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German police have raided the home of the guy who owns the German domain name for Wikileaks, a well-known non-profit organization that anonymously publishes sensitive documents that governments and other institutions would like to keep under wraps.

What’s going on here? Well, it all starts in Australia, where the government has proposed legislation that would impose mandatory filtering of the Internet. They plan to do this by having a state agency maintain a blacklist of websites with content that some government bureaucrat thinks Australians shouldn’t be allowed to see. If the proposed legislation passes, Australian ISPs will be required to block all URLs in the list, and anyone who links to one of those URLs would face an $11,000-per-day fine. Child pornography is, of course, the main pretext here, as it so often is in Internet censorship cases.

Earlier this month, Wikileaks published Australia’s blacklist, revealing that numerous legitimate websites were wrongfully included on the list (which is no surprise, given that there’s virtually no accountability for the blacklist maintainers). Of course, the list also presumably includes some child porn sites; that’s what the program is supposed to be blocking, after all. Which brings us to Germany, where the current government has been pushing a scheme not unlike Australia’s — again, using child porn as a pretext for censoring Internet access. Since the blacklist published by Wikileaks presumably links to child porn sites, the German authorities figure that this makes Wikileaks guilty of helping to provide access to child porn — thus justifying the raids. Wikileaks, meanwhile, regards the raids as part of a broader political struggle over Internet censorship in Germany, and rightly so. Whatever you think of Wikileaks’ decision to publish the Australian blacklist, it’s hard to dispute that the raids are in part an attempt to intimidate opponents of the German government’s censorship plans.

Australia is far from the first country to try to censor its citizens’ Internet access under the guise of fighting child pornography. Nor is it the first to abuse its censorship powers to silence dissent and other legitimate speech: to take just one example, Finland got caught doing it last year. And the raids in Germany are only the latest attempt by the authorities in one country or another to clamp down on Wikileaks. Last year, for instance, in the course of a lawsuit over a different set of Wikileaks documents, an American judge ordered the site’s registrar to take its domain offline — a decision the New York Times described as “akin to shutting down a newspaper because of objections to one article.” (The same judge later reversed his own ruling, citing “the futility of attempts to censor information …  after it has been posted to the internet.”) The trend is clear. I think we can expect more and more of this sort of thing in the months and years ahead.

And lest you think we’re immune to this sort of thing here in Canada, please note that we already have a “voluntary” censorship program — voluntary, that is, for the big ISPs that have signed onto it, not for their customers. The program is called Project Cleanfeed, and its blacklist, too, is secret. It’s maintained by a fairly reputable non-governmental organization that is specifically dedicated to fighting child porn, and for that reason (and also because I was more naive back then), I was willing to give the project the benefit of the doubt when I first heard about it in 2006. But having seen the results of similar programs in Australia, Finland, and elsewhere, and the lengths to which the authorities in other countries will go to prevent the dissemination of information they find distasteful, I no longer believe we should give Project Cleanfeed or any other such program the benefit of the doubt.

Michael Geist reports that lawful access is back on the legislative agenda in Ottawa. And — surprise, surprise — both the Liberals and the Conservatives are backing it:

First, the Globe and Mail reports today that new Public Safety Minister Peter Van Loan has indicated that lawful access legislation is being prepared that will force ISPs to allow law enforcement to monitor Internet-based conversations.  The power to compel will apparently be subject to court order.  Second, Liberal MP Marlene Jennings has reintroduced her lawful access private member’s bill, called the Modernization of Investigative Techniques Act.  The Jennings bill is a virtual copy of a failed Liberal lawful access bill that died in 2005.

In that Globe and Mail article, Peter Van Loan justifies the proposal as follows:

“If somebody’s engaging in illegal activities on the Internet, whether it be exploitation of children, distributing illegal child pornography, conducting some kind of fraud, simple things like getting username and address should be fairly standard, simple practice. We need to provide police with tools to be able to get that information so that they can carry out these investigations.”

Mr. Van Loan said there have been situations where the police want to act quickly to stop a crime, but can’t because of the current laws.

“In some of these cases, time is of the essence,” he said. “If you find a situation where a child is being exploited live online at that time — and that situation has arisen before — police services have had good co-operation with a lot of Internet service providers, but there are some that aren’t so co-operative.”

Sure. Remember all those cases where the cops were watching some evil pedophile abuse a helpless child live on the Internet, but those dastardly ISPs were refusing to help them out because they don’t care about poor innocent children, or something?

Oh, wait. The one time that happened, the ISP gave the cops what they needed and they arrested the guy two hours later.

