The Situation

As Amazon cites Terms of Service violations in taking down Wikileaks and Twitter defends the organization’s supporters, the consequences of ceding control over online information to corporations are rapidly coming to the fore. More specifically, Terms of Service (ToS), Acceptable Use Policies (AUPs), and Privacy Policies dictate the conditions under which users can access the internet, host, and/or post content online. These policies are essentially private contractual agreements, and as such, they are not required to, and frequently do not, include the kind of rights-respecting language found in the Universal Declaration of Human Rights, the 1st amendment of the US Constitution, and other legal documents that protect freedom of speech and the right to information.

 

Governments, corporations, and increasingly individuals have identified Online Service Providers (OSPs)[1] as a convenient single point of content control, because courts are perceived to be too slow and ill equipped to deal with content that is potentially illegal or infringing and activities on the internet. As such, in many jurisdictions governments have delegated the regulation of content to OSPs. This regulatory framework forces OSPs in most countries to play judge, jury, and executioner in determining the legality of online content, while simultaneously minimizing their liability in its propagation. This has a chilling effect on free speech online, as it is in the best interest of OSPs to block, filter, delete, or otherwise remove content in order to avoid costly legal disputes and/or the wrath of their regulators.

 

The Idea: The Online Freedom of Speech Index

Currently, there is no international database that documents and explains ToS to the everyday user. There is no general forum for consumers to explore common experiences and discuss problems.  There is also no website which catalogues the number of takedown requests, which websites have been removed, or the reasons for doing so, nor are there accurate data available on the actions of individual OSPs whose processes for determining the legality of content remain shrouded in secrecy. The lack of such a public understanding of their rights or a record of take downs raises serious questions of accountability, transparency, due process, freedom of speech and of information, and the overall appropriateness of outsourcing content regulation to private actors under a self-regulatory framework. Given the perverse incentives for removing rather than preserving speech, this is tantamount to a privatization of censorship.

 

 



[1] As regards this last point, the Chilling Effects Clearinghouse (chillingeffects.org) -- from which this initiative takes much inspiration -- collects the notifications users receive (e.g., a DMCA takedown notice), but doesn’t record how these requests were resolved.

[2] Turow, et al. “The Federal Trade Commission and Consumer Privacy in the Coming Decade”. I/S A Journal of Law and Policy for the Information Society, 2006: pp 738-739. Available at: http://www.ntia.doc.gov/comments/100402174-0175- 01/attachments/FTC_and_privacy.pdf

[3] https://www.chillingeffects.org/

[4] https://www.herdict.org/web/

[5] https://www.google.com/transparencyreport/

[6] http://www.google.com/accounts/tos/highlights/utos-us-en-h.html

[7] To get a better idea of what constitutes a UCG site, see: https://spreadsheets.google.com/a/accessnow.org/pub?key=0Al8ncNRrcruwdFhqWGF3bkFSd2RtcmZLYzFiVEg4Wnc&single=true&gid=0&output=html



[1] As outlined in the Digital Millennium Copyright Act, an OSP is defined as any “entity offering the transmission, routing, or providing of connections for digital online communications” and “a provider of online servers or network access, or the operator of facilities therefor [sic].”





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