Getting it wrong

I have just read an article by T J McIntyre, a lawyer of University College Dublin. It is entitled Child Abuse Images and Cleanfeeds: Assessing Internet Blocking Systems. McIntyre sets himself the task of analysing three different approaches to dealing with online child abuse images. These are:

The IWF‘s system in the UK
The CIRCAMP Project sponsored by the EU
The hash value system used in the USA

In this blog I am going to restrict myself to commenting only on those aspects which concern the IWF and the UK. As a former Director of the IWF I feel I am reasonably familiar with its history as well as the wider framework for dealing with child abuse images in Britain. Sadly I found McIntyre’s treatment of the subject to be riddled with inaccuracies and in this blog I will try to address some of the more important ones.

I have never met McIntyre in person but in the past few years we have spoken at length over the phone on several occasions and have exchanged emails. There is no doubt this guy is super smart and his writing is a joy to read. The article I am about to criticise is no exception. Much of it is balanced and fair but there is obviously a switch of some sort in McIntyre’s brain that transmits interference when certain words or institutions hove into view. I cannot come up with any other explanation for the all too obvious lapses or deficiencies in his text.

Just the facts

Before sitting down to write this I checked each of the following statements with the IWF to confirm that my understanding and memory were correct:

There is a system in place which provides an appeals mechanism to any site or page owner who believes their materials have been incorrectly classified.
The IWF’s preferred position is for ISPs to issue a block notice explaining why a site has been barred and how to appeal against the decision should they so wish. The IWF does not favour “Error 404” messages although at least one big ISP (BT) continues to use them. It is thought the new EU Directive will outlaw the “404” approach.
The IWF’s work and systems are independently reviewed by external experts, inter alia to confirm that nothing can go on its block list or be made the subject of a take down notice unless it is an illegal child abuse image or advertises its availability.
The IWF is bound by the provisions of the Human Rights Act, 1998, s.6 (3) (b). In effect this says that when the IWF acts it acts as if it were a public body. It therefore acts in a quasi-judicial capacity and, inter alia, is bound by the rules of natural justice. Its decisions could be made the subject of judicial review. The IWF not only does not contest this point, it embraces and welcomes it.
The legal basis of the operation of the IWF is clear and unambiguous. It is set out in a Memorandum of Understanding signed by the Director of Public Prosecutions and the Association of Chief Police Officers on 6^th October, 2004. There has never been a challenge to this document. On the contrary, on the countless occasions that the IWF or its work has been referenced in court during the course of prosecutions or via the witness stand not even a legal eyebrow has been raised.

The IWF does not do censorship

McIntyre cites Lillian Edwards of Sheffield University who appears to think that because the IWF is involved in making “censorship decisions” the basis of its operations should be put on a statutory footing.

First of all the IWF does not make “censorship decisions”. It takes a view, using exactly the same criteria as a police officer, a judge or a jury might, as to whether or not a particular image is illegal, or to be more precise is likely to be found to be illegal by a court. You cannot “censor” an image which ought not to be published in the first place.

I understand in roughly two out of every three instances the IWF rules that an image someone has complained of, however horrible it might be, is not illegal.

European Data Protection Supervisor misunderstands

McIntyre also quotes an extract from an opinion of Peter Hustinx, the European Data Protection Supervisor who in this context is talking about blocking. It is a shame Mr Hustinx did not trouble to understand how the British system works because, had he done, he would have exempted the UK from his otherwise absurd remarks.

The IWF does not block anything. It provides a list of urls containing illegal images to ISPs and other electronic service providers. Technically the ISPs and providers each decide for themselves whether or not to use any or all of the list.

Hustinx speaks about “blacklisting individuals”: this does not happen. Maybe it does in the field of copyright but not in the field of illegal images.

No one “monitors” internet users’ behaviour, or at least if they do it has nothing whatsoever to do with the IWF or the list it produces. Following on from an investigation that may have been prompted by information generated by the IWF list, if the police decide to act against an individual it is because they are in possession of prima facie evidence of a crime.

Hustinx speaks about a lack of legal certainty: there is complete certainty. He says the processes should be “under judicial control”. Things do not work like that in every jurisdiction though they may in many continental ones. And anyway we have the backstop of judicial review. No one has ever availed themselves of it but that’s a different point.

