November 1997 Cyber-Rights & Cyber-Liberties (UK) published a report entitled "Who Watches the Watchmen: Internet Content Rating Systems, and Privatised Censorship". The purpose of this report was to highlight and explain the serious implications of the use and development of rating systems and filtering tools for Internet content both at a national and international level. The report also included a critique of the involvement of the Internet Watch Foundation, a self-regulatory body set up initially as a hotline but which is also involved with the development of rating systems for Internet content at a UK level.
The report was downloaded over 10000 times (statistics August 1998) since its publication and attracted world wide interest.
Following the publication of the Who Watches the Watchmen report in November 1997, there have been major developments in this important debate -
In January 1998, the Better Regulation Task Force published its "Critics Guide to Good Regulation" leaflet which included the principles of good regulation.
In March 1998, the Internet Watch Foundation announced its long awaited consultation paper, "Rating and Filtering Internet Content - A United Kingdom Perspective," for the development of rating systems at a national level.
In March 1998, the government (through the DTI) announced a detailed review of the Internet Watch Foundation.
In April 1998, the Department of Trade and Industry published the "Secure Electronic Commerce Statement".
In May 1998, the House of Commons Select Committee on Culture, published a report entitled "The Multi-Media Revolution," referring to Internet content regulation. The report also included recommendations in this field.
This second follow up report entitled "Who Watches the Watchmen Part II," intends to do the following:
- Describe these new developments since the publication of the Who Watches the Watchmen report in November 1997 in a critical and analytical way;
- Provide assistance to the government agencies for the review of the IWF;
- Review the IWF consultation document on rating systems;
- indicate more appropriate approaches to the regulation of Internet content
The emphasis will be on the issues of illegal and harmful content regulation, but the report may be of use to other areas of Internet regulation where self-regulatory approaches are preferred by the government and by the Internet industry.
The initial Cyber-Rights & Cyber-Liberties (UK) report which was published in November 1997 provided an overview of Internet content regulation within Britain and elsewhere. The introduction and development of both hotlines for reporting illegal Internet content and rating and filtering systems for Internet content which is legal but considered harmful or offensive to certain groups of people follow from the self-regulatory approaches favoured by both the UK government and also by the European Union. These new technologies are introduced and presented as a means to avoid heavy handed public regulation of Internet content by governments, but there are many problems, however, associated with both the utility and use of hotlines and rating and filtering systems as were pointed out by the CR&CL(UK) November 97 report.
It is important to set the background with the current state of Internet content regulation within the United Kingdom before moving into the other sections of this report.
UK Government Approach to Internet Content Regulation
The UK government favours self-regulatory solutions(1) for Internet content regulation rather than the introduction of legal solutions. The views of the UK government are consistent with the developments in this field at the European Union level.(2) But the preferred solutions for the availability of illegal and harmful content have not been carefully assessed or examined by the UK government so far and some of these initiatives favoured by the government but enforced or developed by quasi-governmental bodies would almost amount to censorship of legal Internet content.
Their possible drawbacks include (1) the effectiveness of Internet hotlines for reporting illegal content at a national level; and (2) the serious implications for freedom of expression by the use of the current technologies such as rating systems to be used for a certain type of Internet content deemed as harmful. In other words, most of these systems are currently defective as they can be used for the exclusion of socially useful information on the Internet. At the same time, these defective systems give only a false sense of security for the concerned Internet users.
Internet Watch Foundation ("IWF"), a self-regulatory body supported by the UK government, was announced in September 1996 initially as a hotline to deal with the existence of illegal content on the Internet. But the IWF also deals with the development of rating systems at a UK level, and in February 1998 they recommended these systems as the best way to deal with the availability of harmful Internet content especially for minors.
