The Architecture of Invisible Censorship: How Digital and Meatspace Censorship Differ
Prakash, Pranesh
We often believe that the Internet routes around censorship; at the same time we often feel the same rules that should apply to offline speech (e.g., not being removed without a court order, etc.) should apply to online speech as well; we often understand that there are differences between offline and online censorship, but what are the implications of the intermediated digital lives that we lead on how we engage in and combat against censorship? He probes the idea of "invisible censorship" as the dominant mode of modern digital censorship, in a break from previous forms of social, private, or state-directed censorship which were mostly visible and hence challengeable, and presents tentative thoughts on what we do legally, technologically, and socially to uncloak invisible censorship.
 Excellent. I'm very happy to be here and good to talk to all of you. Today I'll be talking about an idea I've been mulling over in my head for a while but haven't really got a chance to write down or present. So you guys are my my test audience for this and please do be kind. I'll be talking about this idea called the called invisible censorship that that I've been thinking about and how it's currently architected. One other way to think about this could be in terms of how digital and needs to be censorship actually deferred. For those of you who who came here expecting Nani Janssen, I'm not her unfortunately. My name is Prani Shrikash. You can find me on multiple networks and I have multiple affiliations. Primarily I work with this thing called the Center for Internet and Society based in Bangalore as a policy director and do a work in a variety of different topics. But jumping straight into the meat of the topic as it were, there are some similarities people would say between offline and online censorship. For instance they would say the same human rights should apply both offline and online. There was a big debate in the Human Rights Committee about this and this was adopted as a principle recently. They would say that what we think of in terms of publishers and printing presses offline are well-mirrored online in terms of your web hosts etc. or the blog software that you're using. They would also say that there are things like common carriers just as you wouldn't hold the telephone company or you wouldn't hold the postal service liable for the terrorist threats that are sent through them. Similarly you shouldn't hold ISP's liable, goes the common refrain. Yet people also think they're different. That online intermediaries need a much stronger degree of protection than offline. We don't have for instance the equivalent of India's section 79 of the IT Act or the US's you know section 230 of the Communications Decency Act etc. For offline players really you don't there's a different set of case law etc. around that. People would contend you can't extend simple ideas of sovereignty online because your jurist that world is borderless whereas all the regular laws you have around those that restrict freedom of speech are restricted to national borders. There are further differences. There's just way too much speech online to regulate. Thinking about India say since 1947 when we got independence how much would people have expressed themselves through newspapers and television and radio and compare that to how many people would actually have found a voice since the late 90s on the Internet. I in this thought experiment I think it's clearly the Internet that becomes the winner. People can directly express themselves in a way that just wasn't possible earlier which has resulted in too much unedited impolite indecent threatening speech which has resulted in in the catastrophe for our speech laws and we should just not try even to regulate it yet. They're similar in India for instance some things that are not unlawful offline are suddenly made illegal online through one law that I'll talk about a bit later. There are similarities. People would say forget about just a substantive comparison of what's illegal and what's illegal but even the processes should be seen. You just as you can't ban a book without a court order you shouldn't be able to ban an e-book without a court order either. Yet there are differences. Technology makes censorship impossible. Politicians and bureaucrats just don't understand technology which is why they're making all these awful attempts at internet censorship. And there is this entire strain of utopian and anarchic thought that existed since at least the early 90s when it comes to visions of cyberspace. I don't think there are any clear answers. We can just go back and forth in terms of comparisons in terms of metaphors etc. But what I find useful in thinking about these issues is actually to think of it in terms of categories and how these categories shift in over time. So this is one way of categorizing censorship based on actors who's acting and the kind of act that it is. So there can be direct naked state regulation of speech. In democratic countries this is not really the preferred mode anymore. At the very least it's happening to much lesser extent now than it used to. Then there is this entire monopoly of state compelled private regulation state aided and state independent private regulation. These are the most common forms of censorship now in a way. State compelled private regulation is what generally happens in terms of internet censorship because the governments don't really own the infrastructure anymore. So the governments have to go on to other people to be able to regulate these spaces and have to send out orders to others. And this applies not just to censorship but think about surveillance as well. I think most of these categories actually apply to when we think about surveillance too. And I think these categories which I'm not getting into detail the way it right now, they help us think about the shifts that's caused both in the difference between traditional and digital censorship as well as the shift between what I think of as visible and invisible censorship. And I think these two shifts are happening simultaneously and now I will explain what is invisible censorship. But first think about the fact that censorship is never never just pure silencing of speech. Censorship is very productive. It always has been. Whatever the context you take and you're trying to apply it to that, it always has been productive. Of course there's a huge price we pay for censorship. Of course people have died resisting censorship. Of course people have been jailed. Of course conformity is created in a in society. Of course you lose autonomy. It's an affront to dignity. Of course all of these things are true. But at the same time you always fight back. Whatever kinds of examples you take, we always fought back whether it's in Franco- Spain or whether it is in China through the Cultural Revolution and now whether it is political censorship or whether it is cultural censorship. Whether it is online or offline. Whether it is whichever era you take. We have always created literature about it either directly confronting it or indirectly. We've always joked about it. We've always resisted and subverted censorship. Yet this I fear would be more difficult in the era of independent censorship, invisible censorship, I beg your pardon. And how does invisible censorship arise? Because the older forms of censorship which were primarily either societal censorship, societal censure for what you say and do, or direct state censorship. The states sing what you can and can't say. Those things which are easy to see are changing. With technology what we're getting is more and more private censorship that is unaccountable. We're getting these three forms that I spoke about. State-compelled, state-aided, and state- independent censorship. And also self-censorship. And that's also an important category that's very difficult to see. You don't know when you are self-censoring. It's not easy to see when someone else is self-censoring for instance. And the difficulty with invisible censorship, the difficulty caused by it, is that we cannot fight that which we can't see. And perhaps it might be more easier to actually think of, go through some examples of what I'm thinking about in terms of invisible