Internet Filtering : Rhetoric, Legitimacy, Accountability and Responsibility

This paper argues that the automatic and opaque nature of internet filtering, together with the fact that it is generally implemented by intermediaries, raises new problems for the law and in particular may tend to undermine aspects of freedom of expression. The paper starts by challenging the rhetoric underlying the use of the term “filtering” and suggests that the use of other terms such as "blocking" or "censorware" may be more appropriate. It then considers where filtering fits into the modalities of governance and the resulting issues of legitimacy and accountability. As regards legitimacy it argues that the use of technology to exert control over internet speech frequently undermines aspects of the rule of law concerning both the process for and content of norms governing behaviour. In relation to accountability, the paper argues that where it is not clear what is being blocked, why, or by whom, the operation of mechanisms of accountability - whether by way of judicial review, media scrutiny, or otherwise - is greatly reduced. Finally the paper suggests that, as compared with control through legal instruments, filtering may rob users of moral agency or responsibility in their use of the internet, with the implication that they may freely do whatever it is technically possible to do, with no necessity of moral engagement in their activities