Rickard Falkvinge: UK ISPs Censorship Violates Mere Carrier Status, Opens Way for Punishing Legal Assault

Commercial Intelligence, Cultural Intelligence
Rickard Falkvinge
Rickard Falkvinge

Censorship Triggers Liability: UK ISPs Need To Be Sued Way Out Into Atlantic

Infrastructure: Internet Service Providers in the United Kingdom have started censoring the Internet wholesale by default. This is a horrible transgression against the free exchange of ideas, cheered on by authoritarian politicians. However, there is an important weapon built into the legal framework against this kind of censorship, and it’s high time to use it in full scale.

To protect Internet Service Providers (ISPs) from legal liability for the information that travels in their wires, the United States has a concept called Common Carrier, and Europe has a similar concept called Mere Conduit. In essence, it means that as long as an ISP stays entirely transport-neutral, then it is not liable for anything transmitted through its wires, in pretty much the same way that a mailman is never responsible for the contents of a carried sealed letter.

However, this Mere Conduit shield doesn’t come for free. More specifically, as outlined in the European Union’s e-commerce directive, there are three strict conditions that must be met for the liability shield to kick in. In essence, it’s transport neutrality. Quoting from the Wikipedia article:

Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission.

Let’s look at the most relevant part once more, in the conditions required to not be liable for what you carry on your wires as an ISP:

does not select […] the information contained in the transmission

Do you see what has happened here? With censorship, any censorship at the ISP level, that ISP starts selecting what information can be contained in the transmission and what information cannot. It doesn’t matter if it greenlights 99.9999% of requests or 99% or 50% or just 1% – anything short of the full one hundred per cent means that the ISP is sorting information into “allowed” or “disallowed” and therefore selecting the information contained in the transmission. Transport neutrality is an “on” or “off”, it doesn’t come in grayscales.

The UK ISPs have instituted a full-on censorship regime, where – unless you take active steps to circumvent or disable it – they are disallowing information from news sites like TorrentFreak (which is an absolutely horrible attack on the freedom of ideas). The United Kingdom is now actively sorting political ideas into allowed and disallowed, just as we said would happen from day one of this political censorship regime – for that’s what it is, and nothing else.

In doing so, UK ISPs have given up their Common Carrier and Mere Conduit liability shield.

I don’t think any ISP in the UK considered this effect, but the Mere Conduit legislation is and has been one of the strongest weapons we’ve had against censorship: any ISP that starts sorting the Internet into allowed and disallowed becomes liable. “Becomes liable”, as in becomes liable for all of it.

Any UK ISP taking part in the censorship regime is now legally liable for everything, everything, that goes through their wires.

They need to be punched as hard as the law will allow for hurting the open society to this degree. They need to get a ton of bricks dropped onto them.

The UK ISPs need to be sued for every single thing on the Internet. They are liable for it now, having thrown their liability shield aside to institute censorship. They need to be sued way out into the Atlantic as punishment for hurting the Net and their customers to this degree, each and every one of them.