The Department of Trade and Industry and the Home Office played key roles in the establishment of the self-regulatory body, the Internet Watch Foundation. According to Mrs Roche of the DTI, "as part of its remit to help ensure that the Internet can be a safe place to work, learn and play, the IWF has convened an advisory board comprising representatives of content providers, childrens charities, regulators from other media, ISPs and civil liberties groups, to propose a UK-focused system for rating Internet content".(3) In fact, no civil liberties organisations were involved or consulted as was pointed by the CR&CL(UK) November 1997 report, leaving the IWF a predominantly industry based private organisation with public duties.
Illegal Content - Hotlines
The activities of the IWF mainly concentrated on the Usenet discussion groups in its first year of activity. According to the IWF annual report which was published in March 1998 (and covers the period between December 1996 and November 1997), there have been 781 reports to the Foundation from online users and in 248 of them action was taken (206 involved child pornography, 16 adult pornography, 12 financial scams and 9 other). These reports resulted in the review of 4324 items, and the Foundation has taken action in 2215 of them (2183 referred to the Police and 2000 to ISPs). 1394 of these originated from the US while only 125 of the items originated from the UK.(4) Once the IWF had located the "undesirable content", mainly child pornography, IWF informed all British ISPs and the police. Despite the efforts of the UK organisation, only a handful of individuals have been charged with offences related to child pornography and there are no reported cases so far.
These figures tell us little as the actual amount of child pornography on the Internet is unknown. It is, therefore, difficult to judge how successful the UK hotline has been. Another downside is that the efforts of the organisation are concentrated on the newsgroups carried by the UK ISPs. This means that while illegal material is removed from the UK ISPs servers, the same material will continue to be available on the Internet carried by the foreign ISPs in their own servers. The expensive monitoring of the Internet at a national level is of limited value as the few problems created by the Internet remain global ones and thus require global solutions.
It is encouraging that only six per cent of the reported illegal material originates from the UK and that there are only a few criminal charges. This also suggests that the problems are located mainly elsewhere (in fact, especially within the USA). While the UK government should involve with finding solutions to global problems with its international partners, the global problems do not justify expensive monitoring of the Internet at a national level by industry based organisations.
Undoubtedly, the availability and distribution of child pornography should be regulated, whether on the Internet or elsewhere. The main concern of enforcement authorities should, however, remain the prevention of child abuse - the involvement of children in the making of pornography, or its use to groom them to become involved in abusive acts.(5) It was reported recently by the Home Department that the National Criminal Intelligence Service ("NCIS") Paedophile Section has spent £53,027 (1995-96) and £61,672 (1996-97) on gathering information on all forms of paedophile activity.(6) More money should be spent in gathering information about paedophiles and online paedophilia activity rather than spending the available resources on partial solutions which do not necessarily reduce the real life problem of child abuse.
Harmful Content - The UK Perspectives on Rating and Filtering Technologies
In February 1998, the Internet Watch Foundation, announced its consultation paper for the development of rating systems at a national level.(7) According to an IWF press release, rating systems would "meet parents concerns about Internet content that is unsuitable for children." According to John Battle, Minister for Science, Energy and Industry, "such ratings and filtering tools can be extremely useful in helping parents and other adults who care for children to decide on the types of legal material they wish their children to access."(8)
The so called consultation document by the IWF does not discuss whether these systems are suitable for Britain or whether they are needed at all. A decision has already been taken by the UK organisation to develop these systems, and the consultation paper addresses how to develop these systems and has a set of recommendations which suggest that the decision in principle has already been taken - rating systems are good and should be developed for use in Britain. That the IWFs mind is fixed is evidenced by the fact that they have released a questionnaire related to the development of rating systems on June 18, 1998 via e-mail (this questionnaire does not exist within the organisations web site).