censorship. So state-compelled private regulation. One easy example would be the intermediaries guidelines rules that were passed by the Indian government, not by the parliament but by the executive a few years ago. What did they do with this law? They basically said that these minimum terms of service clauses should be there in the terms of service of all intermediaries regardless of who you are. And this is a mechanism of enforcement of these terms of service if you receive a complaint from any private individual about violation of these you have to remove the content. And where did they get these standard terms from? From things like the TOS for World of Warcraft, for Yahoo, etc. Okay, and if you want to study the world of policy laundering, I think this is a rife world of examples to actually look at how all of these policies are so similar to each other. And if you want to see the differences between these between policy and practice then also you really do need to look through these. And the only way to actually observe it, the only way to actually study it, is by becoming a participant in this space. So because it's it's there no records are kept of who sent a complaint to which intermediary of any sort and whether the intermediary acted upon it or not. So what we at the Center for Internet and Society did was we did a policy sting operation. So we sent fake fraudulent frivolous and I think fun complaints to seven different intermediaries who are of different kinds of intermediaries as well. Some were search engines, some were e-commerce websites, etc. And what we found was eventually six out of the seven complied. In reality five complied but because one was relying on the other for its services, they ended up with six complying and thousands of websites were removed either from search results or a bunch of comments from a political from a newspaper were removed without anyone actually knowing about it without anyone finding out about it. And this shows the fact that there is no transparency at all in this process. There was no visibility about what was and was not removed. There was no visibility in terms of process, in terms of you know due process and principles of natural justice. There was no chance given to those whose content was removed to be able to say this is actually a perfectly legal statement that I've made and not just legal it's perfectly sensible statement and why are you considering this offensive? Right? The no no person ever wrote back to CIS to ask these questions. Okay the the and most of the intermediaries didn't raise these questions either. They removed it. Some cases they removed it after telling us that they wouldn't remove it which is interesting and obviously this is resulting in over censorship stuff that is perfectly legal and not just perfectly legal but perfectly acceptable in society was also removed from the internet on the basis of our complaints and there were no records of this whatsoever. Nobody ever found out about it. If we hadn't told the world in a report that we wrote that this has happened that we were able to get all of this removed nobody would have found out. Contrast this with the system of of of state direct state regulation right where this is much more obvious there are court records it's published in the newspapers you find out about it you can challenge it but this you can't challenge just because you don't know. There are other examples state aided private regulation so one easy example of this is copyright right which has copyright enforcement needs the same infrastructure as that of censorship their state independent private regulation which you know has different jurisprudential justifications so one of them is the idea of contracts that you know this is a service we're offering if you don't want the service don't accept the terms of service you know use one of the thousands of alternative services that exist the other is the idea of property rights so think about a restaurant right you can't just go into a restaurant and hold a rally for whatever political cause you believe in because that's private property and the likes of Facebook employ a similar justification for why they should be allowed to put whatever kinds of rules they want for their space except that that's not necessarily the rhetoric they use the rhetoric they use is that of innovation that of freedom of autonomy and all of this rhetoric allows for the existence of an infrastructure of private control and so when we think about intermediary liability we have to think much more deeply about what exactly we're protecting intermediaries from and now we're living in a world where it's difficult to say what's private and what's state it really is I often don't know so municipal Wi-Fi's there's a recent paper that will be coming out that I read a draft of fair the author talks about how municipal Wi-Fi's in the US have terms of service that you know the government can't really put in place but when you when he has a legal scholar delves into it it's actually a difficult decision to say whether this the municipality can do this or not because it's of course it's a public-private partnership and and the infrastructure is created out that Facebook Facebook is larger than many states Facebook is almost as large as India and yet Facebook does not have to abide by any of the laws that the Indian government has to Facebook does not have to abide by the Universal Declaration of Human Rights which applies to states and whatever however we conceptualize it I disagree with and quite respectfully with Frank LaRue who's the the UN special rapporteur on freedom of expression who's written whose done some fantastic fantastic reports for the UN on this on free speech issues and but one thing where I disagree with them is he likens the internet to La Plaza Pública a public square I don't think the internet is at all like a public square perhaps it should be but it isn't it is more like shopping malls and we have to be cognizant of that fact if you are to change it if you are to to effectively challenge it and we also have to be cognizant of fact that not all speech regulation is harmful that there are many kinds of speech that society should try and curb should try and minimize and we have to be cognizant of the fact that not all private censorship is bad either if I'm running if I'm running a service for a few of my friends or if I'm running a blog and I don't want pictures of cats and dolls and dogs or if I don't want you know things that otherwise would be legal okay I should be free to actually state that I don't want it and delete any comments that violate my policy so not all private censorship is bad and not all private entities need to follow all the rules and have all the responsibilities of a state and so this becomes a very complicated question in essence right and and so and I think the question of how do we have we unpack this world of both state and private of state like private regulation regulation of speech is a very complicated one and that's the same kind of complication where we have to delve into that when we think about invisible censorship they're intricate they're intrinsically linked and there are no easy answers but in the immediate one thing we can do is make things visible through greater transparency one thing we can do is to increase the memory of the internet as it were that the way that the wayback machine for instance does or for increasing transparency the way that the chilling effects clearing house does and Google actually in some of this does a good job to whenever there's a video removed from YouTube you know of the fact that it was there at one point of time it never just disappears right you're told that it was removed and in most cases you were even told why it was removed that might not necessarily help it might be a wrong reason but you're given that information and that I think is very important similarly when Google removes something from its search results it says something that would have otherwise shown up for this search criteria is now not showing up that's really important and that I think is the beginning of this fight to make invisible censorship visible thank you very much so we have a few minutes for questions are there any questions so actually if you say that some some censorship might be helpful to because it is desirable