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In this time, these days, the censors' desire is to close our eyes, shut our mouths and close our ears, too.
In many countries, the Internet community is fighting to hold on to its freedom of speech inside the Internet, against attempts at censorship or pushes for restrictive legislation by the state, political groups or other kind of organizations.
The Internet as a medium supports all kind of contents. The final objective of these censorship attempts is to try to block or control the content. However, the focus of their actions is the medium.
In this paper, we first establish a relationship between the kinds of government models in different countries around the world and the current situation regarding Internet censorship. As a basic characteristic, we will establish differences between democratic and totalitarian states. In the first case, the constitution must ensure the rights of the citizens, especially the freedom of expression. In the second case, the government defines the rules and decides what content may be shown or published.
Our second goal is to draw a profile of Latin American countries, their government model and the current state of censorship initiatives.
The situation we encounter is far from perfect. Even in democratic nations, we can find initiatives trying to control or censor the Internet, from the states themselves, political groups or opinion groups.
For example, we have to remember the failed Computer Decency Act in the United States. In Chile, there is now in the Congress a bill attempting to regulate the contents of the Internet. This bill has been crafted by the Science and Technology Committee of the Chamber of Deputies of the Chilean Congress. We will analyze in detail this initiative, its form, its objectives and especially the legal and technical contradictions contained in it. In particular, the bill makes no attempt to distinguish between the author of a particular piece of information, the hosting provider, the ISP or other parties involved in the diffusion of the material considered offensive. It does not distinguish between material originated in Chile or abroad, and it even makes it illegal to publish on the Internet some materials that are completely legal in all other types of media.
We view the contribution of this paper as being the compilation of a global map of the state of censorship of the Internet, from the point of view of regulations enacted or proposed to regulate content, using the Chilean proposed bill as a case study. By nature, this map is a changing one; and we plan to use this as a starting point for a new Web site that will be a resource center for people studying and fighting Internet censorship around the world.
These days, we would think that censorship is an efficient mechanism for totalitarian regimes to attain their goal of controlling the minds of the population. We think of cases like Hitler's Germany or the Soviet Union during the Cold War. Totalitarian philosophy is to control the thoughts of the subjects of the state, so it can control their way of life, their habits, what they read, what they talk about, in such a way that dissidence will be made impossible. The subjects of the state live enclosed in a fictitious reality, or at least a partial one.
Normally, it is like a glass enclosure, where a community sees itself reflected, sees its surroundings, but they cannot see through. In turn, they can be observed from the outside, with an uncontrolled eye, which can be much more critical.
These systems are far from being perfect and sane, and, according to human nature, homogeneity is never perfectly attained. It is for this reason that different voices and ideas come to exist, and they are perceived as a threat to the existence and the functioning of the system, while the free debate of ideas is the best form to convince the other persons. Citing Professor Humberto Maturana, for the reformulation of experience to become explanation, it needs to be accepted as valid.
We tend to think that in democratic countries, the free flow of ideas and information is highly valued, like the right to life and to the physical and psychological integrity of the persons, and they enjoy strong legal protection. Legal systems around the world not only protect and guarantee these rights in the territorial context of the law, but also reinforce them through the signing of international treaties on the subject, where they agree to adapt their local legal systems to comply with these global treaties. Since the time the Universal Declaration of Human Rights was signed, freedom of expression is considered one of the foremost rights, and it is also enshrined in the First Amendment of the U.S. Constitution.
Can, then, a law be created that restricts this freedom, when the state has bound itself to protect it? We will probably encounter several arguments for its limitation, but without a doubt it should be an ultima ratio, i.e., that last reason and the most extreme, to restrict this freedom.
We treat here the latest attempts at Internet censorship. The short-lived Communications Decency Act was an example that freedom of expression is so highly valued, and constitutionally protected, that it is not possible for the lawmaker to try to break the hand of the constitution of a state. In the Reno vs. ACLU suit, the force of this freedom was confirmed by the ruling of the appeals court in Philadelphia; and when appealed, this law was found to be in violation of the First and Fifth Amendments by the Supreme Court. This historic ruling was extremely important for the Internet community, reflecting the importance of freedom of expression for this medium.
In the case of China, we know not only that access to the Net is controlled, but also of the actions against Lin Hai, who was sentenced to two years in jail for sending email addresses to a publication that is deemed hostile by Chinese authorities. Cybercafes must obtain a license, and ISPs must register their customers with the authorities. Access is blocked to sites carrying contents considered to be subversive or pornographic by the state, which justifies it on the grounds of national security and the stability of the political system.
In Singapore, the control has the same goal -- to forbid access to information that is considered a priori by the government to be harmful for the general population, for whom censorship is stronger than for business users.