The arbitrary decision taken by the IWF consultation document is supported by the UK government and by the members of the Parliament. For example, Mr Alun Michael of the Home Office recently stated that:
"We also encourage other non-statutory schemes which are designed to protect young people from unsuitable material such as the working group of representatives from the Internet Watch Foundation and Internet Service Providers which is devising a common ratings system for United Kingdom Internet Users "(9)
In another occasion Mr Michael stated that:
"Filtering software packages, such as Net Nanny, are available which enable parents to deny access to material containing sexually explicit words. Building on this, a working group of representatives from the IWF and Internet Service Providers has been devising a common ratings system suitable for United Kingdom Internet users on which there is growing international co-operation. This system is expected to address legal, but potentially offensive, material without curtailing freedom of expression. The Foundation aims to work on this system over the next 18 months and, once it is available, expects it to extend to newsgroups as well as web sites."(10)
Support for the development of rating systems by the IWF was also given by Lord Clinton-Davis:
"We support the work of the Internet Watch Foundation, including their efforts to develop a system for rating the content of Internet sites, and encourage the use of filtering tools by parents."(11)
In April 1998, Paragraph (iv) of the DTIs Secure Electronic Commerce Statement (entitled "Internet content") which was mainly concerned about the regulation of the use of encryption technology and the development of electronic commerce stated that:
"As the Internet becomes a mass medium it is only right to ensure that the most vulnerable users are protected. This has meant supporting, and encouraging, such initiatives as the Internet Watch Foundation (IWF) to ensure that the law is applied on-line in the same way as it is off-line."(12)
Most recently, support to the IWF was given by the Prime Minister, Tony Blair:
"The Government support the work of the Internet Watch Foundation which was established in September 1996 by Internet Service Providers primarily in response to growing concern about child pornography on the Internet. The Foundation passes all child pornography reports to the National Criminal Intelligence Service who route these to the relevant enforcement agency of the country concerned when the material appears to have originated outside the UK."(13)
Similar statements were given through the UK Parliament within the last two years.
Despite the establishment consensus, it would be more appropriate to establish a Working Group, with both representatives from the public and private sector to assess the real problem of illegal and harmful content at a UK level rather than trying to find temporary or ineffective solutions to activities which do not necessarily take place within the British jurisdiction. Such a Working Group was established by the Irish Department of Justice, Equality and Law Reform to deal with these issues in 1997. The Irish Working Group published its 100 pages long first report entitled "Illegal and Harmful Use of the Internet," on July 8, 1998. Such a substantial study together with a public consultation on this field is needed before moving forward. It is therefore, the duty of the UK government to set up such an independent working group which would assess the real amount of problems and seek the best solutions.
Internet Watch Foundation Consultation document on Rating Systems
The technology is limited
Although the use and development of rating systems are welcome by various governments including the UK government, their capacity is limited to certain parts of the Internet.
These systems are designed for World Wide Web sites while leaving out other Internet related communication systems such as the chat environments,(14) file transfer protocol servers ("ftp"),(15) the Usenet discussion groups, real-audio and real-video systems which can include live sound and image transmissions, and finally e-mail systems. These systems cannot be rated with such systems known as PICS or RSACi and therefore the assumption that rating systems would make the Internet a "safer environment" for children is wrong as the WWW content represents only a fraction of the whole of the Internet content.
Even when the rating technology is applicable, it is not clear what the regulators have in mind when it comes to what sort of content should be rated. For example, according to the UK Internet Watch Foundation, there is "a whole category of dangerous subjects" that require ratings and these are information related to drugs, sex, violence, information about dangerous sports like bungee-jumping, and hate speech material.(16) This kind of content would certainly include such publications as the Anarchists Cookbook which can be downloaded from not only WWW sites(17) but also can be obtained through ftp servers or through the use of automatic e-mail services apart from its availability through well-known bookshops such as Waterstones and Dillons within the UK.
Therefore, rating systems would not in any way be a complete solution to content deemed harmful to minors.
Third Party Rating Systems Pose Free Speech Concerns
It should also be noted that the use of third-party ratings systems pose free speech problems and with few third-party rating products currently available, the potential for arbitrary censorship increases (note that no UK based third party rating body exists currently). This would mean that there will be no space for free speech arguments and dissent because the ratings will be done by private bodies and the governments will not be involved "directly." When censorship is implemented by government threat in the background, but run by private parties, legal action is nearly impossible, accountability difficult, and the system is not open or democratic.