in a society because there is something said that the people won't like if you say hate speech but whatever that would be I like to challenge you that because I think that if you think of a grown-up society I society can always say okay no we don't want that somebody says something and he can be challenged and so I don't think that we should then trust private companies to do this job for us and especially if we see that these companies are often from completely different cultural contexts so if we have the American companies how can we trust them to to regulate speech in Europe or even in Asia where they're even less familiar with with traditions yeah so I'm like very maximalist maybe on not removing that last part and you're very I'm very extremist and not putting stuff down because I I think we should trust society and we should trust debates on this and I think this is also the best way to to increase transparency about societal issues I agree I don't necessarily agree that more speech is always the right answer to speech you don't you find offensive sometimes that that doesn't work speech can be harmful and you don't necessarily have a way of countering it that more speech defamation is and there's some studies done around false headlines and false news articles information being carried on them and how corrections don't really help solve the problem how retractions later don't really help solve the problem etc but that issue apart I largely agree with you that and when I was talking about censorship that some censorship might actually be desirable I wasn't necessarily thinking in terms of private infrastructures of censorship but societal censorship that you if you find some speech you know objectionable I think you should actually take out a march in in the middle of you know your public square about it you should challenge ideas in a in a vibrant democratic society so yeah I think we're in agreement any other questions yeah hi Pranish thanks for your talk I like it a lot I have a question on one other part of the invisible censorship which was also the self-censorship that you mentioned right I mean in that case basically do you have any ideas on how to record that because I mean how do we call something that in your hat you put it away yeah I think one cause for self-censorship is surveillance is more surveillance right and and that's something we we do need to attack if you're to attack this idea of self-censorship one cause of self-censorship is is when there is excessive societal or legal censorship and and the chilling effect that that causes so even if there might not be a law against what you want to see you feel that what you're about to see might violate something okay even when that isn't necessarily true that is also a cause of self-censorship and so the only solution to that is a more open and free society so that might sound like a glib response but but I I don't see any other way of actually targeting self-censorship so hi my name is and I appreciate your you talk too much and a few weeks ago that there was a lot of fuss about the TTIP treaty but we in North America and Europe and during that time there was a political initiative here that also rallied in Facebook and I tried to invite a number of my friends in my Facebook address book I tried to invite them to that Facebook event and I got very obscure Facebook error messages that said I'm sorry because of your behavior in the past we cannot allow you to invite people to this event and I tried to complain to Facebook and it was very like the black hole it was like Franz Kafka to the Germans and amongst us you know and do you have a do you have similar experiences you have an opinion on that I'd be very interested thank you I think that's a that's a very interesting question there are I think quite literally thousands of examples one could one could pick up off these kinds of of censorship really because it does affect your right of association right and you can come up I think there are actually existing thousands of such examples but how do we counter this I that becomes a tough part one of the things we do need is to not be dependent on centralized services like Facebook not give too much power to these centralized corporations to use more federated technologies one thing we I think that is part of the answer part of the answer is lies in all of these things change you have to change our thinking about corporations in a world where they span across multiple jurisdictions in a world where they're mostly dealing with intangibles like our our data and our private information in a world where they're dealing with things like intellectual property etc I think we need to change many of our thoughts about corporations and we also need to encourage what a legal scholar in the US calls the safety laboratories of the internet the fact that all of these different platforms have different kinds of systems for dealing with different kinds of services and between similar platforms also there might be different terms of service and different ways that they operate and and I think we need to encourage that so that you actually have a meaningful choice between multiple services so that you actually can say Facebook is really restrictive it doesn't allow for for meaningful political speech right now its search algorithm for Facebook has changed make making commercial organizations show up before non-commercial organizations etc etc so you need to have a meaningful alternative sometimes there there isn't one in which case we need to think about how we regulate it maybe a little bit more like a state but otherwise we need to create these alternatives and and sustain them so thank you very much applause time is over thank you so just a short technical break and then we're moving to Venezuela
 Excellent. I'm very happy to be here and good to talk to all of you. Today I'll be  talking about an idea I've been mulling over in my head for a while but haven't  really got a chance to write down or present. So you guys are my my test  audience for this and please do be kind. I'll be talking about this idea called  the called invisible censorship that that I've been thinking about and how it's  currently architected. One other way to think about this could be in terms of how  digital and needs to be censorship actually deferred. For those of you who  who came here expecting Nani Janssen, I'm not her unfortunately. My name is  Prani Shrikash. You can find me on multiple networks and I have multiple  affiliations. Primarily I work with this thing called the Center for Internet  and Society based in Bangalore as a policy director and do a work in a variety  of different topics. But jumping straight into the meat of the topic as  it were, there are some similarities people would say between offline and  online censorship. For instance they would say the same human rights should  apply both offline and online. There was a big debate in the Human Rights  Committee about this and this was adopted as a principle recently. They  would say that what we think of in terms of publishers and printing presses  offline are well-mirrored online in terms of your web hosts etc. or the  blog software that you're using. They would also say that there are things  like common carriers just as you wouldn't hold the telephone company or you  wouldn't hold the postal service liable for the terrorist threats that are sent  through them. Similarly you shouldn't hold ISP's liable, goes the common refrain.  Yet people also think they're different. That online intermediaries need a much  stronger degree of protection than offline. We don't have for instance the  equivalent of India's section 79 of the IT Act or the US's you know section 230  of the Communications Decency Act etc. For offline players really you don't  there's a different set of case law etc. around that. People would contend you  can't extend simple ideas of sovereignty online because your jurist that  world is borderless whereas all the regular laws you have around those that  restrict freedom of speech are restricted to national borders. There are further  differences. There's just way too much speech online to regulate. Thinking about  India say since 1947 when we got independence how much would people have  expressed themselves through newspapers and television and radio and compare  that to how many people would actually have found a voice since the late 90s on  the Internet. I in this thought experiment I think it's clearly the  Internet that becomes the winner. People can directly express themselves in a way  that just wasn't possible earlier which has resulted in too much unedited  impolite indecent threatening speech which has resulted in in the catastrophe  for our speech laws and we should just not try even to regulate it yet. They're  similar in India for instance some things that are not unlawful offline are  suddenly made illegal online through one law that I'll talk about a bit later.  