Privatised Enforcement: A threat to our civil liberties online

How do we ensure the protection of civil liberties online? This is a question almost as old as the internet itself, particularly as rapid advances in technology have left society with legal frameworks that are at times outdated and inappropriate for managing the challenges facing digital rights today.

This is no reason to believe that internationally established human rights, constitutions, and bill of rights don’t apply online. Governments have a duty to protect our rights, online and off. However, the online space is, for the most part, owned and operated by companies. This complicates matters slightly: Unlike governments, companies don’t have a legal obligation to protect human rights. And even if they want to, they’re often placed in compromising positions by powerful political actors.

Increasingly, governments are pushing companies to make decisions that impact freedom of expression online. Their reasons are many: the protection of children, the prevention of terrorism, the regulation of hate speech, the enforcement of copyright, or the preservation of cultural values. But any decision about speech has clear implications for civil liberties. I talked a little bit about this topic recently, at a founding event for the European Pirate Party (#PPEU) on Friday, March 21st in Brussels (my intervention can be found here).

What are some examples of privatised enforcement?


So-called “voluntary agreements” — where companies agree to police content, processes, and users, without legal agreement or oversight — are increasingly common, especially in situations where if this kind of censorship were done by a government, it would be illegal. Domain name registrars and registries, search engines, hosting companies, and advertising services are all facing pressures to play police, judge, jury, and executioner over online content.

In 2011, the proposed Stop Online Piracy Act (SOPA) legislation had a complete list (Section 104) of types of services that would be granted full immunity to police copyright. Luckily, SOPA, along with the pluri-lateral Anti-Counterfeiting Agreement (ACTA), both failed to pass. But while these bills are dead, the intentions behind them aren’t.

We saw this for a handful of VPN networks in Sweden last summer (including iPredator, an anonymisation service launched by Pirate Bay co-founder Peter Sunde), when they found their payment services blocked by Paypal without receiving notice or the opportunity to appeal.

How is this possible? Paypal is a member of a voluntary agreement to protect Intellectual Property, forged in 2011 by the White House’s former IP czar, Victoria Espinel. The agreement includes all major payment providers, including American Express, Discover, MasterCard, PayPal, and Visa. Espinel has wholeheartedly embraced this approach and “encouraged the private sector to do more on a voluntary basis”.

This has left iPredator with very few options of payment providers apart from Bitcoin, and the company has considered legal action to get their services unblocked.

But this isn’t just about payment providers, or anonymization services. This is about platforms and services everyone uses, every day. In almost all cases, takedowns, blocking, and other actions are not even based on legal decisions. They’re based on accusations, insinuations, and inferences. These practices have a clear impact on our civil liberties and human rights online.

So what do we do?


At the moment there isn’t sufficient discourse on the role companies play in being the gatekeepers of online speech. We urgently need constructive public discussion and reflection on these practices in order to stop the erosion of civil liberties and the rule of law online.

In democratic societies, any restriction of our rights must be foreseen by law. If we are to maintain our civil liberties in the digital age,  we need to make sure that policies and laws that impact our rights are transparent, that those making decisions can be held accountable for their actions, and that due process, and the presumption of innocence remain key pillars of our societies.

As people increasingly rely upon online services for information, it is critical that companies of all shapes and sizes, but particularly those with the global reach, resist voluntary arrangements. They must uphold the rule of law and their duty to respect internationally established human rights, such as freedom of expression and access to information.

There is a clear need to address these issues head on, and work with companies to come up with policies to defend against this type of government coercion. Such a strategy would reaffirm the neutrality of the platforms and services we use every day, to ensure that the rights we have fought for offline are equally applicable in the online environment.

Find the link to my intervention here.