The currently available technology is defective
These systems are defective and in most cases they are used for the exclusion of socially useful web sites and information. The general excuse remains the protection of children from harmful content and also the duty of the industry to give more choices to the consumers. Filtering software and rating systems will be used to exclude minority views and gripe sites rather than protecting children from anything. The Internet remains a wonderful resource for online users including children and it should be their parents responsibility on what they access or not. Therefore, the parents should be educated and empowered on the benefits of the Internet rather than creating a "moral panic" which deters Internet access.
It should also be noted that the currently available filtering products are produced within the USA and therefore they do not represent the moral and cultural background of the British society. It would be wrong to leave your children in the hands of US based private companies.
Educate your children rather than placing your trust in technology or in an industry that believes it can do a better job of protecting children than parents. The message is to be responsible parents not censors.
Children are not the only Internet users
The Internet is not only accessed an used by children, and it is not possible to get an Internet account through an Internet Service Provider before the age of 18 in almost all countries. Therefore, any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional and universal prohibition on using the Internet to distribute content that is freely available to adults in other media. The US Supreme Court recently stated in Reno v. ACLU, 117 S. Ct. 2329 (1997) that "the Internet is not as invasive as radio or television and confirmed the finding of the US Court of Appeal that "communications over the Internet do not invade an individuals home or appear on ones computer screen unbidden." Thus, the wish of lazy parents to allow unsupervised access to their children should not reduce all adult browsing to the level of suitability for a five year old.
Review of the Internet Watch Foundation by the DTI
A review of the IWF was announced by the Department of Trade and Industry following the organisations first annual report in March 1998. Work is still under way in preparing to appoint consultants to undertake the extended review of the IWF.(18) As noted earlier, the purpose of this second Cyber-Rights & Cyber-Liberties (UK) report is to offer assistance in the review of the IWF. A report to the UK government is expected this Autumn following the review of the organisation.
The review is expected to focus on four different areas:
- the progress made on the removal of illegal material from the Internet.
- the structure of IWF and a consideration of how successfully the IWF represents interested parties on its various boards.
- the next priorities for IWF - such as protection from obscene (and therefore illegal) adult pornography, racist material, breaches of copyright, and protection from legal but harmful material.
- the level of awareness among the Internet industry and users generally, of both the IWF and of rating and filtering tools for self-protection. It will examine how far this awareness is translated into use of them.(19)
Better Regulation is the only way forward
It is important to emphasise the importance of some of the fundamental principles to be observed and taken into account while decisions are taken by government and other self-regulatory bodies related to public matters. Although the IWF acts as a private self regulatory body, its actions directly involve public matters and the IWF is involved with the UK governments policy making process.
Therefore it is important to mention the Nolan Committee principles on good standards in public life, Better Regulation Task Forces Principles of Good Regulation and the respect for fundamental human rights such as freedom of speech and privacy. Such fundamental rights will in any event become legally binding by the incorporation of the European Convention on Human Rights with the enactment of the Human Rights Bill 1998.
The report will now examine these principles.
The Nolan Committee Principles
The Nolan Committee which dealt with Standards in Public Life(20) established "Seven Principles of Public Life".(21) These are: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. These principles apply to all aspects of public life and the Committee has set them out for the benefit of all who serve the public in any way. Accountability, effectiveness and openness of the regulatory players involved with the Internet governance is equally important as their respect for fundamental human rights of the UK citizens.
All government and quasi government agencies should be accountable to the public. Therefore, accountability should apply equally to the IWF, the Home Office, and the DTI. No decisions should be taken without proper public consultation and an open and transparent environment should be established for regulatory initiatives in the field of Internet regulation rather than important policies being developed behind closed doors in secrecy. The public has a right to know from the very early stages of a policy making process. So far, both the DTI and the IWF have failed their duties and managed to provide as little information as possible on why certain policies are preferred without the need for public consultation. Apart from being accountable and open, the government and quasi government agencies should be competent in the field of Internet regulation in both technical and socio-legal sense so as to provide the public with effective solutions.