There are similarities. People would say forget about just a substantive  comparison of what's illegal and what's illegal but even the processes should be  seen. You just as you can't ban a book without a court order you shouldn't be  able to ban an e-book without a court order either. Yet there are differences.  Technology makes censorship impossible. Politicians and bureaucrats just don't  understand technology which is why they're making all these awful attempts at  internet censorship. And there is this entire strain of utopian and anarchic  thought that existed since at least the early 90s when it comes to  visions of cyberspace. I don't think there are any clear answers. We can just go  back and forth in terms of comparisons in terms of metaphors etc. But what I  find useful in thinking about these issues is actually to think of it in  terms of categories and how these categories shift in over time. So  this is one way of categorizing censorship based on actors who's acting  and the kind of act that it is. So there can be direct naked state  regulation of speech. In democratic countries this is not really the preferred  mode anymore. At the very least it's happening to much lesser extent now than  it used to. Then there is this entire monopoly of state compelled private  regulation state aided and state independent private regulation. These are  the most common forms of censorship now in a way. State compelled private  regulation is what generally happens in terms of internet censorship because the  governments don't really own the infrastructure anymore. So the governments  have to go on to other people to be able to regulate these spaces and have to  send out orders to others. And this applies not just to censorship but think  about surveillance as well. I think most of these categories actually apply to  when we think about surveillance too. And I think these categories which I'm  not getting into detail the way it right now, they help us think about the  shifts that's caused both in the difference between traditional and  digital censorship as well as the shift between what I think of as visible and  invisible censorship. And I think these two shifts are happening simultaneously  and now I will explain what is invisible censorship. But first think about the  fact that censorship is never never just pure silencing of speech. Censorship is  very productive. It always has been. Whatever the context you take and you're  trying to apply it to that, it always has been productive. Of course there's a huge  price we pay for censorship. Of course people have died resisting censorship.  Of course people have been jailed. Of course conformity is created in a in  society. Of course you lose autonomy. It's an affront to dignity. Of course all  of these things are true. But at the same time you always fight back. Whatever  kinds of examples you take, we always fought back whether it's in Franco-  Spain or whether it is in China through the Cultural Revolution and now  whether it is political censorship or whether it is cultural censorship. Whether  it is online or offline. Whether it is whichever era you take. We have always  created literature about it either directly confronting it or indirectly.  We've always joked about it. We've always resisted and subverted censorship.  Yet this I fear would be more difficult in the era of independent  censorship, invisible censorship, I beg your pardon. And how does invisible  censorship arise? Because the older forms of censorship which were primarily  either societal censorship, societal censure for what you say and do, or direct  state censorship. The states sing what you can and can't say. Those things which  are easy to see are changing. With technology what we're getting is more  and more private censorship that is unaccountable. We're getting these three  forms that I spoke about. State-compelled, state-aided, and state-  independent censorship. And also self-censorship. And that's also an  important category that's very difficult to see. You don't know when you are  self-censoring. It's not easy to see when someone else is self-censoring for  instance. And the difficulty with invisible censorship, the difficulty  caused by it, is that we cannot fight that which we can't see. And perhaps it  might be more easier to actually think of, go through some examples of what I'm  thinking about in terms of invisible censorship. So state-compelled private  regulation. One easy example would be the intermediaries guidelines rules that  were passed by the Indian government, not by the parliament but by the executive  a few years ago. What did they do with this law? They basically said that  these minimum terms of service clauses should be there in the terms of  service of all intermediaries regardless of who you are. And this is a  mechanism of enforcement of these terms of service if you receive a complaint  from any private individual about violation of these you have to remove  the content. And where did they get these standard terms from? From things like the  TOS for World of Warcraft, for Yahoo, etc. Okay, and if you want to study the  world of policy laundering, I think this is a rife world of examples to  actually look at how all of these policies are so similar to each other. And  if you want to see the differences between these between policy and practice  then also you really do need to look through these. And the only way to  actually observe it, the only way to actually study it, is by becoming a  participant in this space. So because it's it's there no records are kept of  who sent a complaint to which intermediary of any sort and whether the  intermediary acted upon it or not. So what we at the Center for Internet and  Society did was we did a policy sting operation. So we sent fake fraudulent  frivolous and I think fun complaints to seven different intermediaries who are  of different kinds of intermediaries as well. Some were search engines, some were  e-commerce websites, etc. And what we found was eventually six out of the seven  complied. In reality five complied but because one was relying on the other for  its services, they ended up with six complying and thousands of websites were  removed either from search results or a bunch of comments from a political from  a newspaper were removed without anyone actually knowing about it without anyone  finding out about it. And this shows the fact that there is no transparency at  all in this process. There was no visibility about what was and was not  removed. There was no visibility in terms of process, in terms of you know due  process and principles of natural justice. There was no chance given to those  whose content was removed to be able to say this is actually a perfectly legal  statement that I've made and not just legal it's perfectly sensible statement  and why are you considering this offensive? Right? The no no person ever  wrote back to CIS to ask these questions. Okay the the and most of the  intermediaries didn't raise these questions either. They removed it. Some cases  they removed it after telling us that they wouldn't remove it which is  interesting and obviously this is resulting in over censorship stuff that  is perfectly legal and not just perfectly legal but perfectly acceptable in  society was also removed from the internet on the basis of our complaints  and there were no records of this whatsoever. Nobody ever found out about  it. If we hadn't told the world in a report that we wrote that this has  happened that we were able to get all of this removed nobody would have found out.  