IWF v Wikipedia and the Rest of the World (except OUT-LAW)

Ever late to the party, still-bronchitic Pangloss would just like to make a few points about the Great Wikipedia Cleanfeed Debacle, if only for her own aide memoire, as she's still re-writing her porn chapter, and so she can say I told you so before it moves completely off the national radar.

In brief: IWF, allegedly little known (though much written about by Pangloss) non elected, industry based censorship quango, were told about dubiously legal naked picture of pre pubescent child on ancient record sleeve; IWF, after usual behind closed doors consideration, added image to "Cleanfeed" (as it's wrongly known) blocklist of child sexual abuse images distributed to almost every UK ISP; image found on page on Wikipedia, a high traffic site, m'lud, so more cumbersome than usual to block; (some) UK ISPs implemented IWF block requirement by funnelling their entire subscriber traffic to Wikipedia through two proxy servers, making only 2 IP addresses visible ; Wikipedia's systems interpreted this as a vandalism attack and closed down write access from UK servers; meanwhile most UK ISPs except , notably, Demon, configured their servers to return 404 error (site not found) when UK surfers searched for this page, rather than the more honest 403 (site prohibited); Demon however truthfully announced that the site had been bl0cked by the IWF as they believed it to be child porn.

Internet predictably plunged into maelstrom of geek horror at censorship of t'net; image reposted on every virtual frat dorm door; IWF reconsiders ban; and for confused reasons not apparently wholly to do with the law ("in light of the length of time the image has existed and its wide availability"), rescinds ban. Everyone happy, sort of, except OUT-Law, who stick to original guns and back IWF original ban.

Pangloss has no yearning for freedom of access to child porn and no dislike for the IWF, who are individually and collectively a most worthy and unselfish set of individuals, but she has long felt worried about the existence of Cleanfeed ever since the government effectively forced every ISP of any size in the UK to install it as proactive upstream filtering, back in late 2007, by threatening that otherwise legislation would be introduced to impose this.

Why is the IWF blocklist worrying? Not because banning access to child porn is in itself wrong - indeed since possession is a crime, preventing possession of child sexual images is arguably doing those seeking it a favour , as well as prtecting the public - but because the mechanism of censorship here employed is non transparent, covert, undemocratic, non judicial and non accountable. I argued this in a SCRIPT-ed editorial at the original time of government backed imposition of Cleanfeed, and have been glad to see this quoted in a few places lately.

I am also glad this particular incident has arisen, because it exemplifies rather beautifully some of the reasons why, although stopping child porn is a Very Good`Thing, this is not, yet, quite the right way to do it. (I am not concerned here with the isue of incompatibility between Wikipedia's defences and the IWF tactics.)

Non-transparent: it is the essence of accountable censorship in a democracy that we know that something has been censored and why, even if we are, correctly and according to law, not allowed to see it. In this incident, only Demon provided that information (and apparently against their own best legal advice!) Why did no other ISP supply this information?

One problem suggested is that if an ISP says "You cannot see this because it is child porn" and it turns out not to be in law, then an action for libel might fall against the ISP. However this can be easily avoided by wording such as Demon indeed used ("we aren't showing you it because the IWF said it might be unlawful"). As`an even more belt and braces excuse, even draconian English libel law clearly allows for public interest privilege, ie, that sometimes there is a duty to say what you believe to be true for the benefit of the public, even though there may be legal dubiety as to its truth. That would surely apply to a warning that a user could not access an image because it was believed to be child pornography.

As a first step, the IWF must (as ORG has also suggested) issue guidelines to UK ISPs that there must be 403 transparency in cases like this in the future, not 404 obfuscation.

Non-judicial: the IWF has often said, when criticised in the past, that it does not need to be a court, nor composed of lawyers and/or judges to do its job, while its scope is restricted to simple images of child sexual abuse. With child porn, they say, "an elephant is an elephant". Yet the case in point clearly stood at the edge of legal certainty. And this case did not even concern less well defined legal areas the IWF purports to review, such as hate speech (added to its remit relatively recently, and unlilaterally.)

