Free information on the web and its limits

Internet seems to have (and to some extent has) been born to give voice to anyone browsing through its pages. Very few would venture to question that the right to free expression is an integral part of the unwritten agreement that lies at the origins of the Web’s success. Yet on closer inspection, this freedom appears to be increasingly limited.

Example 1: TOR, Wikileaks and the myth of information without censorship

What happened to Assange? Well, as everybody knows, he is confined within Ecuador’s Embassy in London and his future remains uncertain.[1] But even more uncertain is the future of ‘his’ Wikileaks, the website that, thanks to web protocols such as TOR[2], has revealed millions of confidential files while preserving the anonymity of sources and promises to continue doing so. This protection has been instrumental in convincing many ‘whistle-blowers’ to make their secrets available through Wikileaks.

Over time the system has proved to have more than one flaw: in fact, not even Assange’s website can exclude the possibility of sources risking the loss of their anonymity, albeit with great difficulty.[3] Moreover, even assuming that the source remains anonymous, keep in mind that, as suggested by Bruce Schneier in 2007 in an interesting article published in Wired, anonymity does not mean privacy: just like in a meeting of Alcoholics Anonymous, the identity of the participants is unknown but the content of the conversations, which are completely public, leaves little room for privacy.[4]

It is easy to imagine how these conditions dissuade many potential  collaborators of WikiLeaks from disseminating ‘sensitive’ information, especially since the U.S. Justice Department began a criminal investigation into WikiLeaks and Assange in 2010, following the publication of the now famous diplomatic cables.[5]  This represents a serious threat for the possibility that the website and its many offshoots can fulfil the mission of providing the public with “an innovative, secure and anonymous way to transfer information from the sources to our journalists”. [6]

Example 2: Right of expression and risks of censorship in the web

Should laws limit the possibility to freely express an opinion? It’s hard to find someone willing to answer “yes”. Even in the most totalitarian countries many people are fighting, risking their own safety and facing prison to ensure this right. The Declaration of Human Rights and the founding documents of the most liberal countries are very explicit in protecting free expression. [7]

At least on this point we seem to be on safe ground. Yet in addition to being practised in many countries around the world, restrictions on freedom of expression and speech tend to multiply on the Web.

It is also true the indiscriminate exercise of these freedoms can spread scare stories[8], fuel hatred[9] and even cause damage to people unable to defend themselves[10]: behaviour that, in my opinion, of course needs to be censored. To get an idea of how the need to prevent such practices is rooted in US culture, the birthplace of the Internet, just scroll down the list of Supreme Court rulings that set down limits on the ability to say anything on a website.[11]

It is certainly reasonable to prevent children’s access to online materials that may harm them (COPA[12], CIPA[13]) and protect their privacy (COPPA[14]). At the same time it is clear that these restrictions limit the rights guaranteed by the 1st Amendment to the U.S. Constitution. It is probable that in these cases of potential conflict between two rights, the legislature has, with good reason, decided to protect the weaker party.

The idea of pursuing the protection of decency (CDA[15]) is perhaps the most elusive matter but it probably reflects the ethical aspirations of a major part of American society. Moreover, some prohibitionist suggestion must have crossed the Atlantic and also reached our shores, since the European Union recently considered a measure to eliminate pornography from all media, including the Web. [16] Apparently, the citizens of the Old World did not like the prohibitionist idea which threatened the risqué side of the web[17] and, in the end, European legislators dropped the matter. [18]

Moreover, even Italy limits in some cases freedom of expression through the Internet. A total of 5,544 sites were censored in the country, 60 of which were addressed with individual measures from judicial or administrative bodies, 1,188 by the National Centre for the Fight against Online Child Pornography and 4,296 by the Customs Agency and Monopoly. [19]

Scrolling through the list of domains subjected to measures from judicial authorities, several sites of fake brands emerge, as well as sellers of generic drugs, erotic ads, phishing systems to collect usernames and passwords, and so on. In brief: potential online predators of various kinds. But there are also torrent search engines[20], link-collecting portals (for the debate on copyright see the next section) and even a seemingly innocuous question about the age of consent. In short, a closer look at the matter makes you realise how difficult it is to draw a distinction between the right to freedom of expression and the need (which only in very specific cases can be defined as urgent) to protect the weak and defenceless by the dissemination of information potentially capable of causing serious harm. Perhaps the point is to determine who is at risk. Talking about individuals who are unable to defend themselves (children for example) we all agree on the need to protect them, but if they are adults in full possession of their faculties or even organisations that defend special interests, then things are different. Just think of the hideous form of ‘censorship 2.0’ practised by the Chinese authorities who, instead of removing the content from the network, rewrite the text altering their meaning[21] to understand how freedom of expression on the net is extremely fragile and its restrictions must be limited to cases of actual risk for users under a strict and public control.

Example 3: Copyrights

The protection of copyright and intellectual property on the net, which is regulated with appropriate provisions by both the Supreme Court of the United States[22] and by the European Union[23], takes us into the heart of the conflict of interest that the Internet has created, with unprecedented levels of evidence.

The subject is of considerable complexity, and this is certainly not the place to deal with its technical aspects. It is however interesting to note that, since the advent of the Internet, lawmakers have sought to protect the rights of those who design and deploy intellectual property more than the rights of those who benefit from it. Once again, the potential “everything free for all” has led producers of articles, books, music, videos, software, etc. to exert their influence on legislators to prevent the collapse of their markets.

As you can imagine, public opinion did not welcome the limitations of copyright on the web. In this regard it is interesting to mention the situation in Italy. In December 2010, AGCOM[24] approved the resolution 668/2010/CONS, which aimed to establish guidelines on the protection of copyright. According to the drafters of the resolution “The discipline of copyright should […] on the one hand, protect the freedom of expression and the equitable remuneration of the author and on the other, guarantee the right to privacy and access to culture and the Internet“.[25]  Conversely, their critics immediately dubbed them the “censors of the Internet or the Italian law-gag.” [26]

This controversy is the result of the collision between two equally legitimate and (at least in our culture, which has evolved towards the infinite reproducibility of information) important rights. On one hand, the authors want to protect the abovementioned rights. On the other, web users claim the right to freely use materials available on the web, insisting that free access to this content is one of the premises of the Internet. As rightly pointed out by the speakers during the AGCOM meeting in December 2011[27], there is an evident need for a balance between these fundamental rights. Meanwhile, the war continues and each party wins (or claims to win) a few battles. The FIMI (Italian Music Industry Federation) reported that in 2011 in Italy music piracy decreased on the previous year; [28] at the same time, Italy seems to be at the top of the European ranking of so-called piracy. [29]

A comparison with the U.S. market suggests that in 2011 the spread of music in the United States occurred through legal channels in only 35% of cases, and 20% of the songs passed through peer-to-peer and cyberlocker systems, while more than 46% occurred through the exchange of files between people via CD or hard disk to hard disk. [30] It is therefore evident that most piracy does not occur via the Internet and is therefore much more difficult to trace and fight.

Internet still remains the chosen battleground for the war between the ‘everything free for all’ party and that supporting the copyright. The conflict is likely to last for a long time and a balance of the rights between the two parties is far from being reached. But, whatever the outcome of this confrontation, the ability to publish without restrictions on the network appears to be more and more a utopia.