Contrast this with the system of of of state direct state regulation right  where this is much more obvious there are court records it's published in the  newspapers you find out about it you can challenge it but this you can't  challenge just because you don't know. There are other examples state aided  private regulation so one easy example of this is copyright right which has  copyright enforcement needs the same infrastructure as that of censorship  their state independent private regulation which you know has different  jurisprudential justifications so one of them is the idea of contracts that you  know this is a service we're offering if you don't want the service don't accept  the terms of service you know use one of the thousands of alternative services  that exist the other is the idea of property rights so think about a  restaurant right you can't just go into a restaurant and hold a rally for  whatever political cause you believe in because that's private property and the  likes of Facebook employ a similar justification for why they should be  allowed to put whatever kinds of rules they want for their space except that  that's not necessarily the rhetoric they use the rhetoric they use is that of  innovation that of freedom of autonomy and all of this rhetoric allows for the  existence of an infrastructure of private control and so when we think about  intermediary liability we have to think much more deeply about what exactly we're  protecting intermediaries from and now we're living in a world where it's  difficult to say what's private and what's state it really is I often don't  know so municipal Wi-Fi's there's a recent paper that will be coming out that  I read a draft of fair the author talks about how municipal Wi-Fi's in the US  have terms of service that you know the government can't really put in place but  when you when he has a legal scholar delves into it it's actually a difficult  decision to say whether this the municipality can do this or not because  it's of course it's a public-private partnership and and the infrastructure is  created out that Facebook Facebook is larger than many states Facebook is  almost as large as India and yet Facebook does not have to abide by any of  the laws that the Indian government has to Facebook does not have to abide by the  Universal Declaration of Human Rights which applies to states and whatever  however we conceptualize it I disagree with and quite respectfully with Frank  LaRue who's the the UN special rapporteur on freedom of expression who's  written whose done some fantastic fantastic reports for the UN on this on  free speech issues and but one thing where I disagree with them is he likens  the internet to La Plaza Pública a public square I don't think the internet  is at all like a public square perhaps it should be but it isn't it is more like  shopping malls and we have to be cognizant of that fact if you are to  change it if you are to to effectively challenge it and we also have to be  cognizant of fact that not all speech regulation is harmful that there are  many kinds of speech that society should try and curb should try and minimize  and we have to be cognizant of the fact that not all private censorship is bad  either if I'm running if I'm running a service for a few of my friends or if  I'm running a blog and I don't want pictures of cats and dolls and dogs or  if I don't want you know things that otherwise would be legal okay I should  be free to actually state that I don't want it and delete any comments that  violate my policy so not all private censorship is bad and not all private  entities need to follow all the rules and have all the responsibilities of a  state and so this becomes a very complicated question in essence right  and and so and I think the question of how do we have we unpack this world of  both state and private of state like private regulation regulation of speech  is a very complicated one and that's the same kind of complication where we have  to delve into that when we think about invisible censorship they're intricate  they're intrinsically linked and there are no easy answers but in the immediate  one thing we can do is make things visible through greater transparency one  thing we can do is to increase the memory of the internet as it were that the  way that the wayback machine for instance does or for increasing  transparency the way that the chilling effects clearing house does and Google  actually in some of this does a good job to whenever there's a video removed from  YouTube you know of the fact that it was there at one point of time it never  just disappears right you're told that it was removed and in most cases you were  even told why it was removed that might not necessarily help it might be a wrong  reason but you're given that information and that I think is very  important similarly when Google removes something from its search results it  says something that would have otherwise shown up for this search criteria is now  not showing up that's really important and that I think is the beginning of  this fight to make invisible censorship visible thank you very much so we have a  few minutes for questions are there any questions  so actually if you say that some some censorship might be helpful to because  it is desirable in a society because there is something said that the people  won't like if you say hate speech but whatever that would be I like to  challenge you that because I think that if you think of a grown-up society I  society can always say okay no we don't want that somebody says something and he  can be challenged and so I don't think that we should then trust private  companies to do this job for us and especially if we see that these companies  are often from completely different cultural contexts so if we have the  American companies how can we trust them to to regulate speech in  Europe or even in Asia where they're even less familiar with with traditions  yeah so I'm like very maximalist maybe on not removing that last part and you're  very I'm very extremist and not putting stuff down because I I think we should  trust society and we should trust debates on this and I think this is also  the best way to to increase transparency about societal issues I agree I don't  necessarily agree that more speech is always the right answer to speech you  don't you find offensive sometimes that that doesn't work speech can be harmful  and you don't necessarily have a way of countering it that more speech  defamation is and there's some studies done around false headlines and false  news articles information being carried on them and how corrections don't really  help solve the problem how retractions later don't really help solve the problem  etc but that issue apart I largely agree with you that and when I was talking  about censorship that some censorship might actually be desirable I wasn't  necessarily thinking in terms of private infrastructures of censorship but  societal censorship that you if you find some speech you know objectionable I  think you should actually take out a march in in the middle of you know your  public square about it you should challenge ideas in a in a vibrant  democratic society so yeah I think we're in agreement any other questions yeah  hi Pranish thanks for your talk I like it a lot I have a question on one other  part of the invisible censorship which was also the self-censorship that you  mentioned right I mean in that case basically do you have any ideas on how  to record that because I mean how do we call something that in your hat you put  it away yeah I think one cause for self-censorship is surveillance is more  surveillance right and and that's something we we do need to attack if  you're to attack this idea of self-censorship one cause of self-censorship  is is when there is excessive societal or legal censorship and and the chilling  effect that that causes so even if there might not be a law against what you  want to see you feel that what you're about to see might violate something  okay even when that isn't necessarily true that is also a cause of self-censorship  and so the only solution to that is a more open and free society so that might  sound like a glib response but but I I don't see any other way of actually  targeting self-censorship so hi my name is and I appreciate your you talk too  much and a few weeks ago that there was a lot of fuss about the TTIP treaty but  we in North America and Europe and during that time there was a political  initiative here that also