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Sun 29 March 2020
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John Lubbock argues that the UK Government can’t help trying to end anonymity and invade privacy. So how will OfCom regulate social media?

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“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather” John Perry Barlow in a ‘Declaration of the Independence of Cyberspace’ (1996)

Barlow, a songwriter for the Grateful Dead and a founder of the Electronic Frontier Foundation (EFF), was somewhat off the mark with his prediction that the internet was not amenable to the laws of governments. Although privacy and anonymity remain key to the way people interact on many websites, politicians of all kinds still regularly demand that we ‘end anonymity online’.

For the past decade, the Government has been looking for ways to compromise privacy and anonymity so that it knows who is saying what online. David Cameron even proposed banning WhatsApp. The latest attempt to do this comes with the recent publication of the Government’s Online Harms White Paper (OHWP).

The 2016 Investigatory Powers Act codified and made legal much of the surveillance of British citizens which the Government was already conducting, and which was revealed in documents leaked by Edward Snowden in 2013. What was also revealed was that the volume of digital data produced was too large for the UK security services to capture or analyse, and that they were looking to deputise internet service providers to do a lot of it for them. 

The Digital Economy Act followed this up by attempting to make people prove that they were over 18 in order to access pornography. This part of the wider Act was never implemented, maybe because the various proposed methods for verifying ID were so problematic. Companies which had bid for the contract to provide Age Verification (AV) software sued for damages after the plan was shelved. 

Campaigners such as Nola Leach, the CEO of children’s charity CARE, have said that “action must be taken” to stop kids being able to access porn. But what they can’t answer is how to do what they demand without causing other harms. Luckily for campaigners, AV is due to make a comeback with the publication of the Online Harms White Paper.

Where the Digital Economy Act tried to deputise the British Board of Film Classification to regulate pornography by forcing internet service providers to block websites that don’t implement AV, the White Paper will do something similar, giving the communications regulator, Ofcom, the power to fine websites which do not remove harmful content quickly enough. This will almost certainly not apply to Facebook, not only because its internal systems for regulating content posted by its users are already quite sophisticated, but because Facebook is based in Ireland for tax purposes, meaning that Ofcom would not have the power to impose a fine anyway. Platforms based in the UK which would be covered include Snapchat, TikTok and Twitch.

The White Paper describes its contents as “ambitious plans for a new system of accountability and oversight for tech companies, moving far beyond self-regulation”. This seems dubious, given that Ofcom has less than a dozen staff working on internet regulation.

The White Paper also resurrects AV, stating that the British Board of Film Classification will be able to block websites “to address non-compliance when the requirements for age verification on online pornography sites come into force”. The White Paper doesn’t say what AV method will be used, and it is likely that the definition of ‘extreme pornography’ that the Government uses continues to be the one which listed spanking, face-sitting and female ejaculation as extreme acts worthy of censorship. Smaller porn producers such as Pandora Blake previously took the Government to court over these rules and won

There seems to be a double-standard here: the Conservatives ditched plans for an independent press regulator recommended by the Leveson Inquiry, yet are appointing two bodies to regulate different parts of the internet. The legislation also covers similar ground to that of the EU’s Audio Visual Services Media Directive legislation, which the Government ran a consultation on last year. The AVSMD seeks to regulate Video Sharing Platforms (VSPs), and the Government’s consultation paper outlined its “intention to implement the majority of VSP requirements through the regulatory framework proposed in the Online Harms White Paper”.

The White Paper may be intended to take credit for what is largely just the implementation of EU legislation while obscuring the embarrassing fact of having to implement EU laws after Brexit.

Viable regulations could make a positive difference, including the Organisation for Economic Co-operation and Development’s efforts to create fair global tax rules, which Facebook boss Mark Zuckerberg welcomed in an op-ed for the Financial Times. But ending anonymity or breaking the encryption which enables it won’t fix the things that are wrong with online discourse and could simply create massive security vulnerabilities which are exploitable not only by Government security agencies but organised criminals and other hackers. 

Imagine mandatory ID verification for Facebook. Besides the costs involved, this would prohibit most refugees and stateless people from using the service and potentially put gay and trans people at risk.

When I worked for the Bahrain Centre for Human Rights during the uprisings of 2011, we documented the Bahraini dictatorship’s use of Facebook to identify participants in protests who were then arrested and tortured. Creating a database linking online accounts to IDs could enable state repression and surveillance. Yet this is exactly what the Government wants to do for pornography.

During the committee stage of the Digital Economy Bill in 2016, former Conservative MP Claire Perry said: “We do not want the perfect to be the enemy of the good”. This naive statement recognises that any AV system is full of holes, easily evaded and potentially vulnerable to exploitation, but tosses these concerns out of the window because they might be worth it to stop some children looking at pornography. Heaven forbid we actually give kids useful sex education instead of just censoring the internet. 

The reactions of child protection campaigners or the Shadow Home Secretary Diane Abbott, who receives so much abuse online, are understandable. However, ending anonymity online is both technically difficult and ridden with potential pitfalls. Those who demand that we must do something to regulate the internet need to have a good answer for the question: do what exactly and how?

It is difficult to get a sense of perspective on the internet sometimes. It’s only been three decades since Sir Tim Berners-Lee invented the protocols that made the web possible and it has changed considerably in the past decade, as billions of people came online and changed the digital discourse. Facebook, in particular, is easy to criticise, but it is putting considerable resources into digital harm reduction, and we shouldn’t rush governments into making bad laws about how digital platforms operate which could compromise privacy rights or the technical encryption standards that make anonymity possible.

John Lubbock was, until recently, communications co-ordinator for Wikimedia UK.


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