The end of the Internet as an open playground: Moral duty or censorship?

Until recently, the Internet has been an open playground: You could do whatever you liked, and if you did something wrong you got in trouble after the fact. But now politicians and others are pushing to make intermediaries, like ISPs and auction sites, filter content before it gets to users. The Internet of the future might be an Internet with limits on what you can do.

As always, I’m guest-blogging and I don’t represent the views of ReputationDefender.

Most recently, three major ISPs–Verizon, Sprint, and Time Warner Cable–recently bowed to pressure from the Attorney General of the state of New York and agreed to stop carrying Usenet newsgroups that contain child pornography and other reprehensible content.

First, a brief history lesson: “Usenet” is a throwback to the early days of the Internet. It is a set of discussion areas–”newsgroups–that were very popular in the 1990s as a way to discuss everything from programming to politics. In more recent years, the popularity of Usenet has fallen the Web (what you’re using right now) became more important. But, some people still communicate through Usenet. And a small fraction of those people use it to send child pornography and other illegal material to each other.

Verizon, Sprint, and Time Warner Cable stopped “hosting” some Usenet newsgroups on their own servers. As a result, the ISPs are no longer providing access directly to subscribers. It’s still possible for subscribers of those ISPs to access the newsgroups, such as by paying $10 to $20 per month for access through a web-based Usenet gateway (a service that shows Usenet through a web browser). A good analogy to what these ISPs did would be if your ISP no longer provided email service and you had to pay another company for web-based email.

This is one of the first times that a major ISP has limited its services on the basis of content. While any customer can still access any newsgroup they want, the ISP has made it substantially more difficult to access newsgroups that contain illegal content. Some think this is the first step toward ISPs enforcing content controls based on other forms of illegal content, like music or video file sharing and possibly even going as far as restricting the transmission of libelous or false information online.

Current laws, combined with the nature of the Internet, put a lot of pressure on ISPs to filter content. Because the Internet is global, harmful and illegal content can easily be found overseas. U.S. politicians can’t control what overseas websites do, since U.S. courts lack jurisdiction over many foreign websites, and even if there were jurisdiction it would be a nightmare to try to try to enforce the laws overseas. But, U.S. politicians know that every web user has to use an ISP to get online. And they know that ISPs that serve the U.S. are subject to U.S. law and can easily be dragged into U.S. courts. Even more importantly in this case, it’s a lot easier to go after a handful of ISPs than it is to try to track down and locate many anonymous Usenet users who posted the original illegal images. Thanks to anonymity services like TOR, it may be completely impossible to locate the people who first put the underage images on Usenet. But, the government can find the major ISPs just by looking in the phone book. It’s a lot easier to go after the known intermediary than it is to chase down foreign or anonymous wrongdoers.

The same is why the RIAA hopes to filter music file sharing before it reaches customers. If ISPs block file sharing, then the RIAA won’t have to chase anonymous or overseas file sharers.

The U.S. isn’t the only country where intermediaries–like ISPs–are being held liable for wrongdoing by other users. A recent court case in France held eBay liable for fake handbags sold by independent sellers on eBay. Again, the reasoning went that it’s easier to force eBay to solve the problem than it is to chase down many small-time sellers of fake handbags.

Is this the first step toward extensive filtering, going as far as ISPs stopping the transmission of sites that contain libelous or hurtful materials? It’s technically possible for this to happen. Spam blacklists already exist. And lots of programs — like McAffee’s “SiteAdvisor” — already detect some forms of malware and provide warnings to users before proceeding. Google already warns users about pages that might be dangerous, based on their own internal blacklist. And some ISPs already block certain emails under the guise of being viruses or spam.

Adding another filter for sites that have been ranked as hurtful or libelous by enough users would just be another simple step, nothing more than a Digg-like button “bury as inaccurate” for the world. It’s entirely possible that ISPs could display a message that “this site has been marked as inaccurate by 40% of visitors.” We’re really not that far away from having this capability: sites like StumbleUpon use a Firefox extension to rate literally millions of websites.

Of course, what about the First Amendment? After all, the government can’t just censor all speech that it doesn’t like. But, the Supreme Court has repeatedly held that child pornography is not protected under the First Amendment. The Supreme Court has also held that libel–malicious lies about a private individual–is also given not protected under the First Amendment. So, under current law, it’s at least theoretically possible for a state government (like New York in the case of child pornography on Usenet) to threaten ISPs to stop providing access to some kinds of objectionable content. Of course, if government-mandated web filtering ever became common then we’d likely see another challenge in the Supreme Court, possibly with a different outcome.

In the end, it’s not clear whether this is a good thing or a bad thing. There’s plenty of things, like child pornography, that is so disgusting that something needs to be done to stop its spread. And, this most recent move by the New York ISPs suggests that illegal images are still prevalent, despite many attempts by law enforcement to find and prosecute the people who take them. And ISP warning for libelous or hurtful content might save thousands of reputations from unfair But, ISP filtering is also dangerous if it’s applied overzealously to things like file-sharing: there are plenty of forms of file-sharing that are legal (for example, many downloads of the Linux operating system use file-sharing networks to speed up downloads and to allow many users to download updated versions at the same time). Filtering could also be abused for political purposes, but it’s unlikely that the Supreme Court would allow it.

What do you think? Is this the end of the open playground? A step toward moral responsibility for ISPs? Or plain old censorship?

* As always, I’m guest-blogging by invitation, I don’t necessarily represent the views of ReputationDefender or any of its headcount, and I hope to start a discussion rather than providing definite answers.