rallied in Facebook and I tried to invite a number  of my friends in my Facebook address book I tried to invite them to that  Facebook event and I got very obscure Facebook error messages that said I'm  sorry because of your behavior in the past we cannot allow you to invite  people to this event and I tried to complain to Facebook and it was very  like the black hole it was like Franz Kafka to the Germans and amongst us you  know and do you have a do you have similar experiences you have an opinion  on that I'd be very interested thank you I think that's a that's a very  interesting question there are I think quite literally thousands of examples  one could one could pick up off these kinds of of censorship really because  it does affect your right of association right and you can come up I think  there are actually existing thousands of such examples but how do we counter this  I that becomes a tough part one of the things we do need is to not be dependent  on centralized services like Facebook not give too much power to these  centralized corporations to use more federated technologies one thing we I  think that is part of the answer part of the answer is lies in all of these  things change you have to change our thinking about corporations in a world  where they span across multiple jurisdictions in a world where they're  mostly dealing with intangibles like our our data and our private information  in a world where they're dealing with things like intellectual property etc  I think we need to change many of our thoughts about corporations and we also  need to encourage what a legal scholar in the US calls the safety  laboratories of the internet the fact that all of these different platforms  have different kinds of systems for dealing with different kinds of services  and between similar platforms also there might be different terms of service  and different ways that they operate and and I think we need to encourage that so  that you actually have a meaningful choice between multiple services so that  you actually can say Facebook is really restrictive it doesn't allow for for  meaningful political speech right now its search algorithm for Facebook has  changed make making commercial organizations show up before non-commercial  organizations etc etc so you need to have a meaningful alternative sometimes  there there isn't one in which case we need to think about how we regulate it  maybe a little bit more like a state but otherwise we need to create these  alternatives and and sustain them so thank you very much applause time is over  thank you so just a short technical break and then we're moving to Venezuela
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Excellent. I'm very happy to be here and good to talk to all of you. Today I'll be talking about an idea I've been mulling over in my head for a while but haven't really got a chance to write down or present. So you guys are my my test audience for this and please do be kind. I'll be talking about this idea called the called invisible censorship that that I've been thinking about and how it's currently architected. One other way to think about this could be in terms of how digital and needs to be censorship actually deferred. For those of you who who came here expecting Nani Janssen, I'm not her unfortunately. My name is Prani Shrikash. You can find me on multiple networks and I have multiple affiliations. Primarily I work with this thing called the Center for Internet and Society based in Bangalore as a policy director and do a work in a variety of different topics. But jumping straight into the meat of the topic as it were, there are some similarities people would say between offline and online censorship. For instance they would say the same human rights should apply both offline and online. There was a big debate in the Human Rights Committee about this and this was adopted as a principle recently. They would say that what we think of in terms of publishers and printing presses offline are well-mirrored online in terms of your web hosts etc. or the blog software that you're using. They would also say that there are things like common carriers just as you wouldn't hold the telephone company or you wouldn't hold the postal service liable for the terrorist threats that are sent through them. Similarly you shouldn't hold ISP's liable, goes the common refrain. Yet people also think they're different. That online intermediaries need a much stronger degree of protection than offline. We don't have for instance the equivalent of India's section 79 of the IT Act or the US's you know section 230 of the Communications Decency Act etc. For offline players really you don't there's a different set of case law etc. around that. People would contend you can't extend simple ideas of sovereignty online because your jurist that world is borderless whereas all the regular laws you have around those that restrict freedom of speech are restricted to national borders. There are further differences. There's just way too much speech online to regulate. Thinking about India say since 1947 when we got independence how much would people have expressed themselves through newspapers and television and radio and compare that to how many people would actually have found a voice since the late 90s on the Internet. I in this thought experiment I think it's clearly the Internet that becomes the winner. People can directly express themselves in a way that just wasn't possible earlier which has resulted in too much unedited impolite indecent threatening speech which has resulted in in the catastrophe for our speech laws and we should just not try even to regulate it yet. They're similar in India for instance some things that are not unlawful offline are suddenly made illegal online through one law that I'll talk about a bit later. There are similarities. People would say forget about just a substantive comparison of what's illegal and what's illegal but even the processes should be seen. You just as you can't ban a book without a court order you shouldn't be able to ban an e-book without a court order either. Yet there are differences. Technology makes censorship impossible. Politicians and bureaucrats just don't understand technology which is why they're making all these awful attempts at internet censorship. And there is this entire strain of utopian and anarchic thought that existed since at least the early 90s when it comes to visions of cyberspace. I don't think there are any clear answers. We can just go back and forth in terms of comparisons in terms of metaphors etc. But what I find useful in thinking about these issues is actually to think of it in terms of categories and how these categories shift in over time. So this is one way of categorizing censorship based on actors who's acting and the kind of act that it is. So there can be direct naked state regulation of speech. In democratic countries this is not really the preferred mode anymore. At the very least it's happening to much lesser extent now than it used to. Then there is this entire monopoly of state compelled private regulation state aided and state independent private regulation. These are the most common forms of censorship now in a way. State compelled private regulation is what generally happens in terms of internet censorship because the governments don't really own the infrastructure anymore. So the governments have to go on to other people to be able to regulate these spaces and have to send out orders to others. And this applies not just to censorship but think about surveillance as well. I think most of these categories actually apply to when we think about surveillance too. And I think these categories which I'm not getting into detail the way it right now, they help us think about the shifts that's caused both in the difference between traditional and digital censorship as well as the shift between what I think of as visible and invisible censorship. And I think these two shifts are happening simultaneously and now I will explain what is invisible censorship. But first think about the fact that censorship is never never just pure silencing of speech. Censorship is very productive. It always has been. Whatever the context you take and you're trying to apply it to that, it always has been productive. Of course there's a huge price we pay for censorship. Of course