Cyberlaw Prediction 8: A legal challenge to David Cameron’s porn filtering system

I have been harping on about the lunacy of David Cameron’s porn filtering plan as it is not a suitable filtering system to “protect children” and has resulted in the filtering system having taken large parts of the legitimate Internet content ofline to millions of people. Caught up in the aftermath are the children that Cameron claims to be protecting. We now have a raft of websites that are unavailable and offline, including sexual health sites, rape and abuse support sites, child support sites, and even the UN Convention on the rights of the child have all been considered “unsuitable” for children. A tweet to O2 about their classification process confirmed what we all know to be true: they use the British Board of Flim Classification’s framework for guidance on how to classify and Symantec does the site classification for the mobile provider. All of a sudden, a phone network is using a private corporation to decide what categories of speech are acceptable to you and what isn’t. For us cyber lawyers, this frightens the heck out of us because of the active limitations that a corporation can put on free speech. This often sets precedent for other corporations to do the same. And the courts will tend to bend over backwards to ensure proportionality and rationality occurs on any restrictions of free speech. We have already seen limited legal action with regards to how and why blocking “extremism” websites is illegitimate. The Home Office and the Crown Prosecution Service are making determinations that particular pages are "unlawfully terrorist related" - they then distribute a list of "unlawful" URLs to filtering software manufacturers to incorporate in their products. The objective is to block sites on public networks like the type you find in public libraries and universities. Currently, information that someone doesn’t like is being removed from the web by using the same methodology used by the Internet Watch Foundation (IWF) – the organisation tasked with blocking access to child sexual abuse images. ISPs block your access to the page to avoid even accidentally clicking through. The problem with this method is that the IWF often blocks legitimate sites and images. (See my previous article that mentions the Scorpions album Virgin Killer nearly taking down Wikipedia) The problem for the cyber-libertarians out there is not that there is not tough preventative measures to accessing websites with illegal content, but that there is currently not any notice or appeal for the blocking; there is no legislative authority, and there are no oversight and transparency among who is doing the actual filtering and blocking. Without an effective appeal mechanism, legitimate images are being blocked and sites run the risk of being black listed as a result. As Daniel Foster, the technical director for 34ISP.com, states: “I don’t think filtering can work effectively. We’ve seen examples (not least on Newsnight) of legitimate sites being blocked by the filters at large ISPs - online advice sites and even sexual health Scotland ended up on the block list. Whilst few people would make a case that children should be viewing pornography, outright censorship is going too far in the other direction. False positives will cause damage to those sites that end up inadvertently blocked, and one could see a commercial site being blocked getting litigious if it affected their revenue.“On a technical level, there are always ways around the filters put in place and restricting access to material, whatever that material may be, often makes it seem more exciting than would otherwise be the case. Some will see it as a game to “beat the filters” and gain access to forbidden fruits.”