Principles of Good Regulation
Better Regulation Task Force of the Cabinet Offices (OPS) Better Regulation Unit published the Principles of Good Regulation in January 1998.(22) The Better Regulation Task Force is an independent advisory group and was appointed by the Chancellor of the Duchy of Lancaster in September 1997 to advise Government on action which improves the effectiveness of government regulation by ensuring that it is necessary, fair and affordable, and simple to understand and administer.
The Better Regulation Task Force decided to use the Principles of Good Regulation as a "template - a critics guide if you like - for judging the quality of government regulations" in the course of their work years. They hoped others would find it useful, and Cyber-Rights & Cyber-Liberties (UK) indeed found it very useful in the context of an important issue - Internet Regulation.
The Task Force defines regulation " as any government measure or intervention which controls the behaviour of individuals or groups. Government regulation can both promote the rights and liberties of citizens, and restrict the behaviour of citizens" and according to the Task Force "whilst recognising such philosophic differences, governments should be satisfied that regulations are necessary, fair, effective, balanced, and enjoy a broad degree of public confidence."
Therefore the Principles of Good Regulation include the following criteria for regulators: transparency, accountability, targeting, consistency, and proportionality. The Task Force believes that many objectives can be achieved without recourse to state regulation through voluntary self-regulation and through the establishment of code of practices in general but the Task Force also subjects regulatory initiatives to a test. Cyber-Rights & Cyber-Liberties (UK) now will apply this test to Internet regulation by the UK government including the non-governmental Internet Watch Foundation which acts as a quasi-government body.
Test of Good Regulation for the UK Government
Must have broad public support:
According to the Task Force "the Poll Tax was a significant failure due to lack of public support, but the publics view can change over time." Cyber-Rights & Cyber-Liberties (UK) has seen no support for the activities of the IWF and the rating systems proposed for Internet content by this body from the public. Government support is not enough to justify the development of these systems without proper public consultation. There is not a general public awareness associated with these issues and the current process is therefore not transparent.
Must be enforceable:
According to the Task Force "whilst regulation might have general public support, it might not be enforceable." Cyber-Rights & Cyber-Liberties (UK) believes that this would be the case with the development of rating systems even if there was public support. The Internet is a global medium regardless of frontiers and there is wide objection to the development of these kind of systems elsewhere, especially in the USA where a great amount of Internet content is created.
Must be easy to understand:
According to the Task Force "everyone knows that they must pay a T.V. licence fee because the legislation is straightforward. However, other regulations can be complex." The development of rating and filtering systems involve complex technical issues and Cyber-Rights & Cyber-Liberties (UK) believes that these issues are not truly understood by the public at large and by the members of the Parliament. There need to be more initiatives to promote the good uses of the Internet rather than creating moral panics about the Internet content.
Must be balanced and avoid impetuous knee-jerk reaction:
According to the Task Force, "Ministers are often under pressure to regulate in response to a short-term public concern. Regulations introduced quickly because of an outcry about dangerous dogs were ill-thought out" and this is also true for the Internet content. A moral panic has been created for the availability of illegal and harmful content on the Internet and public and media pressure would result with inadequate and ineffective regulation.
Must avoid unintended consequences:
Burdensome and ineffective regulation and restrictions on Internet content deemed legal would, however, make Britain, a hostile environment for network development or any other high-tech industry and investment. The introduction of rating and filtering systems would also have an impact on individual rights such as freedom of speech protected by the European Convention on Human Rights. The ECHR will have a direct effect within the English Legal System with the enactment of the Human Rights Bill 1998.
Must balance risk, cost and practical benefit:
According to the Task Force, "it is not practical for regulators to seek to exclude all risk, particularly when the risk is minimal." The current technology for limiting access to some forms of Internet content is defective and limited and the use of these systems would only create a false sense of security for the concerned citizens.
Must reconcile contradictory policy objectives:
The Task Force believes that environmental protection should be taken into account against economic need when taking planning decisions or that food safety should be taken into account against food supply. Therefore, any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute content that is freely available to adults in other media.