I would have no objection in principle to the whole of the IWF’s operations being made the subject of legislative provisions but I am 100% confident that, from a human rights perspective, if that were to happen absolutely nothing of material importance would change because everything the IWF does now is already human rights compliant. If I was Edwards et al I would be quite keen to stay away from the British Parliament. If the matter was put before them afresh I doubt they would seek to restrict, curtail or change anything that the IWF is currently involved in, but I wouldn’t bet against them being tempted to extend its powers or scope.

The nature of the challenge

If you speak to any police officer anywhere in the world who is engaged with attempting to deal with child abuse images online they more or less all say the same thing. They are completely overwhelmed. They cannot cope with the volumes of illegal still pictures and videos of child sex abuse that are now being distributed over the internet. Every day, essentially, what they do is triage. They are likely to pick the easy, urgent or very worst cases and the rest end up in that great Inbox in the sky.

Or take Operation Ore in the UK. The US authorities handed the UK police a list of the names of over 7,200 men (this is essentially a male crime although some women do get caught up in it, often as accomplices to a manipulative male partner). These were UK residents who appeared to have used their credit cards to buy child abuse images from a company in Dallas, Texas.

UK police action on those cases started in 2002 and, for all practical purposes, was spread over three years. Even so it nearly brought parts of our court and probation system to a full stop. In some areas there was a waiting list of nearly two years before computers that were seized by the police could be analysed in their forensic laboratories. Justice delayed is justice denied. And here is a crucial fact: about 3,000 of the men on the list of 7,200 were never visited by the police at all. Not even a knock on the door, much less arrested.

In the US the police action was called Operation Avalanche. Out of a total of around 300,000 names from around the world it is thought about 70,000 or thereabouts resided in the USA. US courts have laid down strict rules about the need for evidence to be “fresh” before it can be used as the basis of a request for an arrest and seizure warrant. For this reason, given how long it had taken to investigate the original charges brought against Thomas Reedy, in the end US police arrested fewer than 200 men off the list of 70,000 and most of those resulted from stings where the Dallas data had been used simply as intelligence.

In the UK we do not have such strict rules about the “freshness” of evidence but even so, after three years, I imagine the police decided they would be pushing their luck to carry on.

Analogue thinking is no good in a digital world

The internet has dramatically changed all sorts of things. The volume and complexity of the processes behind online transactions has taken us to a place we have never been in before. Analogue thinking will not work well or at all in a digital world. To stick with a mind-set of warrants, courts and judges for everything is tantamount to surrender. The challenge is to find new legal routes that are effective and, above all, transparent. In all cases the processes must be governed by the principles of natural justice and be subject to the possibility of judicial review.

If we do not find new and better ways of involving the internet industry in sorting this out, by co-opting or involving them , by making greater use of technical tools, we have to ask ourselves as a society how many more police officers, forensics staff, lawyers and judges we need to hire and how many more court rooms and prisons do we need to build? Even if it was possible to do either of those things in these straitened times, is it desirable anyway?

The example of parking tickets

The administration of parking tickets offers a useful parallel that we could all think about.

In most countries is the administration of parking tickets human rights compliant? I think so. The rules by which the tickets are issued are clear and there is an appeals process should an aggrieved party think a ticket has been issued wrongly or unjustly.

It is important that these processes are human rights compliant because awarding tickets, ultimately, could lead to the confiscation of your vehicle by the state and imprisonment if you decide not to pay the fine or are unable so to do.

The issuing of parking tickets is a serious process, but at the beginning of it, right there on the street, no lawyers or judges are in sight. The people who give out the tickets will often be working for a private company under contract to a municipality or the police.

Parking meters, traffic wardens and parking tickets were a response to the massive increase in congestion in our cities caused by the growth of the use of the motor car. Similarly the enormous growth in the volume of child abuse images now being circulated over the internet requires an equally imaginative, modern response. I see the IWF as an example of just that.

One mistake

There is no doubt that the IWF is an unusual body but it works well. However, it did make one mistake in its 16 year history. It attracted a huge amount of publicity because of the way a decision it took impacted on Wikipedia.