people have died resisting censorship. Of course people have been jailed. Of course conformity is created in a in society. Of course you lose autonomy. It's an affront to dignity. Of course all of these things are true. But at the same time you always fight back. Whatever kinds of examples you take, we always fought back whether it's in Franco- Spain or whether it is in China through the Cultural Revolution and now whether it is political censorship or whether it is cultural censorship. Whether it is online or offline. Whether it is whichever era you take. We have always created literature about it either directly confronting it or indirectly. We've always joked about it. We've always resisted and subverted censorship. Yet this I fear would be more difficult in the era of independent censorship, invisible censorship, I beg your pardon. And how does invisible censorship arise? Because the older forms of censorship which were primarily either societal censorship, societal censure for what you say and do, or direct state censorship. The states sing what you can and can't say. Those things which are easy to see are changing. With technology what we're getting is more and more private censorship that is unaccountable. We're getting these three forms that I spoke about. State-compelled, state-aided, and state- independent censorship. And also self-censorship. And that's also an important category that's very difficult to see. You don't know when you are self-censoring. It's not easy to see when someone else is self-censoring for instance. And the difficulty with invisible censorship, the difficulty caused by it, is that we cannot fight that which we can't see. And perhaps it might be more easier to actually think of, go through some examples of what I'm thinking about in terms of invisible censorship. So state-compelled private regulation. One easy example would be the intermediaries guidelines rules that were passed by the Indian government, not by the parliament but by the executive a few years ago. What did they do with this law? They basically said that these minimum terms of service clauses should be there in the terms of service of all intermediaries regardless of who you are. And this is a mechanism of enforcement of these terms of service if you receive a complaint from any private individual about violation of these you have to remove the content. And where did they get these standard terms from? From things like the TOS for World of Warcraft, for Yahoo, etc. Okay, and if you want to study the world of policy laundering, I think this is a rife world of examples to actually look at how all of these policies are so similar to each other. And if you want to see the differences between these between policy and practice then also you really do need to look through these. And the only way to actually observe it, the only way to actually study it, is by becoming a participant in this space. So because it's it's there no records are kept of who sent a complaint to which intermediary of any sort and whether the intermediary acted upon it or not. So what we at the Center for Internet and Society did was we did a policy sting operation. So we sent fake fraudulent frivolous and I think fun complaints to seven different intermediaries who are of different kinds of intermediaries as well. Some were search engines, some were e-commerce websites, etc. And what we found was eventually six out of the seven complied. In reality five complied but because one was relying on the other for its services, they ended up with six complying and thousands of websites were removed either from search results or a bunch of comments from a political from a newspaper were removed without anyone actually knowing about it without anyone finding out about it. And this shows the fact that there is no transparency at all in this process. There was no visibility about what was and was not removed. There was no visibility in terms of process, in terms of you know due process and principles of natural justice. There was no chance given to those whose content was removed to be able to say this is actually a perfectly legal statement that I've made and not just legal it's perfectly sensible statement and why are you considering this offensive? Right? The no no person ever wrote back to CIS to ask these questions. Okay the the and most of the intermediaries didn't raise these questions either. They removed it. Some cases they removed it after telling us that they wouldn't remove it which is interesting and obviously this is resulting in over censorship stuff that is perfectly legal and not just perfectly legal but perfectly acceptable in society was also removed from the internet on the basis of our complaints and there were no records of this whatsoever. Nobody ever found out about it. If we hadn't told the world in a report that we wrote that this has happened that we were able to get all of this removed nobody would have found out. Contrast this with the system of of of state direct state regulation right where this is much more obvious there are court records it's published in the newspapers you find out about it you can challenge it but this you can't challenge just because you don't know. There are other examples state aided private regulation so one easy example of this is copyright right which has copyright enforcement needs the same infrastructure as that of censorship their state independent private regulation which you know has different jurisprudential justifications so one of them is the idea of contracts that you know this is a service we're offering if you don't want the service don't accept the terms of service you know use one of the thousands of alternative services that exist the other is the idea of property rights so think about a restaurant right you can't just go into a restaurant and hold a rally for whatever political cause you believe in because that's private property and the likes of Facebook employ a similar justification for why they should be allowed to put whatever kinds of rules they want for their space except that that's not necessarily the rhetoric they use the rhetoric they use is that of innovation that of freedom of autonomy and all of this rhetoric allows for the existence of an infrastructure of private control and so when we think about intermediary liability we have to think much more deeply about what exactly we're protecting intermediaries from and now we're living in a world where it's difficult to say what's private and what's state it really is I often don't know so municipal Wi-Fi's there's a recent paper that will be coming out that I read a draft of fair the author talks about how municipal Wi-Fi's in the US have terms of service that you know the government can't really put in place but when you when he has a legal scholar delves into it it's actually a difficult decision to say whether this the municipality can do this or not because it's of course it's a public-private partnership and and the infrastructure is created out that Facebook Facebook is larger than many states Facebook is almost as large as India and yet Facebook does not have to abide by any of the laws that the Indian government has to Facebook does not have to abide by the Universal Declaration of Human Rights which applies to states and whatever however we conceptualize it I disagree with and quite respectfully with Frank LaRue who's the the UN special rapporteur on freedom of expression who's written whose done some fantastic fantastic reports for the UN on this on free speech issues and but one thing where I disagree with them is he likens the internet to La Plaza Pública a public square I don't think the internet is at all like a public square perhaps it should be but it isn't it is more like shopping malls and we have to be cognizant of that fact if you are to change it if you are to to effectively challenge it and we also have to be cognizant of fact that not all speech regulation is harmful that there are many kinds of speech that society should try and curb should try and minimize and we have to be cognizant of the fact that not all private censorship is bad either if I'm running if I'm running a service for a few of my friends or if I'm running a blog and I don't want pictures of cats and dolls and dogs or if I don't want you know things that otherwise would be legal okay I should be free to