Must have accountability:
According to the Task Force, "when things go wrong there must be clear but reasonable accountability without resorting to unfair retribution." Therefore, the IWF, a private body with important public functions should be made accountable to public with an accessible, fair and efficient appeals procedure.. It is wrong for the IWF to take important decisions such as the development of rating systems for Internet content without a general public consultation. The alternative is to give more thought into the "absorption of all current regulatory bodies into one Communications Regulation Commission with overall responsibility for statutory regulation of broadcasting, telecommunications and the communications infrastructure" as recommended by the House of Commons Select Committee on Culture in their report "The Multi-Media Revolution," published in May 1998.(23)
Must be relevant:
According to the Task Force, "conditions change over time, and some regulations become unnecessary" as in the case of Sunday trading restrictions. The current problems associated to Internet content is minimal and there is no need to create the likes of fortress UK on a global medium. The real amount of the current problems should be carefully assessed and examined before taking any regulatory decisions. Alternatives to current available solutions (such as filtering and rating systems) should be considered.
We believe above all the correct approach must be a matter of education - for both children and their parents. If children want to find sexually explicit content, such technologies will not stop them. Although there may be a governmental duty to protect children when real harm to children is an issue (such as the use of children in the creation of child pornography), it remains at least questionable whether such a duty extends to the issue of protection of children from the so called "harmful Internet content" and whether this duty should be switched to a quasi-regulatory body like the IWF. There are problems associated with the current preferred solutions for the problems identified by the policy makers. These are identified and explained in the two "Who Watches the Watchmen" reports. Our indication is that government inspired and enforced pre-censorship by the quasi-regulators is no more different then government censorship.
We do not object the truly private use of filtering software as a choice by individuals or even by ISPs so long as the users are aware of what they are getting "even though these remain as blunter instruments".(24) If an ISP is using such systems as default, than mechanisms should be available to unblock these systems as a choice to users.
Our conclusions are backed up by the opinion of the Economic and Social Committee of the European Commission on its report on the European Commissions "Action Plan on promoting safe use of the Internet". Finding the EU Action Plan over ambitious, the Committee considered it highly unlikely that the proposed measures will in the long term result in a safe Internet with the rating and classification of all information on the Internet being "impracticable".(25) The Committee, therefore, concluded that there is "little future in the active promotion of filtering systems based on rating."
According to the recent House of Commons Select Committee on Culture Report - The Multi-Media Revolution, international initiatives will have an important impact on national Internet regulation but at the same time "the question is whether such attempts at regulation can be anything more than optimistically indicative rather than genuinely effective."(26) This is true and as pointed out earlier in our report, a substantial study and research in this field is needed for assessing the real amount of the current problems before moving forward.
It should be noted that current solutions offered at various foras such as the development of rating and filtering systems may not be the real answers and solutions for the existence problems.
The UK government and all government agencies (including the IWF) should take into account the Better Regulation principles as explained in this report. Government inspired and enforced pre-censorship is no more different than government-imposed censorship. Such restrictions and complex regulations would make Britain, like any other jurisdiction that goes too far, a very hostile place for network development.
The great appeal of the Internet is its openness. Efforts to restrict the free flow of information on the Internet, like efforts to restrict what may be said on a telephone, would place unreasonable burdens on well established principles of privacy and free speech. Therefore, the government and its agencies should respect the fundamental rights of its citizens such as freedom of expression and privacy under the forthcoming Human Rights Bill 1998. The government should also support the "active and accelerated promotion of the Internet as a vital engine of social and economic development" (HC Select Committee Report)
Cyber-Rights & Cyber-Liberties (UK) will continue to monitor the development of Internet regulation within the UK and there will be further "Who Watches the Watchmen" reports when needed.
Cyber-Rights & Cyber-Liberties (UK) Report, "Who Watches the Watchmen: Part II - Accountability & Effective Self-Regulation in the Information Age," is written by Yaman Akdeniz. Professor Clive Walker and Dr Louise Ellison also contributed to this report.