Cyber Law - Content Regulation and Censorship in the Government - Article Example

Cyber Law Introduction Internet in the 21st century has grown in both - scope as well as extent, which has catapulted its popularity and benefits to an all new level. The benefits offered by the internet are manifold and do not conform to the boundaries of any one particular nation-state. It is an era which wherein a significant proportion of key ideas of the modern regulatory state are devoid of a common currency. Hence various sectors in the industry firmly believe that internet censorship or regulation of internet by the government has lost its feasibility in the current globalized marketplace (Ohmae, 19951). The internet has facilitated the development and creation of transnational civil societies and capitalism whereby the traditional forms of law are rendered ineffective and have become obsolete with the ever increasing use and expansion of internet. The internet has facilitated the development and creation of transnational civil societies and capitalism whereby the traditional forms of law are rendered ineffective and have become obsolete with the ever increasing use and expansion of internet. As a result, the laws and regulations which were applicable prior to the advent of internet and development of e-business are now rendered ineffectual and unfounded. The contemporary world has become much more dynamic due to the platform offered by the internet and has facilitated communication and interaction within and beyond boundaries at a pace and scale so rapid and massive, that it has become almost impossible for the government to control or restrict it without harming the rights of one or the other groups or interfering in other nations’ regulations (Tambini et al., 20082). It may not be an exaggeration to claim that the advent of information technology has led to a significant restructuring in the global market place brought about by the manner in which it was defined and operated, the nature of business and the laws and regulations were applied. Today, the definition of market place has become global, where the “place” cannot be easily identified or located, and the activities cannot be restricted or regulated by laws of any one particular nation-state. The virtual market places have almost disrupted the conventional forms of business rendering various laws ineffective and impossible to implement. Content regulation and censorship and the Government The fact that internet has unlimited benefits ranging from upgrading communications and business practices to the political benefits of encouraging citizen involvement with the leaders. However, the power that internet holds is often abused by the users, in a variety of ways, usually by targeting the vulnerable and unwary, leading to national as well as international concerns. The threats to internet use, ranges from simple civil cases to more complicated criminal offences which may endanger the security of nations (Hedley, 20063). The civil threats may include cases such as violation of privacy of contents or the intellectual property rights while the criminal offences may include hacking of government systems, unauthorized access to secured sites, theft, fraud, online stalking, or promotion of hatred through posting derogatory or racist or anti-national speeches via blogs (Wall, 19994). Such issues result in a gross violation of laws and regulations of a nation-state, national as well as international, and hence needs to be regulated to protect the interests of the people, organizations or nations at stake. Serious attempts have been made since decades to develop a model for internet regulation, with barely credible success. Governments mostly try to establish and maintain law and order by prohibiting certain activities which tend to harm the larger public interest. It includes policies to protect the individuals as well as their property and ban activities that deliberately seek to cause disharmony among the citizens or offend their moral values. Although the exact definition of the terms used varies largely for instance what constitutes ‘harmful’ or ‘offensive’ to the moral values of people, cannot be defined with precision and is largely left to the governments of different countries who define the term in accordance with their own perspectives and interpretation and implement laws accordingly. Because of this, the laws of different countries vary greatly in several respects. The United States for instance, gives immense freedom of thought, and expression and encourages free flow of information without any sort of interference. However, at the same time issues such as defamation of an individual or a group, or portrayal of thoughts which tend to offend certain group may call for government intervention thus, leading to contradictory situations, rendering such laws vague and ineffective (Appleman, 20035). The U.S. Congress proposed a Global Internet Freedom Act as a measure against the state-sponsored censorship of internet by refusing to accept such censorship of internet by the government and condemning such a move and deliberated over the implementation and development of technological means which would help them in circumventing such restrictions. However various researchers and policy makers refuted such a move by pointing out several flaws in the ct such as: its relative inability to deal with international interferences, refusal of other nations to participate or comply with such a law; strong opposition from commercial organization for their vested interest might be at stake among others (Figliola, 20106). In various countries laws have attempted to protect its citizens from content which is perceived to be harmful or hostile their environment. Such contents include - pornographic or sexually explicit materials on websites or blogs or other similar internet media; racist slurs or derogatory remarks against a particular group etc. The presence of such content freely available on the internet has forced the governments of various nations to take stringent measures against those responsible for such an act and enforces appropriate laws which ensure the protection of individuals of their nations from hostile environments, which may lead to large scale public harm or dissent. The government in such cases, have taken steps to filter content on public internet terminals for instance at public libraries where such content is likely to be available freely. As discussed above, governments across the globe have tried to censor or regulate the virtual space for various reasons and by various means. However, most of