Non-accountable: the IWF`applied their own appeals procedure to the decision, after media pressure, and reversed it. Effectively they changed their mind. This is not how true courts and tribunals work, where an appeal must be heard by a seperate body with an account of what factors lead to a different legal decision. The IWF may have truely reconsidered their opinion as to the law (although their own press release rather speaks against this), but they may equally well have simply bent to public pressure, or practical enforcement problems. For those who truly want an objective system which responsibly cracks down on child porn, this is surely unacceptable. Justice is a system, not an arbitrary private discretion.

Combining the two factors above, we come to a simple conclusion that the IWF to meet basic principles of due process and retain respect and public confidence must consist of judges, or at least be chaired by, a judge.

It is simply historical accident that this is not the case already. The IWF was set up in haste in the early days of the Internet, not as a government agency or tribunal, but as a protective self-regulatory watchdog body, whose aim was to to protect the ISP industry from being prosecuted as distributors of child porn.

In the years since, the IWF has done a great deal to up its"pro bono" profile, eg added members from children's charities, released statistics and minutes, trained its members (though exactly how is not clear); but it remains fundamentally a self appointed quango of non judicial, and non elected membership. This is simply not the right way to deal with as important a decision as the one it makes, which simultaneously label sites as criminal suppliers of child porn, users as criminal possessors, and restricts public freedom of expression.

Having the IWF chaired by a judge would also enable it to resist popular or media - or governmental - pressure to remove - or add - an item to the blocklist. Here we come to the most worrying part of this whole affair; the fact that IWF censorship is covert. Court based, conventional justice is public; proceeding are public, reports are available. With the IWF, however, not only are the decisions taken behind closed doors, arguably understandable in the light of the sensitivity of the matter under concrn, but so is the implementation.

The IWF blocklist is encrypted; arguably so that when it is sent to ISPs, the number of people who can actually read it is minimised. Again, many would agree with this as an aim - a comprehensive list of illegal child porn sites and images (effectively a user's guide to finding child porn) would certainly be worth a great deal to some people, and would not be in the public interest to releease.

But the consequent opacity of the blacklist and the lack of any public vetting of it or access to it, means that in theory almost anything could be added to the list without almost anyone in the country knowing. (And this could be done by the ISP, as well as by the government pressurising the IWF.)

As I wrote in 2007, it is widely rumoured that the IWF has already come under some governmental pressure to add sites containing pro-terrorist images, notably videos of hostage executions. These images may be unpleasant but they are not AFAIK illegal to view. Have we done right to construct a system which provides for secret nationwide blocking of any kind of unwanted online content?

Again I would suggest the presence of a judge as chair of the IWF should restrain these fears, and restore national confidence. As OUT-LAW noted we DO certainly already have censorship in the UK and yes, it is sometimes a good thing; but I want the kind of censorship we already have : acountable, publicised, judicial censorship. Struan says "The government trusts it[the IWF] to do this job." Well, I don't. I trust judges, as any good law student should. Censors should be independent, not just of the state, but of other interest groups, such as the industry itself, and yes, the child protection sector. There is no good reason other than cost (which is not a good reason) why the Internet alone of media should be subject to non judicial yet government imposed censorship.

Finally, what this incident has also revealed is the strangeness of a system where illegal material is successfully and swiftly removed in the UK primarily by means of notice and takedown (the IWF boast, quite rightly, that in their few years of existence they have managed to almost wholly remove child porn from UK servers) but where we apparently make no effort to procure take down abroad, before blocking, even from well known and responsible sites like Wikipedia. (And yes, Wikipedia refused to take down this time - but that does not mean they always would, or that all other sites would act in the same way.)

As Richard Clayton has pointed out in the past, international co-operation now means that foreign phishing sites can usually be taken down in hours , not days; why can we not achieve this for foreign servers hosting child porn? There may be legal dificulties outstanding here I am not aware of, but it seems obvious that more take down means less need for blocking, means less oportunity for covert censorship - unless that is the aim..?

I hope these concerns will be taken forward, perhaps as one of the research projects sponsored by the Safer Internet Programme mentioned below?