In Turkey, a chat forum was sufficient for a young man to be punished for insulting the security forces by disapproving of their actions against some protesters, which is considered a crime in that country. His defense claims that his writings were not for the public in general, but only for the Internet users in that particular forum.
Australia, against the opposition of ISPs, is seeking to regulate the contents of the Internet. ISPs would be forced to prevent the dissemination of offensive contents, through "technically executable" means, and to monitor the online material when they are required to do so. This measure not only affects freedom of expression in terms of publishing of materials, but it also imposes censorship on users, by a restriction executed by the ISP.
In South Africa, there exists a proposed amendment to the Films and Publications Act, aiming to regulate the access to contents by the population.
In Britain, the interception of communications by the police would include Internet communications, through the intervention of ISPs.
It is hard to argue that these restrictions are compatible with the signing of international treaties that contain provisions to strengthen the importance of these freedoms. Freedom of expression is protected by at least three of the most important international treaties on human rights that exist today, and it is important to stress that we are speaking of a human right. Freedom of expression without prior censorship is protected by the Universal Declaration of Human Rights of 1948, by the Pact of Civil and Political Rights of 1966, by the Pact of Economic, Social and Cultural Rights of 1966, and regionally, by the American Convention of Human Rights of San Jose de Costa Rica of 1969.
As we have said, signatory countries are bound to coordinate the internal legislation of each state to attain the goals of each treaty, without forgetting another of the basic principles of international law, which is the right of the peoples to self-determination. Probably, many of the countries that are "pro-censorship" have not signed these treaties, but this does not excuse them from the general rejection of these kinds of policies. Fortunately, we do not know of censorship attempts in Latin America, except for the tight controls in Cuba and the Chilean initiative that we describe in the next section.
In Chile, a parliamentary motion has been submitted in the Chamber of Deputies that aims at censoring the contents of the Internet. The bill proposes to punish individuals that use the Net to disseminate contents that are offensive to morals, public order or "proper customs." This kind of description of conduct is what we call a "blank penal law," because the determination of whether a given conduct is contrary to the law is in the hands of the judge. It is in his judgement to decide if a given behavior is against what is understood to be "morally correct," or if it belongs to the realm of the private, and therefore outside of the interest of the general community. It is also the judge who determines if something is against "proper customs."
These vague legal descriptions allow a semi-rigid system, as the Chilean one, to modernize itself as customs evolve; but for the law to be "fair" it is necessary that judges use their criteria, the wisdom that comes from experience, and the good judgement that should inspire the correct administration of justice.
Because of the territorial nature of the law, this bill is little else than a romantic declaration of intentions. It would only carry force within the boundaries of the Republic of Chile, and this makes it patently useless, as the Internet is by nature independent of political boundaries. The only way the law could apply would be if the server that hosts a given content is in the territory of Chile, and this is the law's Achilles' heel, a weakness that can easily be exploited to circumvent it.
A notorious example of this is the case of the book called "The Black Book of Chilean Justice." Because of a ban on the sale and reproduction of this book, a result of a suit brought by a Supreme Court judge who appeared prominently in the book, the courts ordered all copies of the book to be confiscated. The whole country was left wondering about what was in the book. But everyone soon learned everything when the whole contents of the book were made available over the Internet, in a server physically located abroad. A perhaps nontrivial detail was that the domain name of this server was a ".com" and not a ".cl", which removed another dependency of Chilean law.
The rest of the articles of the bill are programmatic and the text is vague in many respects. However, this kind of law would not only be ineffective, because of the limitations of territorial law when faced with the ubiquity of the Internet, it is also unnecessary. The legal system already contains laws that allow the prosecution of violations of the respect of personal reputations, and of behaviors that are against public morals and public order, such as the Law of Abuses of Publicity (Nº 16.643) and the Penal Code.
However, the right to freedom of information without prior censorship is guaranteed by the constitution, in its article 19 Nº 12; and the implementation of this guarantee and its limitations due to civil and penal responsibility that arise from the exercise of this freedom are also in the law mentioned.
Fortunately, this attempt at censorship has been widely rejected by the Chilean Internet community. On the other hand, there are no laws that would force ISPs to work as censors of the contents accessed by their customers. In a very interesting ruling issued in December 1999, the court of appeals of Concepción, in a constitutional protection case, has found that the responsibility derived from a publication in the web belongs to the "content provider" (or author) when said contents are illicit or harmful. The service provider would only be responsible in the event that, knowing of the illicit activity of a customer, it has not deleted the data, or not prevented access, because it is the only entity that can provide the identity of the persons responsible.