these efforts, on internet regulation have been centered on addressing issues related to the explicit sexual content which is harmful for individuals. There has been a proliferation of sexually explicit websites and blogs leading to an expansion and boost in the online pornography market. This has raised serious concerns for various groups. In the UK, for instance, the government mostly relies on voluntary blacklisting of ISPs whereby government contracts are offered to those who have subscribed to that blacklist. The blocked websites are done privately and neither the public nor the owners of those websites are informed about the supposed blocking of their websites. This is done by the UK Internet Watch Foundation. It acts as a moral police for a whopping 95 per cent of the UKs internet users, although it is a non-governmental organization (Sheldon, Howitt, 20077). Facebook - one of the most popular social networking sites, has also faced the moral policing in terms of banning of certain images of breast-feeding which were regarded as sexually explicit content. The website withdrew the images and banned members from posting such images on the grounds that it violates their terms of agreement which requires members to abstain from uploading and posting obscene, pornographic or sexually explicit content on their site. Despite several vehement protests by the users, the ban was not withdrawn (ABC News, 20088). In Australia the government has relied heavily on voluntary filtering at the ISP level itself, to block and prevent users from uploading and posting content which is sexually explicit in nature, and / or contents which amount to child pornography. In accordance with such a rule, hundreds of Australian websites are banned at the ISP level, making such sites inaccessible to the Australian users (EFA, 20089). Such bans have also been rampant and common in Asian countries where the morality issue is a highly sensitive and volatile, often leading to mass protests and mob violence, in many cases. In countries like India, Pakistan as well as other Asian countries; internet is perceived as a direct threat to their culture and traditions, and hence to uphold their values and morals, various websites containing sexually explicit contents have been banned amidst widespread protests. Similarly in Brazil the Cybercrimes Bill was proposed by the then Senator Eduardo Azeredo to combat the influx of various websites containing objectionable contents and promoting online paedophilia. The law was largely criticized and labelled as draconian owing to its vague and broad nature (Kshetri, 201010). However, despite several attempts on the part of the government to ban or block the virtual space, there have been wide spread protests, preventing them to implement such laws. For instance, Article 19 of the Universal Declaration of Human Rights affords every individual a fundamental right to freedom of expression. It is also a part of the basic constitutional rights of individuals and has been adopted and applied by various democratic nations across the globe (UN Org, 201011). Furthermore, the Freedom of Information Right entails that all individuals have a basic right to access information. Information, especially in the modern era, is a key aspect of all democracies, whereby the citizens are empowered to freely participate in sharing, discussing and exchanging information to communicate in society. This also includes exchange of information which involves opinions and perspectives from across various nations, cultures and opinions. However, despite the presence of such freedom, governments in most nations are often seen prohibiting access to certain information which is viewed as contradictory to their own set beliefs, ideas and morals, and in the process declining their citizens from their basic constitutional rights (Direct Gov, 201012). Article 12 of the Universal Declaration of Human Rights: states that all individuals have the right to privacy without interference from any outside agency or organization; including the government. The nature of internet, makes it all the more difficult to ensure the right to privacy of individuals but may help them in avoiding government restrictions on this ground. Protection of privacy also includes protection of an individuals sexual rights, however, ridicule over the internet or internet abuse and personal bashing of users, make government interference a necessity thus further complicating the matter. In the cyber world, the lines between exercise of ones right and government intervention are blurred hence making government control of this medium a tad difficult as compared to other forms of media (UN Org, 2010). This makes it all the more difficult, if not impossible, for the governments to regulate the internet and succeed in censoring the cyber space. Apart from the moral grounds, there are certain other stakeholders such as the traders or the business class which are also immensely interested in protecting their rights online. For instance, the holders of intellectual property rights or copyrights, have a lot at stake and loss of such content by way of internet piracy, which is rampant in the online world, spells huge financial losses for the rightful owners. Thus the protection of such commercial interests is also a major criterion which has encouraged and widened the debates about internet censorship. Contemporary Economy and the implication of regulatory policies The contemporary digital economy is not averse to regulation. In fact, regulation has been an integral part of this new model economy driven by hi-tech technology and innovations. However, the basic debate about the applicability and / or feasibility of such laws is centered on various grounds including protection individual rights granted to them by the Universal Declaration of Human Rights Act as well as the transnational laws. The question regarding whether such laws can be developed and implemented effectively, depends highly on the capacity of respective governments in establishing appropriate laws in the first place. The internet unlike any other medium invented so far, is structured in such a way that renders it difficult for the law enforcers to bring it within their jurisdiction and punish those guilty of crimes. This is because, the content posted online, can be easily shifted to / moved from one place to another, and the interpretation of such content depends on the individuals in whose region / territory such content is posted. The internet affords anonymity to individuals making it difficult for the government to track them down and bring them to book. All