specific law or court order, is a step in the right direction. An example in this regard is the way
that Iran has created a Committee in Charge of Determining Unauthorized Sites, which is legally empowered to identify sites containing prohibited content. To meet the ICCPR standard,
the law under which the filtering is carried out should be clear and nonarbitrary.
Ironically, a state can use procedures to impose content restrictions, and these procedures
(again, if sufficiently clear and nonarbitrary) can help that state comport with ICCPR obligations to specify policies in precise law. A state may impose licensing requirements—for example, the way Uzbekistan requires cybercafes to comply with a ‘‘standardization procedure’’
carried out by a government agency before starting operation. A state also may enact registration requirements—for example, the way South Korea requires bloggers and Web content
developers, or even cybercafes and end users, to associate their online activities with their
real-world identities. In addition, a state may assign liability to Internet service providers
(ISPs) for content that is delivered to users—for example, the way Iran holds ISPs criminally
liable for content. Self-monitoring requirements are another form of procedures that a state
can use to restrict activity—for example, the way China drills the message that ‘‘the Internet
is a public space’’ to warn people to check their own behavior. In each of these procedural
moves, if specific laws are set out, states may in fact be complying with one of the ICCPR’s
conditions for limitations—even as they erect filtering mechanisms.
Complying with the requirement that restrictions be provided in law does not guarantee that
the processes as a whole are compatible with the ICCPR; rather, in imposing the restrictions,
states still must comply with the requirement that restrictions be necessary.
Measures Necessary
With respect to the requirement that limitations on the freedom of expression be ‘‘necessary,’’
states also can use procedures to target filtering for specific objectives, so that the scope of
the filtering is not too broad. Procedures that allow public oversight and accountability act in
this vein. For example, Pakistan has established a Deregulation Facilitation Unit to redress
grievances in the event of errors or overblocking.
Seeking to comply with the ICCPR requirement that limitations on freedom of expression be
justified as necessary, states naturally emphasize the substance of filtering measures, or what
they are targeting. States sometimes assert that measures are undertaken for the purpose of
respecting the rights or reputations of others (one of the permitted grounds for limitation). For
example, China partially justifies its use of rights management tools by saying this filtering
helps to enforce intellectual property rights. Similarly, Malaysia’s Internet regulatory authority
explicitly targets abusive or harassing content.
So, too, states justify limitations as being necessary for the purpose of protecting national
security, public order, public health, or public morals. For example, United Arab Emirates cites
these goals in justifying its legislation on hacking, the accessing of illegal sites, and the use of
digital signatures.
Filtering and the International System
83
that Iran has created a Committee in Charge of Determining Unauthorized Sites, which is legally empowered to identify sites containing prohibited content. To meet the ICCPR standard,
the law under which the filtering is carried out should be clear and nonarbitrary.
Ironically, a state can use procedures to impose content restrictions, and these procedures
(again, if sufficiently clear and nonarbitrary) can help that state comport with ICCPR obligations to specify policies in precise law. A state may impose licensing requirements—for example, the way Uzbekistan requires cybercafes to comply with a ‘‘standardization procedure’’
carried out by a government agency before starting operation. A state also may enact registration requirements—for example, the way South Korea requires bloggers and Web content
developers, or even cybercafes and end users, to associate their online activities with their
real-world identities. In addition, a state may assign liability to Internet service providers
(ISPs) for content that is delivered to users—for example, the way Iran holds ISPs criminally
liable for content. Self-monitoring requirements are another form of procedures that a state
can use to restrict activity—for example, the way China drills the message that ‘‘the Internet
is a public space’’ to warn people to check their own behavior. In each of these procedural
moves, if specific laws are set out, states may in fact be complying with one of the ICCPR’s
conditions for limitations—even as they erect filtering mechanisms.
Complying with the requirement that restrictions be provided in law does not guarantee that
the processes as a whole are compatible with the ICCPR; rather, in imposing the restrictions,
states still must comply with the requirement that restrictions be necessary.
Measures Necessary
With respect to the requirement that limitations on the freedom of expression be ‘‘necessary,’’
states also can use procedures to target filtering for specific objectives, so that the scope of
the filtering is not too broad. Procedures that allow public oversight and accountability act in
this vein. For example, Pakistan has established a Deregulation Facilitation Unit to redress
grievances in the event of errors or overblocking.
Seeking to comply with the ICCPR requirement that limitations on freedom of expression be
justified as necessary, states naturally emphasize the substance of filtering measures, or what
they are targeting. States sometimes assert that measures are undertaken for the purpose of
respecting the rights or reputations of others (one of the permitted grounds for limitation). For
example, China partially justifies its use of rights management tools by saying this filtering
helps to enforce intellectual property rights. Similarly, Malaysia’s Internet regulatory authority
explicitly targets abusive or harassing content.
So, too, states justify limitations as being necessary for the purpose of protecting national
security, public order, public health, or public morals. For example, United Arab Emirates cites
these goals in justifying its legislation on hacking, the accessing of illegal sites, and the use of
digital signatures.
Filtering and the International System
83