Germany Joins Iran and China

Nope, not a post about the World Cup – these are three countries that have been in the news for government-mandated Internet censorship. It’s a bit weird to see that grouping, but as I’ve argued elsewhere, filtering is becoming ubiquitous – no longer limited to “bad states” like Burma.

In Germany, the major parties in Parliament are in agreement on a plan to require ISPs to filter a list of sites – limited to child pornography, says the government – provided by the federal police. Opposition has been strong, but for naught, as the government passed legislation today. Ralf Bendrath, an activist and academic whom I met at CFP 2009, is following the situation on his blog. Initially, the government pressed for “voluntary” blocking by ISPs, but the Greens and others pushed for a public, not private, law solution. Rebecca MacKinnon points out that some German politicians already want to expand the scope of blocking – for example, to cover extremist or gambling sites.

Coverage of Internet censorship tends, unsurprisingly, to be libertarian in tone: filtering is implicitly treated as undesirable or illegitimate. Nicole Wong of Google had an insightful point at CFP that captures this argument beautifully: filtering is problematic when adopted by democratic states, she said, because it offers cover to authoritarian ones who use the same practice to more troubling ends.

But, for a change of pace, let me offer three reasons why Germany’s move looks legitimate, and then one criticism.

  1. The new filtering legislation has support from the Christian Democratic Party and the Social Democratic Party – in other words, from both conservative and liberal politicians. Thus, filtering has a fairly broad base of political support (unlike, say, in Australia).
  2. Germany opted for formal public law after debate, rather than bullying ISPs into quasi-voluntary filtering (as in the UK). Governments make bad law all the time, which is why we vote them out. Legislation is more transparent and more amenable to policy change than private deals.
  3. The government recognizes – this was a driver in the shift from private to public law – that the legislation treats questions of fundamental rights, such as expression and access to information. That’s preferable to simply lumping opponents in with child pornographers (as Minister Conroy has done in Australia).

The problem is scope creep: the first step in putting filtering in place is the hardest, both politically and technically. Germany, like most Western states that have contemplated Internet censorship, has focused on the easy case: child pornography. The child pornography lobby is, shall we say, small and underfunded. But once the filtering apparatus is in place – “the machine,” Wendy Carlisle calls it – it can be set to block other things about which there’s less consensus – gambling, euthanasia, copyright infringement. And since the lists of sites to be blocked are secret, it’s very difficult to detect how far the system slips down that slope.

Much depends on the details of Germany’s new law, and on its implementation. We’ll see how much the country’s system looks like the others in the news

2 Responses to “Germany Joins Iran and China”

  1. Derek, thanks for reporting about this. A few remarks from a German, though, may be allowed:

    Point 1)
    “The new filtering legislation has support from the Christian Democratic Party and the Social Democratic Party – in other words, from both conservative and liberal politicians.” – The Social Democrats in Germany are not “liberal” in the political-philosophic sense, which would mean less state intervention and freedom for any communication. They are more a “state to the rescue” party of the old traditional working class, which, like anywhere else, is shrinking – and so are the votes for the social democrats. They may have been pressed into this endavour by the conservatives, but most of them still believe that censorship is a solution.

    Point 2)
    The German approach is certainly better than some intransparent shady private censorship entity such as the Internet Watch Foundation in the UK. But the real legal approach would have been to have a judge decide about any entry in the filter list. Now, the federal police agency BKA is running a secret black list without real oversight (a board of experts is supposed to check a small sample of the list every three months – a real joke), which of course creates fear of political censorship and other issues.

    Point 3)
    “That’s preferable to simply lumping opponents in with child pornographers” – This is exactly what they also tried in Germany, with support from the yellow press. It just did not work quite as well, because the internet community made the strong point that a serious solution should focus on taking such sites offline instead of establishing a dangerous censorship infrastructure.

    “Much depends on the details of Germany’s new law, and on its implementation.” The problem may be that the mission creep will come not from amendments of the law, but through the courts. The state court of the land of Hamburg recently rules out obligations for ISPs to filter copyrighted material, because the setting up of a system for that it would be an undue burden. Once the infrastructure is in place, the courts may force ISPs to also add other sites such as thepiratebay.org to the list.

  2. Thanks, Rolf – this is extremely helpful. I should have pointed out up front that I am quite inexpert in the German political scene. Let me follow up with two quick thoughts. First, having judges determine the black list has its own problems – it confers extraordinary power on a single judge. In Turkey, for example, one judge has been able to force the country’s ISPs to filter YouTube – and has been unwilling to accept, as a solution, just blocking offensive sites to all users in Turkey. I agree that having the police make this decision raises considerable problems of process, but unfortunately judges aren’t a great solution either.

    And second, when censorship becomes technically and economically feasible, demands for its expansion inevitably occur. The slippery slope problem – of which I’m generally suspicious – is real in this context.

    Thanks, and I’m looking forward to getting more of your thoughts on this!