WIRED:Internet operators should not be threatened with jail sentences for doing nothing but building open communication tools, writes DANNY O'BRIEN
I LOVE computer programmes that give you an insight into the underpinnings of the internet. One is Traceroute, which you can try for yourself at http://nwtools.com. Traceroute is like a line of crumbs, showing the path your messages take over the internet. Even a visit to the closest website passes through three or more computers as your data picks its way across your broadband modem, your internet service provider’s (ISP’s) routers, the peering points and undersea cables of the wider net, then to the destination’s own ISP and, finally, to the server that hands out the webpage.
I defy any judge who has seen the map of Traceroute and truly considered its implications to come to the same conclusion as Oscar Magi, the Milan judge who found three Google executives guilty of violating the privacy of a child recorded on a video that was uploaded to the Italian Google Video website in 2007.
The case was brought by public prosecutor Alfredo Robledo after the company was reported to the authorities by Vivi Down, a local advocacy group for people with Down syndrome. The three executives – global privacy counsel Peter Fleischer, chief legal officer David Drummond and retired chief financial officer George Reyes – were all given six-month suspended prison sentences in abstentia.
None of the executives was involved directly in overseeing the Italian video site.
The implication of Magi's decision is that internet intermediaries such as Google are responsible for all the data they carry. But between the creators of the data and its viewers on the edges of the internet, the internet is nothing butintermediaries. Almost all of it is privately owned, and every data packet that it conveys is passed from one third-party machine to another in a constant chain of co-operative consent.
One of the preconditions for the internet was the regulatory environment that clarified that those responsible for their speech were the speakers themselves, not the rest of the internet. In the US, this principle was made clear 14 years ago in section 230 of the Communications Decency Act and expanded upon in the Digital Millennium Copyright Act. It was set in EU law a decade ago by the e-commerce directive.
We might not even have needed such laws: in areas where such regulation has not cleared the air, local prosecutors, courts and lawmakers have seemed to understand that going after middlemen like Google or RTÉ or Eircom or O2 or Facebook is not going to fix anything.
The moment a real decision is made along these lines, you know that either the laws will be changed or court decisions overturned. Wiser heads realise that, if they do not do this, their country is preparing to gut its internet infrastructure at the cost of local business, as internet users simply turn to foreign websites to host their material.
Most Italian spectators believe the Vivi Down decision will be overturned on appeal. If not, the Italian government or EU authorities may need to look at Italian law to ensure it is in compliance with the European e-commerce and data protection directives.
But it is not just Italy that is trying to walk this route. In the US, with less incitement than Italy’s vicious bullying video, media moguls such as Rupert Murdoch are rumbling about stripping companies like Google of their liability safe harbours, claiming that internet companies need to police their users for copyright infringement and be punished when their policing fails.
In the UK, where libel cases have reached out to publishers, printers and magazine sellers in the past, internet-hosting companies and web forums are understandably nervous.
Even in Ireland last year, the Irish Recorded Music Association threatened Eircom and others with lawsuits unless they blocked and filtered “infringing” internet content.
I sometimes gloomily think that perhaps a country should attempt to go ahead with these plans. Try it, I think, and see what happens to your internet. Try to prosecute every hop on those Traceroutes. Put up a government forum, wait until the first insult is posted, then sue yourself. Block the rest of the world when it fails to live up to the liabilities you have imposed on your local, Balkanised networks.
Occasionally you see one nation taking a few small steps that way: Thailand, for instance, recently began prosecuting local ISPs for hosting content that contravened the Thai law that prohibits insulting the king. In those cases, if they go much further, the end result will be like Italy: innocent internet operators threatened with jail sentences for doing nothing but trying to build useful and open communication tools in their own country.
In Thailand, though, there will be no headlines, no Google countersuit. The executives in trials in places such as Thailand will not be as protected as the Google three.
And while the Italian judgment stands, prosecutors there and elsewhere will be able to say, “this is what they do to internet intermediaries in Europe”, and no one will be able to deny their words.