The mistake was swiftly acknowledged and put right. One error in 16 years is not a bad record, nevertheless procedures were revised and tightened up. But is it seriously being suggested that a Wikipedia-type situation could never have happened if, instead of the IWF, the matter was decided instead by, say, a judge in chambers or in court following representations by m’learned friends?

Or if everything had to go back to court or be put in front of a judge could a discovered mistake have been put right as quickly once the error was unmasked? I seriously doubt it. All organizations and institutions which rely on human agency are capable of making mistakes, including our highest courts. Just ask the Birmingham 6. That is not an argument against courts and lawyers, but neither is it an argument against the IWF.

Careful who you cite

McIntyre, like anyone else, is entitled to cite whomsoever he pleases to support his arguments and to ignore inconvenient opponents. But I think some thid-party authors or individuals should only be used with a health warning.

If I was writing an article about, say, corporate responsibility policies of high tech companies, when discussing Microsoft I would either not cite an article written by Bill Gates, unless I was perhaps trying to be ironic, or I would make clear to the potentially unsuspecting reader that the possibility of bias cannot be ruled out.

Which brings me in particular to Duncan Campbell whom McIntyre cites uncritically and without reservation as authority for the following extraordinary proposition:

As these cases proceeded, however, it became clear that many of those individuals had not paid for child pornography …….. .

McIntyre’s orientation starts to reveal itself in the language he uses here and elsewhere. Nothing of the kind “became clear” and define “many”?

There’s more. Relying on a newspaper report of 3^rd July, 2005 penned by one David Leppard, we are told, again seemingly with complete certainty, that some people had committed suicide following “wrongful accusations” being made against them of possessing child abuse images.

On what basis is that claim made? I never saw any accounts of suicide notes in which “wrongful accusations” were given as the reason for the unfortunate person’s self-inflicted death. Who can know if the accusations were “wrongful?” They never went to trial. And note or no note who can really know what is going on in the mind of someone driven to such desperation that they choose suicide? Moreover isn’t there something a little unseemly about seeking to co-opt suicide victims to a campaign of this nature?

If you actually trouble to read Leppard’s article it centres on a series of statements made by one man: Jim Bates. He seems to have been the inspiration for the headline

Child porn suspects set to be cleared in evidence “shambles”

Guess what? They weren’t cleared and I will not detain you further by discussing the credibility of Mr Bates.

Despite all that there is definitely an issue here

Having said all that I accept that even one wrongful conviction or wrongful accusation of involvement with child abuse images is one too many. And neither am I trying to argue that no mistakes were made in Ore. It would be astonishing if there weren’t given that UK policing had never had to deal with anything like it before, or since. So McIntyre does touch on a genuine dilemma, even if a little clumsily and tendentiously.

To be arrested on a charge of possessing or making child abuse images can have catastrophic consequences for the individual concerned. There is no doubt about that. Even though arrest is not classed as a sanction that is a fiction. Instantly you are stigmatised and you may never recover from it whatever eventually happens, whether you are finally charged or not, whether you are convicted or not. I imagine the same is true with other classes of crime e.g. murder and rape. The notion of no smoke without fire seems deeply embedded in our psyche. For this reason my understanding is that the police set the bar at a very high level before they arrest anyone for crimes of this type.

But what are the police to do? If we could be sure they only ever arrested the guilty we would hardly need courts and trials other than for sentencing.

We should try to map out the common ground

The free speech and civil rights communities the world over ought to be allies of the child protection lobby in the fight to keep the internet free and safe for the democratic engagement of everyone, as well as all the fun stuff. They share my abhorrence of child abuse images on the internet and every bit as strongly. I hope they agree with me that for as long as this problem stays in the box marked “unsolved and on-going” it will very likely provide cover for some nasty regimes to slip things in under the radar that they shouldn’t. That is an excellent reason for us all to redouble our efforts to find a way to close the “unsolved and on-going box”. It is not a reason for sticking our heads in the sand and hoping it will go away of its own accord because it won’t.

Sometimes in the language and the tactics they use the free speech and civil rights guys end up getting involved in the wrong fight and create a most unfortunate impression about their priorities. The arrival of the internet as a mass consumer product represents a paradigm shift in terms of challenges to governments and law enforcement, as it does to the societies they serve and reflect. We all need to find a way to lower our flags and come up with solutions we can all live with.