in all, there have been several attempts to govern and control the internet by various agencies – private or government owned, in a bid to establish internet governance. This regulatory body was mainly controlled and supported by Internet interest groups; ISPs as well as their related associations and to a certain extent even by national as well as international governments. The very foundation of these types of governing bodies lies in their technical expertise and efficiency to transcend beyond boundaries and across various cultures which conform to the viability of such governance. In accordance with the motives laid down in order to effectively implement the internet governance model, the ISOC established an Internet Societal Task Force (ISTF) to deliberate on various aspects and issues related to the internet such as policies affecting the users on a global platform from diverse perspectives. Facts and observations such as these indicate that “The origins, development and co-operative ethos of cyberspace are therefore directly related to the real and controlled world of government policy-making and public expenditure.” It was also noted, that in addition to such organizations there was also an urgent need for the government to develop policies as a measure to control certain important technologies such as cryptography – a technology which can be used across borders and which can threaten the security of other nations leading to serious consequences. But for these organizations and agencies to succeed, it is of utmost significance for the other member states to co-operate and participate in controlling the internet. It cannot be denied that the development and implementation of such policies by nation states at various levels have a significant impact on the manner in which internet is used and accessed worldwide and hence ultimately on the development and growth of the internet itself. But developing a single policy which is applicable universally is a massive task in itself since different nations are at different stages of internet usage, and network development and the apparent differences between the technological advancement in developing and the developed world. Thus, it can be safely presumed that the universal application of a common internet law or the implementation of internet laws within the nation, is rendered ineffective due to the very design of internet technology. Any one government or nation-state cannot seek to enforce laws, unless the other member nations, are willing to comply and cooperate. According to Barlow (199613): “...the Internet is too widespread to be easily dominated by any single government. By creating a seamless global-economic zone, borderless and unregulatable, the Internet calls into question the very idea of a nation-state” The internet, on the basis of above discussion, can hence be perceived as a complex trans-national environment where conventional norms of regulation which are highly dependent on the tangibility aspect, as opposed to the non-tangible virtual space. It is so starkly different both in terms of time and space, from the physical world that makes it impossible for common laws of a nation to be enforced or easily applicable to it. Also, the attempt by various nations to monopolize the cyber laws in a bid to enforce world-wide internet regulation cannot be successful due to various differences – mostly political, religious and cultural differences. In order to be successful, global regulation of the internet requires active participation and coordination of other nation states or the delegation of authority / responsibility to any one particular nation to enforce and implement cyber laws at a global level which are universally acceptable to all. If this is achieved then, the laws of the internet can affect the development of internet, lead to the creation of self-regulatory solutions as well as introduction of content which could otherwise have been banned or expressly prohibited on conventional grounds, thus in the process upholding the universal rights of individuals in the process. According to Reidenberg (199614) “Rules and rule-making do exist. However, the identities of the rule makers and the instruments used to establish rules will not conform to classic patterns of regulation.” The internet, contrary to popular beliefs is not a lawless entity, and it does not function in an utopian like governance. But the nature and design of the internet leads to various issues, which challenge the universality of the laws associated with it. The legal hassles are highly complex to deal with, and hence the formation of laws becomes all the more complex. The problems and issues associated with internet are inseparable and there cannot be a general or universal argument to resolve or put an end to such issues. In substance, there can be and are laws which are still applicable to the internet, although they may not be specially developed for it, but it is rather a natural extension of common laws which are now conveniently and successfully extended to the internet as well. This can be substantiated with the increasing awareness and knowledge about cyber crime, which is a recognizable offence and punishable in various states. The discussions in the above section mostly revolve around the past or the present but the future of internet law must also be taken into consideration. Although currently there may not be a remote possibility of a successful model which ensures a universal acceptability and compliance. However the same may not be true in the future. According to Delta et al (199815): “...it is not necessary or constructive to treat the Internet as a source of new legal issues that create a new legal discipline called ‘internet law’. Instead, we argue the Internet is a new medium in which traditional legal principles are analyzed in novel contexts. There is no ‘Internet law’ as such, and no such specially designed law is required.” ‘The nature of the Internet renders it resistant to traditional forms of regulation. Government control is not the answer for the simple reason that it is unlikely to work. It truly is beyond the reach of any single nation-state.’ Internet is an unusual technology in the sense that it transcends beyond boundaries and is immensely massive both in terms of scope and extent. It is not confined to any single nation-state and hence laws governing and / or defining its control and use are difficult to implement. Traditionally regulations can be imposed by government within the boundaries of their respective nations, but the vast scope and outreach of internet makes it highly impossible for individual nation states to develop laws or ensure its effective implementation. Also the decentralized nature of Internet makes it all the more elusive to laws of any particular nation or group of nations. Also, the government control is highly unlikely to function effectively, mainly because the internet is too wide a medium which is highly decentralized, and transnational in nature thus making it one of the most complicated networks beyond the reach of any law, or perhaps any single nation state. This implies that it is resistant to any laws and more specifically traditional forms of regulation. Thus, enforcing the current set of laws may not be helpful, but the development of new laws altogether, might help. For instance, in the case of certain record companies, various attempts were made ensure that the copyright laws are upheld and that piracy can be avoided. However, due to peer-to-peer sharing networks, music and movies are being uploaded online and downloaded by countries across the globe. In such a case, the laws and rulings of the country to which these products belong, hold little or no relevance when their products are being sold online, beyond national boundaries and far beyond the reach of legal jurisdictions. Similar setbacks can be observed across various issues, however, the challenges posed by the sheer vastness of internet, are not limited only to the enforcement of laws, but also raises questions over the cross-jurisdictional issues where terms of trade / contract are violated. Different countries have different set of standards –with respect to freedom of speech; freedom of expression; right to privacy etc. and hence protection and safeguarding of these rights differ accordingly. This suggests that although nation-states or group of nations come together to develop universally applicable cyber laws, they cannot be enforced effectively due to such differences. The collision of interests between various countries on various grounds might ultimately lead to balkanization of the internet, with the same unresolved issue of lawlessness. A remarkably infamous - instance of such collision / conflict of interest took place in the year 2000, when a French court, in an alarming move, ordered Yahoo! to ban the French users from accessing sales of Nazi memorabilia on their US based website on the grounds that their country prohibits racism, and it is against their anti-hate speech law. Several anti-racist groups in France argued that the French law has made it illegal to sell anything which tends to promote or glorify racism; deny the holocaust or glorify the Nazis. Yahoo, on the other hand argued that such a ban cannot be imposed since it is against the American law to prohibit individuals from accessing such materials, because they do not have any such law which prohibits their citizens from selling such items, and hence removing the items from the auction would lead to a breach of the countrys constitutionally guaranteed freedom of speech (WSWS, 200116). This case highlights the fact that a clear conflict of interest led to difference in opinion and perspectives among the two countries and hence led to the question of which law can be enforced in such a situation. Another similar incident occurred, in Australia, in 2002 where the Australian High Court ruled that a businessman who was an Australian citizen could sue Dow Jones – the publishers of Wall Street Journal, based in U.S. for libel, despite the fact that content originated in the U.S. Instances such as these indicate the wide disparities in laws of different nations, the conflict of interests which tend to remain unresolved, and the resultant lawlessness of the internet as medium. It further highlights the apparent weakness in the internet governance laws and brings its flaws to the fore, indicating the need to revamp the legal policies and ensure protection of rights of all individuals, at the same time. These examples merely provide a glimpse to the wider challenges that lay ahead and which needs to be addressed effectively to prevent such situations in the future. It also provides a basic understanding of the limited scope and outreach of applicability of laws of one nation-state on the other. Such balkanization of rule and legal policies can only lead to the expansion in the potential of the network however; the nation states have clearly not yet reached a phase whereby their full potential could be utilized. This is also indicative of a need, perhaps on a global level, to develop and design a model of governance, which is transnational in nature and yet respect and uphold the laws of each individual nation. Various agencies have attempted to develop models of internet governance in the past with limited success. However, regardless of their sincere attempts organizations such as these continue to remain restricted in their powers, to encourage global participation and/ or cooperation. Most of these models, for internet governance are led by developed countries, leaving the developing world in deep regret for not having been included in the decision making process. There is a heightened sense of exclusion among such developing countries, who are restricted by authority, technological advancement to enforce laws and policies and capital which is the pre-requisite for participating in the process of international rule making. Also the process of international law making, is a tedious process which involves considerable time and effort – in this case, ensuring the active participation of as many nations as possible, which is a humanly impossible task to achieve. Conclusion Regulating the internet, with its vast scope and outreach, is beyond the reach of any physical boundaries of time or space. The cyber world, has this unique quality of distancing its inhabitants away from the reach and control of physical confines of nationality giving rise to regulatory concerns in the event of a breach of law. Self-regulation, as opposed to institutional authority / control, is a feasible alternative, but it can only work within one’s own boundaries and hence is not an effective solution to this immensely huge problem. Internet governance can only flourish in the presence of larger global co-operation and harmony, which in turn requires consensus on ideologies and approach towards various global issues. However, given the fact that the current century is plagued with conflicting ideologies and ideas, such a global and inclusive system of governance seems far-fetched thus, further strengthening the notion that government control of internet is highly unlikely to occur. Read More