GERMAN FEDERAL PROSECUTOR BLOCKED DUTCH
In September, the German Federal Office of Prosecution (Bundesanwaltschaft) summoned a number of German Internet providers to block access to a Web site run by the Dutch Internet server XS4ALL (Access for all), because XS4ALL made the newest issue of the German left-wing paper Radikal accessible to Internet users. According to the Prosecutor General, an article in the paper contains instructions for sabotage.
The Federal Prosecutor General is currently investigating Radikal for presumed terrorist activities and the "promotion" of terrorism. In the Netherlands, however, Radikal is not illegal.
The Prosecutor general’s summon to the German Internet providers was not based on the order of a court and according to an official German legal report, German Internet providers cannot be held responsible for the content of material they make accessible on other systems via Internet. Therefore, according to prevailing interpretation of German law, the Dutch authorities alone would have the right to take legal action against materials stored on XS4ALL, if and only if these are an infringement of Dutch law.
Intimidated Internet providers
Nonetheless, a number of German service providers, quickly obeyed the Prosecutor General’s order, apparently out of fear of being investigated in their turn. They blocked their customers’ access not just to the Radikal home page, but to XS4ALL as a whole. The measure prevented XS4ALL customers from communicating with German Internet users, since E-mail is not passed through a number of German Internet routers. XS4ALL customers were also prevented from accessing German web sites.
The German censorship caused serious economic damage to XS4ALL, with some customers terminating their account at the Dutch provider.
Outrageous act of censorship
XS4ALL calls it an outrage that 3100 customers with home pages on its web site were blocked by a measure actually aimed at one single home page. XS4ALL claims that both the German prosecution authorities and the service providers complying with the summon are violating Article 10 of the European Convention on Human Rights (freedom of expression and information).
FIfF, a German organisation of computer professionals, noted in a press release that "German prosecutors together with the People’s Republic of China and Singapore find themselves on the forefront of efforts to get the Internet under control".
XS4ALL, though it has expressed willingness to assist Dutch police in identifying on-line criminals abusing the system, has a policy against censoring clients. Mirroring this position, at least one German Internet provider pointed out to the Prosecutor General that their compliance with the censorship request may cause them to violate contracts with their own German users, and that the government’s liability threats are tantamount to holding a phone company liable for what users say on the telephone.
XS4ALL manager under threat of arrest in Germany?
XS4ALL manager Rodriguez says he received warnings that the German authorities could seek his arrest on "promotion of terrorism" charges and that he was tempted to disconnect the Radikal pages from XS4ALL because of this intense intimidation. "But if XS4ALL bent to this kind of intimidation, we would create a precedent", Rodriguez argues. "The Germans might see it as a `reward’ for their acts. They would be stimulated to continue on this road, and might become an example for other countries. Imagine if every country had these standards. Any country could order their own Internet service providers to block a foreign site. Imagine the authorities of those countries having the powers to prosecute [the representatives of] foreign Internet providers, when they visit their country, or when they are extradited. These acts of aggression against Internet providers and users would profoundly change the Internet if they were tolerated".
Although the spreading of Radikal via Internet is not punishable in the Netherlands, Rodriguez’ concerns are not as far fetched as might appear at first sight. As a matter of fact, the German authorities argue that all providers who contribute spreading the banned issue of the paper should be prosecuted for "promotion of terrorism" according to German criminal law. In Germany, even subscribers to Radikal have been violently arrested in the past.
A "terrorist association" under the EU Convention on Extradition?
Recently, the EU Ministers of Justice and Home Affairs signed the EU Convention on Extradition (see article in this issue and No. 45, "'Flexible' EU Convention on Extradition"). Under the Convention (which, however, is not yet in force), member states bind themselves to extradite persons not punishable under their national law, if the crime for which extradition is requested by another member state is a "conspiracy" or a "criminal association" aiming at committing terrorist crimes. Since the German prosecution authorities regard the incriminated Radikal article as an incitement to commit terrorist crimes, anybody spreading it could theoretically be considered a member of a terrorist "conspiracy" or "criminal association", according to the fuzzy definition of the Convention.
Hard to control the Internet
So far, the German war on the Internet community has proven to be a spectacular flop, at least as far as its declared purpose - removing Radikal from the Internet - is concerned. In fact, the spectacular action of the Prosecutor General represented an unhoped-for public relations boost for the tiny and usually unnoticed "anarchist" rag. In protest against "German censorship" of the Internet and in solidarity with XS4ALL, more than 20 service providers outside Germany "mirrored" the offending Radikal home page on their web sites and thereby effectively broke the German "electronic blockade". The prediction of XS4ALL manager Rodriguez in a message to German Internet providers was fulfilled: "Realise that a lot of Internet users consider it a sport to redistribute censored information. The way to write a best-seller on the Net is to have it censored by some government".
The successful counter-attack vigorously demonstrated the growing strength of the international Internet community and the difficulties governments are facing in attempting to gain control of this new means of global communication. With their Quixotic campaign against the windmills - i.e. the supposed international Internet terrorists, the German authorities drew world-wide mockery.
XS4ALL considers complaint against Germany
In the meantime, the German Internet providers have all quietly reopened access to XS4ALL, arguing that the blockage operation was technically ineffective and counter-productive. Moreover, they are demanding that a court check the lawfulness of the Prosecutor General’s summon.
In the Netherlands, XS4ALL is considering filing a complaint against Germany for violation of article 10 of the European Convention on Human Rights. XS4ALL regards the case as a precedent. "What happens if Germany demands to block AOL, EFF, Compuserve, Prodigy, the Well, Netcom and Demon Internet next week?", wonders XS4ALL’s manager Rodriguez. A Dutch Member of the European Parliament, Elly Plooij has addressed the European Commission. Among other things, the MEP wishes to know whether the Commission regards the German blocking of access to "the services of Dutch industry" as a violation of the free-trade agreements in the European internal market.
Yet the German Federal Office of Prosecution still seems to believe that, in spite of a lost battle, the war can still be won. While keeping a low profile in an obvious attempt to prevent further publicity, it has not dropped the criminal investigation against the German service providers, which it had actually initiated in spite of their quick compliance with the summons.
German EU-Commissioner advocates speedy measures against the "abuse of Internet"
At the same time, Hans-Martin Bangemann, the German EU-Commissioner responsible for information technologies, is calling for joint action of the Union against the "abuse of the Internet" through technical measures and international agreements. The Commissioner announced that Germany will host an international conference on the issue in 1997. Bangemann is justifying the German move with the need to fight against the spreading of "child pornography and Nazi propaganda" via the Internet.
Sources: Access for All, Amsterdam, Fax: +31/20 6274498, www.xs4all.nl; FIfF-press release: Protest against electronic censorship: www.uni-paderborn.de/arbeitsgruppen/fiff/fiff.html; Süddeutsche Zeitung, 17.10.96.