I’m reading a fascinating article by Seth Kreimer ‘Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link’. He draws an interesting parallel between what he calls online ‘proxy censors’ and McCarthy era practices. In the McCarthy era, the Government indirectly censored by publishing information such as blacklists of those whose activities were deemed disloyal or subversive, and the private sector would then act on this information sanctioning those who might be otherwise beyond the reach of the Government. He argues that such practices can be seen online today in three key areas: copyright infringement, the War on Terror, and collaborative authorship. He argues we should draw on Supreme Court jurisprudence from the 1950s and 1960s, which in response to McCarthyism developed a series of doctrinal safeguards against indirect abuses of First Amendment rights. He comments:
“These efforts at censorship by proxy and indirect sanctions generated what are now generally recognized as pathologies. Since indirect sanctions could be imposed without either due process or public oversight, the actual targets of the sanctions were often innocent of the offenses for which they were singled out, and the “offenses” themselves were often actions that were constitutionally protected. Even where the targets were “guilty”, others who engaged in innocent activities were induced to avoid perfectly legitimate undertakings for fear of becoming the focus of zealous private retaliation. Third parties tried to insulate themselves by cutting off contact with those who might bring down wrath. And the spread of private sanctions set a tone in society that legitimate formal efforts at repression, which in turn generated still greater private efforts. The attentive reader will note that these dynamics track the concerns articulated earlier about the potential pathologies of proxy censorship on the Internet: private enforcement tended to be overzealous, inaccurate, heedless of constitutional distinctions, and vulnerable to strategic abuse.” (46)
The concern is even further removed. It is not only the enlisting of intermediaries by governments for indirect censorship. This is indeed a cause for great concern and this article is an excellent and thorough discussion of the issue. Under his analysis, the activities of bodies such as the Internet Watch Foundation deserve greater scrutiny. But it is also when a government leaves it to industry to entirely self-regulate that creates human rights implications. This too might be a way to enlist proxies to censor, but either way, businesses are left with the difficult task of grappling with the nature of their responsibilities when their business activities impact human rights.