The Conservatives say that their bill would require cops and spies to get a court order of some kind. But there are different kinds of court orders, and it’s not yet clear what sort of evidentiary standards will be required. One of the many objections to the original lawful access proposals, way back in 2002, was that the cops and spies wanted a very low standard of evidence, which would substantially reduce our freedom from search and seizure (section 8 of the Charter of Rights and Freedoms).

What? You don’t remember the lawful access proposals of 2002? Okay, then. Here’s a brief history of lawful access in Canada:

• In the mid-1990s, cops and spies began lobbying Jean Chretien’s Liberal government for increased powers of surveillance. They said they just couldn’t keep up with all this new-fangled technology and needed “lawful access” legislation to make up for it. Critics objected that the police proposals would entail a drastic expansion of the state’s power to spy on its citizens.
• In 2002, the Liberals held a round of public consultations on lawful access. They encountered strong objections from the telcos, who hated the costs it would impose on them, and from civil society groups. The effort was postponed.
• In 2005, there was a second round of consultations. This time, the Liberals tried a divide-and-conquer strategy: they met separately with the telcos to deal with their concerns and held a laughably short two-week consultation with the general public. After all, if you can get big business on your side, who cares what civil society thinks?
• Following those consultations, the Liberals introduced the Modernization of Investigative Techniques Act, which contained less-controversial provisions like requiring telcos to make it technologically possible for cops and spies to intercept communications on their networks, and forcing them to give basic subscriber information to cops and spies without a warrant (as opposed to, say, requiring them to keep copies of actual communications for a period of time). Fortunately, the bill died when Paul Martin’s government fell.
• In 2007, Liberal MP Marlene Jennings reintroduced the Modernization of Investigative Techniques Act as a private member’s bill. As usual with such bills, it went nowhere.
• Later that year, the Conservatives launched a new consultation on lawful access — deliberately excluding the public from the process altogether. During the resulting controversy, Stockwell Day attempted to mollify public opposition by saying, “We have not and we will not be proposing legislation to grant police the power to get information from internet companies without a warrant.” Meanwhile, the National Post complains that words get in the way of saving children.
• Now, in 2009, we’ve got a Conservative government giving the same old song and dance routine about pedophiles and ticking time bombs and technologically inept cops — and Marlene Jennings reintroducing her reintroduction of a failed Liberal bill from the Paul Martin era.

In short, successive Canadian governments have been trying to pass lawful access legislation for seven years. They’ve failed, partly because electoral politics got in the way, but also because civil society groups have strongly and consistently objected to unnecessary expansions of state surveillance powers. Fundamentally, though, the Liberals and Conservatives are in agreement on this issue — which means it’s only a matter of time before the cops and spies get their way, and we lose a little more of our freedom.

(Originally posted, with minor changes, to The Information Policy Blog.)

Finland’s initiative to block access to child porn sites is also blocking over 1,000 legitimate websites — including one belonging to a vocal critic of Finnish censorship.

The initiative is the result of a law passed in 2006 to filter foreign sites containing child porn. Finland’s national police force maintains a secret list of sites that contain, or link to, content that they consider to be child porn. When they find a site, they add its IP address to their list — thus blocking, not only the offending site, but also any other sites on the same web server. (For more details, check out this excellent overview of the censorship process.)

“But that’s Finland,” you’re thinking. “Who cares about Finland?”

Alas, much the same thing happens in Canada. Project Cleanfeed manages a list of sites that it classifies as child porn. The list is kept secret from the general public, but the major Canadian ISPs — Shaw, Telus, Rogers, Bell, MTS Allstream, SaskTel, and Videotron — all use it to filter your Internet access.

There are all sorts of problems with the project. The group that manages Project Cleanfeed has a good reputation, but as Cory Doctorow has pointed out, secret lists are ripe for abuse. (Remember, the Finnish police are using a very similar process to block a vocal critic of their censorship practices.) There is an appeal process, but it’s overseen by the same organization that blocked the site in the first place, and you can’t appeal if you don’t know that your site is on the secret list.

The ISPs’ participation also sets a bad precedent, since it means that they are acting as monitors of site content, rather than as neutral common carriers. And if they’re already blocking some types of content, what’s to stop them from blocking other types of content? In fact, as I understand it, by violating their own neutrality, they may be legally liable for their failure to block other types of illegal or objectionable content. For those of us who support net neutrality, this is obviously of some concern.

(I wrote about Project Cleanfeed in more detail back in 2006, when the project first got underway.)

Courtesy of the National Post.