Out-Law newsletter says IWF "was wrong to lift its ban on a Wikipedia page"

[Ian Batten]

On 10 Jan 2009, at 20:33, Florian Weimer wrote:
>
>> (1) If an ISP transmits material provided by another, they are not
>> liable for the contents of that transmission - e.g. if they could be
>> sued for "publication" or prosecuted for "possession", they have an
>> absolute defence. This is not subject to a test of knowledge.
>
> Hopefully, they still can become an accessory to the crime.
> Otherwise, you've got a major loophole.

Do you really believe that if I phone up my criminal confederate and  
discuss our criminal enterprise, the phone company should be dragged  
in as an accessory?   Why should it be any different for email?   
Instant messaging?  Sticking my cunning scheme on my blog and having  
it read by my confederate?

>
>
>> (2) If an ISP hosts material on behalf of another, they are not  
>> liable
>> for the contents of that material *until* they are put on notice and
>> fail to expeditiously remove it or block access to it. If they  
>> continue
>> to provide access after notice, then they lose this defence but may
>> continue to have other defences (e.g. "it's not indecent").
>>
>> If DataHop don't control the machines (not the access, the machines)
>> that Wikimedia use, then (2) doesn't apply.
>
> So how do we get illegal content off the Internet if the criminals are
> service providers themselves?

It's an interesting question.  What stops me (now there's no concept  
of annex two telephony licenses, nor any `fit and proper person'  
tests) buying a few second-hand switches, renting fibre between the  
exchanges, unbundling with MPF and offering cheap calls to everyone  
else in the areas I serve?  The areas in which, by a handy  
coincidence, my criminal confederates (vide supra) are based, this  
being in fact SMERSH telco?  I'd be happy to receive --- and perhaps  
even process --- interception warrants, because I'd be glad to know  
which of my confederates were suspects and which weren't.  My intent  
wouldn't be to provide interception-free calls: why do I need that?   
My intent would be to have the telco act as a canary in a mineshaft,  
cluing me in on who was being watched...

ian