actually state that I don't want it and delete any comments that violate my policy so not all private censorship is bad and not all private entities need to follow all the rules and have all the responsibilities of a state and so this becomes a very complicated question in essence right and and so and I think the question of how do we have we unpack this world of both state and private of state like private regulation regulation of speech is a very complicated one and that's the same kind of complication where we have to delve into that when we think about invisible censorship they're intricate they're intrinsically linked and there are no easy answers but in the immediate one thing we can do is make things visible through greater transparency one thing we can do is to increase the memory of the internet as it were that the way that the wayback machine for instance does or for increasing transparency the way that the chilling effects clearing house does and Google actually in some of this does a good job to whenever there's a video removed from YouTube you know of the fact that it was there at one point of time it never just disappears right you're told that it was removed and in most cases you were even told why it was removed that might not necessarily help it might be a wrong reason but you're given that information and that I think is very important similarly when Google removes something from its search results it says something that would have otherwise shown up for this search criteria is now not showing up that's really important and that I think is the beginning of this fight to make invisible censorship visible thank you very much so we have a few minutes for questions are there any questions so actually if you say that some some censorship might be helpful to because it is desirable in a society because there is something said that the people won't like if you say hate speech but whatever that would be I like to challenge you that because I think that if you think of a grown-up society I society can always say okay no we don't want that somebody says something and he can be challenged and so I don't think that we should then trust private companies to do this job for us and especially if we see that these companies are often from completely different cultural contexts so if we have the American companies how can we trust them to to regulate speech in Europe or even in Asia where they're even less familiar with with traditions yeah so I'm like very maximalist maybe on not removing that last part and you're very I'm very extremist and not putting stuff down because I I think we should trust society and we should trust debates on this and I think this is also the best way to to increase transparency about societal issues I agree I don't necessarily agree that more speech is always the right answer to speech you don't you find offensive sometimes that that doesn't work speech can be harmful and you don't necessarily have a way of countering it that more speech defamation is and there's some studies done around false headlines and false news articles information being carried on them and how corrections don't really help solve the problem how retractions later don't really help solve the problem etc but that issue apart I largely agree with you that and when I was talking about censorship that some censorship might actually be desirable I wasn't necessarily thinking in terms of private infrastructures of censorship but societal censorship that you if you find some speech you know objectionable I think you should actually take out a march in in the middle of you know your public square about it you should challenge ideas in a in a vibrant democratic society so yeah I think we're in agreement any other questions yeah hi Pranish thanks for your talk I like it a lot I have a question on one other part of the invisible censorship which was also the self-censorship that you mentioned right I mean in that case basically do you have any ideas on how to record that because I mean how do we call something that in your hat you put it away yeah I think one cause for self-censorship is surveillance is more surveillance right and and that's something we we do need to attack if you're to attack this idea of self-censorship one cause of self-censorship is is when there is excessive societal or legal censorship and and the chilling effect that that causes so even if there might not be a law against what you want to see you feel that what you're about to see might violate something okay even when that isn't necessarily true that is also a cause of self-censorship and so the only solution to that is a more open and free society so that might sound like a glib response but but I I don't see any other way of actually targeting self-censorship so hi my name is and I appreciate your you talk too much and a few weeks ago that there was a lot of fuss about the TTIP treaty but we in North America and Europe and during that time there was a political initiative here that also rallied in Facebook and I tried to invite a number of my friends in my Facebook address book I tried to invite them to that Facebook event and I got very obscure Facebook error messages that said I'm sorry because of your behavior in the past we cannot allow you to invite people to this event and I tried to complain to Facebook and it was very like the black hole it was like Franz Kafka to the Germans and amongst us you know and do you have a do you have similar experiences you have an opinion on that I'd be very interested thank you I think that's a that's a very interesting question there are I think quite literally thousands of examples one could one could pick up off these kinds of of censorship really because it does affect your right of association right and you can come up I think there are actually existing thousands of such examples but how do we counter this I that becomes a tough part one of the things we do need is to not be dependent on centralized services like Facebook not give too much power to these centralized corporations to use more federated technologies one thing we I think that is part of the answer part of the answer is lies in all of these things change you have to change our thinking about corporations in a world where they span across multiple jurisdictions in a world where they're mostly dealing with intangibles like our our data and our private information in a world where they're dealing with things like intellectual property etc I think we need to change many of our thoughts about corporations and we also need to encourage what a legal scholar in the US calls the safety laboratories of the internet the fact that all of these different platforms have different kinds of systems for dealing with different kinds of services and between similar platforms also there might be different terms of service and different ways that they operate and and I think we need to encourage that so that you actually have a meaningful choice between multiple services so that you actually can say Facebook is really restrictive it doesn't allow for for meaningful political speech right now its search algorithm for Facebook has changed make making commercial organizations show up before non-commercial organizations etc etc so you need to have a meaningful alternative sometimes there there isn't one in which case we need to think about how we regulate it maybe a little bit more like a state but otherwise we need to create these alternatives and and sustain them so thank you very much applause time is over thank you so just a short technical break and then we're moving to Venezuela
between offline and online censorship. For should apply both offline and online. There was a a voice since the late 90s on the Internet. I in e-book without a court order either. Yet there traditional and digital censorship as well as the shift between what I think of as visible and are true. But at the same time you always fight forms of censorship which were primarily either invisible censorship. So state-compelled private intermediaries guidelines rules that were passed want to see the differences between these between from a political from a newspaper were removed of them is the idea of contracts that you know not all speech regulation is harmful that there against what you want to see you feel that what examples but how do we counter this I that