For delivery at the Implementation Meeting of the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights
Warsaw, Poland, October 8, 2006
It has been my great honor over this past year to chair the International Network Against Cyber Hate, known as INACH, and I am pleased to be here with you today to participate in this part of the Implementation Meeting of the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights. Thank you for allowing me to speak with you today.
As an American, and as an American lawyer, I often find myself commenting the dichotomy between the laws of the U.S. and everywhere else in terms of regulating hate speech. The First Amendment to the United States Constitution strictly limits the ability to censor or criminalize speech, no matter how hurtful or repugnant. Such is not the case in most other nations, where hate speech is subject to legal control.
It may surprise you to hear that I am not going to focus on that dichotomy today. Today, I want to talk about how controlling the flexibility of Internet providers in delivering Internet content a situation that exists in Canada and elsewhere around the world actually may limit the ability of people fighting hate speech to effect voluntary action on the part of ISPs. As many of you know, the voluntary cooperation of ISPs in taking down or blocking hate-filled sites is an important tool all around the world, including in the United States. Voluntary editing by an ISP does not implicate the First Amendment protection of speech, and so appealing to a provider can be very effective.
A recent episode in Canada shows that the red tape of Internet regulation that limits the discretion of an ISP may well put a person's life at risk.
The story begins with the conviction of a London, Ontario man who was sentenced by a Canadian court judge to nine months in prison for hate crimes. The defendant was brought to justice through the dogged efforts of a Canadian civil rights lawyer known to many of us, Richard Warman. Outraged that one of their fellow haters was put in jail, the operators of several web sites directly targeted Warman for his role in the case, making very specific death threats against him.
Warman justifiably was concerned that the web-based invitation to other hatemongers including those who may be one of his neighbors in Ottawa could result in violence to him or his family. So he turned to Google in the U.S. and to the Canadian Radio-television and Telecommunications Commission (CRTC) (Canada's FCC) and asked that the death threat web sites be blocked. Google, which was hosting one of the sites through its Blogger service, immediately complied, saying "We want Blogger to enable free expression, including the hosting of views that are unpopular. However, advocating violence against a person is not acceptable."
In Canada, the red tape of regulation has resulted in inaction. The death threats remain online in Canada. The CRTC, constrained by the broad and ill-defined legal prohibition against blocking Internet content, denied Warman's plea. It ruled in perfect bureaucratese that "it would be inappropriate to consider granting the interim relief sought in the application on an ex parte basis
[A] public process would allow for consideration of the broader policy and legal issues regarding the scope and appropriate use of the commission's powers." In other words, Canada's law paralyzed the regulators and prevented them from doing what Google recognized was obviously the right, and urgent, thing to do. The CRTC dithered, suggesting that public hearings sometime in the future, was required by the law even if taking down the death threats immediately might protect Mr. Warman and his family.
As I understand it, in Germany, the situation is slightly different ISPs have a conditional right to block sites, but that is subject to judicial review and, in fact, efforts to invoke the right resulted in complicated and lengthy litigation. In Germany, there is a rule about the responsibility of ISPs. If there is no other way to take action against web sites that violate German hate speech laws, (such as when a web site is hosted abroad and the host-provider won't shut down the web site), the telecommunications authority can allow German ISPs to block access to the offending web sites. This rule has been in force since 2001. Since then, I am informed that there was only one case, in 2002, where ISPs were allowed to block access to the web site of neo-Nazi Gary Lauck and to stormfront.org, but that was only after substantial litigation.
This issue of whether providers of access to the Internet should be restricted in any was from blocking access to hate sites is coming up in an unusual context in the United States, in a debate over something called "net neutrality".
Telecommunications providers in the United States are planning for the next generation of Internet connectivity for consumers through, for example, so-called fiber-to-the-home. New connections will allow substantially more data at substantially faster speeds to reach consumers. Providers are proposing tiers of service including, for example, dedicated channels for medical information and child or elder monitoring video, as well as channels for HDTV on demand.
There proposals have precipitated a public policy debate over whether the providers should be allowed to have tiered services because of a perception that control over how content travels over the Internet and ends up at the consumer's house may mean that providers will degrade service or block content with respect to sites on the Internet that are not on their specialized tiers. The major providers have promised that will not be the case; that the Internet will be faster and better than ever before for all content; and that there are laws in place to regulate such potential anti-competitive conduct. They argue that such regulation is unnecessary; it threatens to stifle innovation; and that regulation may well slow down the next generation Internet, making access more expensive for consumers.
A disclaimer is in order at this point: I have helped lead a coalition, with former Press Secretary to President Clinton Mike McCurry, advocating on behalf of the providers against such net neutrality regulation. Our group is called Hands Off the Internet, and we favor limited regulation of broadband providers.
I would never have imagined that my work on that public policy question would intersect with my decade-long work against online hate. But it has. And that is because if a law passes in the United States that broadly prohibits the ability of broadband providers to control content in any fashion, whether through tiered services or by blocking hate sites, ISPs may be paralyzed when asked to help take down hate sites. That is unlike now where ISP cooperation is one of the few tools in the U.S. to block hate-filled sites from appearing on users screens.
Should Congress pass a law that, like Canada's, broadly prevents an ISP from "blocking content", the next time Google is asked to take down a death threat against someone, it may well hesitate and suggest that the requester go to the FCC for a ruling. And the FCC may follow Canada's lead and deny emergency relief in favor of a notice and comment period followed by a public hearing. In the meantime, some crazy person may accept an online invitation and go out and kill.
Hard and fast rules, which take away the ability to use common sense can be counter-productive. Just as Google needs the ability to use judgment to keep a viable, and responsible, online service working, broadband providers need the same ability to use their judgment when it comes to managing network traffic flows and other services they may offer. If everyone is frozen because of fear they could violate a government regulation, that could stifle innovation and investment, and even prevent common sense moral decisions for which one can't conceivably write government rules covering all contingencies.
No matter how carefully drafted, legislation that prohibits "content discrimination" cannot account for every situation where blocking content may well be the right thing to do. Especially since existing laws deal with a scenario where content might be blocked for improper commercial purposes, enacting a law that by necessity will be overbroad makes no sense. In fact, it may be lethal, if a Warman-like situation escalates to the point of actual physical harm.
The lesson for this group, and for all interested in fighting hate speech, is that we all need to be aware of legislation and rules potentially affecting the Internet beyond rules directly governing hate speech because the unintended consequences may hinder our efforts at obtaining voluntary cooperation from ISPs.
Thank you for allowing me to speak to you today.