Site Blocking Another Widely Rejected Idea in Online Harms Proposal

Another theme we’ve seen throughout the consultation is the seemingly universally rejected idea of site blocking.

Earlier, we discussed one of the themes that came out of the submissions in the online harms “consultation”. That theme was on why 24 hour takedowns is a terrible idea. The idea raised a host of free speech issues and concerns about whether businesses can really keep up with such a demanding requirement in the first place. Some admit that they can’t while others point out that automation would be the only solution for survival – again raising concerns about free speech online.

while the 24 hour windows is an obvious point of concern, it is far from the only one. Another point of concern raised by many is the idea of site blocking. Site blocking, of course, has been a terrible idea for over a decade in general. For many long time observers, the fact that site blocking is a dead on arrival proposal feels like knowledge as old as time itself.

For years, site blocking was supposed to be the magic bullet that cures the ailment of the music and movie corporate industry. If they could only block every website that engages in what they call “piracy”, then things like file-sharing and streaming would finally go away. The problem is that, even when a court agrees to issue a blocking order, site admins quickly hop to another domain. So, when that became an issue, blocking of IP addresses became the solution. This was an abysmal failure thanks to mirrors and proxy networks. At one point, the idea of deep packet inspection was brought up to block protocols known to be part of file-sharing networks. Developers then introduced protocol obfuscation to thwart these efforts.

All of this proved that site blocking and content filtering is doomed to failure from the very start. That’s not even getting into the topic of the Tor network or VPNs which renders the idea of blocking content completely useless even further. Once you introduce services like these, even if you manage to get around the above problems, these services completely obliterate the prospects of site blocking.

It’s 2021. None of this is new knowledge. Yet, the Canadian government somehow got the idea that their site blocking idea will somehow be different. If anything, when these online harms plans were drawn up, if there was anyone in the room that actually had knowledge about how computers and the Internet works, this idea should have been laughed out of the room – long before the step of putting pen to paper.

The fact that this even has to be discussed paints a very vivid picture of several old people who have no idea what they are doing drafting laws – also a concept seemingly as old as time itself in the world of technology. In fact, it wouldn’t be surprising that the people drafting these laws really believe that if they believe in site blocking hard enough, they will somehow will a working system into existence. If that really is the case, then that is a truly facepalm worthy thing indeed.

The proposal specifically says that when a website not in the country is found to have “harmful” content on their site, then that site can be subject to site blocking. This is because the Canadian government wouldn’t be in a position to fine the operators should they not comply with their laundry list of requirements. So, if Canada can’t fine, they can, instead, block at the ISP level. As we discussed, site blocking is a completely unworkable idea that only serves to harm freedom of expression.

Naturally, when you introduce a completely idiotic idea, and ask for public feedback, it should be no surprise that it’s going to get shot down. The Public Interest Advocacy Center (PIAC) shot down this idea in their submission, “PIAC submits that it is likely not appropriate to create a regime in which ISPs are required by court order to block user access to non-compliant OCSPs because mandatory site-blocking: 1) is incompatible with Canada’s net neutrality framework rooted in ss. 36 and 27(2) of the Telecommunications Act as articulated by the CRTC; and 2) could result in excessive infringement of Canadians’ rights to freedom of expression on the Internet.”

The submission further adds, “Net neutrality is the concept that all data traffic on a network should be treated indiscriminately and that internet service providers (ISPs) should be restricted from blocking, slowing down or speeding up the delivery of online content at their discretion. There are many iterations of net neutrality around the world and determining the scope of net neutrality requires looking specifically at the ways ISPs are regulated within the relevant jurisdiction.”

The whole submission is worth reading from this angle. This is because it tailors its submission specifically to this subject.

Similarly, Ranking Digital Rights also expressed concerns with this aspect of the Online Harms proposal, “Proposed regulatory bodies have expansive powers and limited oversight. RDR is concerned with the sweeping authority vested in the new regulators of online content moderation (Module 1(C): Establishment of the new regulators; Module 1(D): Regulatory powers and enforcement). Particularly troubling are the provisions that empower regulators to define new categories of harmful content for future inclusion under the framework (Module 1(A) #9) and the rule that enables the government to order country-wide ISP blocking of non-compliant OCSPs (Module 1(D) #120). Such broad regulatory powers are inconsistent with the principles of necessity and proportionality that must underlie restrictions on fundamental human rights. While Canadians can take comfort in the strength of their democratic institutions, all countries are but one election away from democratic decline and a slide into authoritarianism. Our recent experience in the United States has been a sobering one, reinforcing the importance of balanced institutional powers, good governance, and oversight mechanisms.”

The submission also offers the following recommendation, “Ensure effective and independent oversight. Any government bodies empowered to flag content for removal by companies, or empowered to require the blockage of services, or to compel network shutdowns, must be subject to robust, independent oversight and accountability mechanisms to ensure that the power to compel companies to restrict online speech, suspend accounts, or shut down networks is not abused in a manner that violates human rights.”

