This might be useful in getting Australia to reform its content classification system, which has some weird dichotomies in evaluating on-line vs. off-line material, and in dealing with different media for the same content. This particular quirk, though, seems like it’s vulnerable to gamesmanship: if I were an Australian gaming company, I’d surely submit complaints about my competitors’ games (especially foreign ones) – censorship could help my sales by eliminating alternatives.

Fun stuff. Hat tip to Boing Boing.

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…

I made a few points that I’ll share here. First, I think that Internet filtering has had three epochs:

1. Filtering 1.0: filtering is technically impossible (Gilmore and the cyber-exceptionalists / cyber-libertarians)
2. Filtering 2.0: filtering is possible, but only done by bad actors / authoritarian states (China, Iran, Saudi Arabia, etc.)
3. Filtering 3.0: filtering becomes widespread, including in Western democracies, and we face hard questions about how to assess the practice’s legitimacy

Second, Australia is the beta for Filtering 3.0. The country is having useful, vehement disagreements over how filtering is implemented (what method is used? who pays? what trade-off in performance is acceptable?) and what gets blocked (who decides? why is certain content prohibited? how can one challenge censorship decisions?). The Rudd government, via Senator Conroy, seems to be backing down on two fronts – specifying that only Refused Classification (RC) material will be blocked in a mandatory fashion, and that a “voluntary” industry code to which all ISPs adhere could substitute for legislation – but a requirement to filter is still a government objective.

Finally, there’s a persistent myth that the U.S. is a filtering-free zone. I think this derives because what we block seems natural / inevitable / invisible. Google has to remove certain search results that link to infringing content to stay within the safe harbor of the Digital Millennium Copyright Act. This is like the dog that didn’t bark in Sherlock Holmes: how do you know what you’re missing? (To Google’s credit, the site includes notification that it has filtered results, and links to Chilling Effects so you can read the DMCA take-down notice.) Linking to a site that you know posts DeCSS is unlawful. Napster had to institute filtering to satisfy the district court in California (which it failed to do). Americans think that prohibiting copyright infringement just makes sense – but Saudi Arabia thinks this about porn, and France for hate speech, and Australia for euthanasia. We aren’t different, and that’s what makes Filtering 3.0 hard.

I’ve got an initial proposal for how to approach Filtering 3.0 (my paper Cybersieves, coming out this year in the Duke Law Journal) that looks at process rather than the content that’s banned. Filtering is coming: to Australia, to Germany, to Minnesota. Gilmore’s optimism no longer applies. We need to think about what comes next.

[Update 1:00PM: The panel is in room 310.]

Update 11:45PM 3 June: Danwei has more details, including a link to a spreadsheet that’s purportedly tracking blocked sites.