Internet-based surveillance. Internet filtering and surveillance, this argument goes, is no more
a matter for international decision making than any other domestic policy concern. The nature
of the network and its potential uses are irrelevant to the analysis. The Internet is not
exceptional.
There are several possible critiques of Internet filtering. First, one might argue that technical
filtering is fatally flawed from the outset; because it cannot be carried out in a manner that
is not over- or under-broad, it cannot be done in a way that is sufficiently protective of civil
liberties. Second, as a related critique, Internet filtering implicates human rights concerns, particularly the freedom of expression, and extends to the freedom of association, of religion, and
of privacy in some instantiations. Finally, one might conclude that Internet filtering is unwise on
public policy grounds because it is anathema to the good things to which ICTs can give rise,
such as innovation, creativity, and stronger democracies.
The hardest cases are those that some would argue are acts of law enforcement while
others contend that they are clear violations of international norms. Consider a sovereign, jealous of the opposition’s power, that disables access to opposition Web sites in the lead-up
to an election—and then relents once the threat of losing control is abated—as some of our
findings from central Asia would suggest happens. Or a state that routinely uses censorship
and surveillance as a key element of a campaign to persecute a religious minority group. Or a
state that relies upon online surveillance for the purpose of jailing political dissidents whose
acts the state has committed to respect pursuant to international human rights norms. What
about when a state is trying to protect public morals by keeping citizens from looking at
garden-variety online pornography, but in so doing also block information on culturally sensitive matters, such as HIV/AIDS prevention or gay and lesbian outreach efforts? We set forth
three primary critiques here. These cases, each real, put the normative problem of Internet filtering into sharp relief.
The Argument in Favor of Internet Filtering: Legitimate State Control Online
The need for states to be able to exercise some measure of control online is broadly
accepted. Likewise, states ought to be able to provide rights of action—ordinarily, the right
to sue someone—to their citizens to enable them to seek redress for harms done in the online
environment. Though one might disagree, these core presumptions are not challenged in this
book. The easiest, perhaps most universal case is the common abhorrence of child pornography. Most societies share the view that imagery of children under a certain age in a sexually
compromising position is unlawful to produce, possess, or distribute. The issue in the context
of child pornography is less whether the state has the right to assert control over such material, but rather the most effective means of combating the problem it represents, and the problems to which it leads, without undercutting rights guaranteed to citizens. The prevention of
online fraud or other crimes, often targeting the elderly or disadvantaged, likewise represents
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Jonathan Zittrain and John Palfrey
a matter for international decision making than any other domestic policy concern. The nature
of the network and its potential uses are irrelevant to the analysis. The Internet is not
exceptional.
There are several possible critiques of Internet filtering. First, one might argue that technical
filtering is fatally flawed from the outset; because it cannot be carried out in a manner that
is not over- or under-broad, it cannot be done in a way that is sufficiently protective of civil
liberties. Second, as a related critique, Internet filtering implicates human rights concerns, particularly the freedom of expression, and extends to the freedom of association, of religion, and
of privacy in some instantiations. Finally, one might conclude that Internet filtering is unwise on
public policy grounds because it is anathema to the good things to which ICTs can give rise,
such as innovation, creativity, and stronger democracies.
The hardest cases are those that some would argue are acts of law enforcement while
others contend that they are clear violations of international norms. Consider a sovereign, jealous of the opposition’s power, that disables access to opposition Web sites in the lead-up
to an election—and then relents once the threat of losing control is abated—as some of our
findings from central Asia would suggest happens. Or a state that routinely uses censorship
and surveillance as a key element of a campaign to persecute a religious minority group. Or a
state that relies upon online surveillance for the purpose of jailing political dissidents whose
acts the state has committed to respect pursuant to international human rights norms. What
about when a state is trying to protect public morals by keeping citizens from looking at
garden-variety online pornography, but in so doing also block information on culturally sensitive matters, such as HIV/AIDS prevention or gay and lesbian outreach efforts? We set forth
three primary critiques here. These cases, each real, put the normative problem of Internet filtering into sharp relief.
The Argument in Favor of Internet Filtering: Legitimate State Control Online
The need for states to be able to exercise some measure of control online is broadly
accepted. Likewise, states ought to be able to provide rights of action—ordinarily, the right
to sue someone—to their citizens to enable them to seek redress for harms done in the online
environment. Though one might disagree, these core presumptions are not challenged in this
book. The easiest, perhaps most universal case is the common abhorrence of child pornography. Most societies share the view that imagery of children under a certain age in a sexually
compromising position is unlawful to produce, possess, or distribute. The issue in the context
of child pornography is less whether the state has the right to assert control over such material, but rather the most effective means of combating the problem it represents, and the problems to which it leads, without undercutting rights guaranteed to citizens. The prevention of
online fraud or other crimes, often targeting the elderly or disadvantaged, likewise represents
44
Jonathan Zittrain and John Palfrey