Access Now also commented on the concept of site blocking in this proposal: “As a general matter, website blocking is a blunt measure that interferes with freedom of expression and has been condemned as a violation of human rights by the United Nations. Canada recently proposed a similar takedown system for “piracy” websites.37 In response, the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression warned the Canadian Government against implementing a website blocking regime, noting that blocking “raises serious inconsistencies with Canada’s obligations under Article 19 of the International Covenant on Civil and Political Rights and related human rights standards,” particularly the necessity and proportionality of the requirement.”

The submission also adds, “While the proposal requires a federal court to decide legality, website takedowns are limited to terrorist content and child sexual exploitation, which as described above have the broadest and most difficult definitions. An OCSP may have legitimate reasons not to remove certain content, especially that the content was not illegal and did not, in its view, violate any of the vague definitions, but may still result in full takedowns for refusing to take the content down. By combining the threat of website blocking with opaque and overly broad definitions, the Government is incentivizing OCSPs to censor any content related to terrorism or child sexual exploitation to avoid non-compliance. Even the “mere threat of blocking may have a significant and disproportionate chilling effect on its operation” as OCSPs would be inclined to take down lawful content rather than risk being shut down, as has occurred in other countries that have implemented website blocking.39 The Government should therefore remove these provisions.”

The Cybersecure Policy Exchange also touches on this in their submission: “Site-blocking powers have understandably been met with significant criticism by internet service providers and civil society organizations for censorship, impairing individual liberty, and potentially exacerbating harm against the marginalized populations that the law in part seeks to protect. This proposed power requiring judicial authorization is quite prescribed, though it is worth noting that Germany and the EU’s approach do not contain this power relying on monetary penalties; and Australia only has site-blocking powers for time-limited viral distribution of terrorist content in response to the Christchurch Call. The Government may also wish to review the UK’s proposed approach, which enables blocking of ‘ancillary’ services, such as payment processing, advertising services and search results for a site, as a means to pressure compliance before outright blocking.”

The submission adds, “It is not clear that this measure is necessary, effective and proportionate, given that major platforms increasingly appear to be in compliance with removal requirements for unlawful content. For example, in an evaluation of the European Commission’s Code of Conduct on countering illegal hate speech online, companies removed on average 70% of illegal hate speech notified to them, with companies meeting the set target of reviewing the majority of notifications within 24 hours, reaching an average of more than 81% (and figures for both have steadily increased with each evaluation). Recognizing that the existing provision allows for site blocking to be “in part”, many of the platforms proposed to be in scope host far more legal expression than illegal, so enabling site-blocking only of platforms where the majority or significant proportion of content is non-compliant could also be a way to narrow scope and mitigate Charter scrutiny.”

The submission also straight up makes this recommendation: “Remove or significantly narrow the ability to block access to platforms for non-compliance.”

The Canadian Civil Liberties Association also weighed in on this, saying, “The proposal seeks to establish a scheme to apply to a court for a website blocking order. Although the suggestion is that this would be used in exceptional circumstances for repeat offending conduct by OCSPs, it is worth emphasizing that website blocking is a truly extraordinary remedy when imposed by a state body. This tool will often be both inefficient and ineffective, resulting in a game of whack-a-mole as repeat offenders move to new online spaces to engage in the targeted conduct. There are also technical concerns about website blocking and how it will impact the online ecosystem as a whole.”

The Canadian Internet Policy and Public Interest Clinic (CIPPIC) also touched on this: “Canada has long been a champion of human rights, democratic values, and internet freedom. Canada co-founded the Media Freedom Coalition, which advocates for media freedom online and offline, and next year Canada will chair the Freedom Online Coalition. Canadians pride themselves on supporting internet freedom, protecting free expression, and serving as a leader in the protection of the freedom of association and assembly online worldwide.

“In this context, the government’s proposed legislation to regulate online harms seriously undermines claims that Canada is a leader in human rights. By raising the spectre of content filtering and website blocking, the current proposal threatens fundamental freedoms and the survival of a free and open internet in Canada and beyond. In an effort to combat hate speech and other ills, the proposed law threatens the free expression and privacy rights of the very equality-seeking communities that it seeks to protect.

“The online harms proposal combines some of the worst elements of other laws around the world. This is why CIPPIC believes that the Department of Canadian Heritage needs to overhaul its current approach to addressing the problems caused by unlawful online content. We are seriously concerned about numerous elements of the proposed law — such as the lack of adequate transparency requirements, the loosened requirements for the Canadian Security Intelligence Service (CSIS) to obtain basic subscriber information, the various jurisdictional issues raised by the law, and whether an administrative body like the Digital Recourse Council should be able to determine what speech is legal under Canadian law.”

So, quite the broad range here, but all have one thing in common: site blocking, as proposed, is a terrible and unworkable aspect of this online harms proposal. It raises serious concerns about freedom of expression and the health of the Internet ecosystem. The response ranges from either adding accountability and appeal mechanisms to outright scrapping the idea altogether. As is another theme throughout all of this, it’s unlikely that the Liberals will even see these viewpoints. After all, it’s widely expected that all of this will get ignored as they ram through their war on the Internet. We’ll, of course, see, but it’s unlikely that these voices of reason will get heard in all of this.

Drew Wilson on Twitter: @icecube85 and Facebook.

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