Every week TechCentral.ie runs a poll to gauge the attitudes of early adopters and technology professionals in Ireland. Our current topic is the issue of child pornography online and the extent to which it should drive data retention policy. At time of writing the split was about two thirds in favour that protection of the vulnerable should be the primary concern, while one third felt any intervention would be used as a gateway issue towards widespread regulation. Both sides are essentially correct.
This is in part why An Garda Siochana and Government (the previous one, anyway) have been at odds with advocate group Digital Rights Ireland, the Office of the Data Commissioner and the EU’s Data Protection Supervisor over what strategy to introduce Web filtering for the benefit of investigations into child pornography. Last month it emerged that the Gardai had sought to bypass the judiciary and representative bodies to strike deals with Internet service providers to block access to certain websites.
Despite discussions at the Department of Justice throughout last year, a coherent, legally sound, policy on website blocking has yet to be formulated. In the absence of judicial backing, An Garda Soichana has adopted something of a public/private approach, contacting Internet Service Providers directly with a proposal to implement a blocking strategy and a way to identify child porn producers, distributors and consumers.
The idea of state and private interests limiting consumer choice online isn’t exactly novel. Ask anyone living in Egypt, Libya or China about services like Facebook, Google and Twitter and you’ll be told all about censorship, the control of public discourse.
Stifle at source
At home we have our own limitations, specifically the arrival of ‘three strikes’ agreements targeting illegal file sharing, where two private bodies – eircom and IRMA – agreed to cut off serial file sharers.
Considered impossible to enforce thanks to the wide availability of IP blocking software (essentially a shield against IP detection), the model has had modest success, but has yet produced no high profile appeal to the courts, or resulted in wholesale service disruption. A collaborative initiative of a public body with private concerns, however, is a new development.
In a letter seen by Digital Rights Ireland (www.digitalrights.ie) sent to individual ISPs (and not their representative bodies, ALTO and ISPAI) An Garda Siochana proposed that ISPs begin work to tackle online child through the use of site blocking and IP and browsing history harvesting. The theory went that Internet filtering would shrink the market, make it less profitable to produce and act as an aid to international effort to track down producers, distributors and consumers of such material.
According to the letter, many criminal cases involving child pornography have their origins in work carried out by foreign police forces, who supply the IP addresses of suspects to the Gardai. By way of developing a more proactive strategy Gardai are seeking to use ‘Stop’ pages, users landing on such pages would have their IP address logged and their browsing history scanned so additional, similar sites could be identified. As of this writing no ISP has complied with the request, if only for the simple reason that they cannot be compelled to do so. What’s more, passing such measure through law will require approval at government, judicial and EU level. Of the three, getting ministerial approval is the easy part. The retention of browser histories, however, is a breach of the Communications (Retention of Data Act) and the Telecommunications Act 1983. The EU’s data protection supervisor has also come down against the strategy, citing the lack of judicial oversight as particularly worrying. The EU’s current policy favours the cutting off of child pornography production at production, not market, level.
Australian experience
A further critique of any potential blocking strategy comes in the form of the Australian experience. According to a document submitted to Wikileaks in 2009, a total of 13,70 websites and subdomains (i.e. particular content within a website) made a government blacklist, including clips on YouTube, MySpace, Satanic sites, Christian sites, a tour operator and a dentist. Imagine the potential embarrassment suffered by a local business if users were to type in their domain only to be met with a warning that not only was the site of dubious character, they had also just disclosed their personal information to a law enforcement agency.
The tracking and dismantling of the child pornography industry is important, but using an incendiary issue to introduce Web filtering technology could be disastrous for regular users. For An Garda Siochana to go without judicial authorisation is also likely to result in legal challenges to any prosecutions it may bring.
It can be a short hop, skip and jump between the criminal, the immoral and the seditious. If Ireland is to be seen as a society willing to balance its responsibilities to victims and private individuals, the response needs to be reasoned and proportionate. That requires dialogue, not dichotomy.
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