Intellect or Insanity, Jonathan Klinger's Blog

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Israel is to attempt, again, to pass a bill that authorizes police officers to issue warrants to Internet service providers to block or restrict access to specific websites involved either in gambling, child pornography or copyright infringement. The bill itself proposes that such administrative procedures shall be clandestine and that court decisions shall be made ex-parte, where some of the court’s ruling will not be even disclosed to the owner of the website, and the court may hear and use inadmissible evidence.

In my opinion, one of the saddest things in a democracy is that powers with authority can change the rules after the game commenced. This is story with blocking of gambling sites, an experiment which began around 2010.

Fortunately, after a lot of hard work by the Israeli Internet Society, The District Court of Tel-Aviv quashed the block and ruled that the police had no authority to order Internet service providers to block access to certain sites or IP addresses (decision now on appeal, see the Hebrew original ruling at AA 45606-10-10 ISOC N. Shachar Ayalon).

However, Israel is famous for presenting bills that bypass constitutional rulings, and now wants to reassert this authority, without limitation, by presenting a new bill: The Bill for Restricting Uses for Preventing Crimes (Amendment – Restriction of Access to a Website and various revisions),2012 , (Google Translation).

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You can read a bit more about the bill at Oded Yaron’s article at Haaretz.com (behind a paywall). In general, the bill’s purpose is to circumvent the relevant court ruling and allow the police to block websites. In the district court ruling, the police’s authority to shut down gambling houses cannot apply to websites. However, the bill’s current wishes seem to be broader:

Had a certified police officer reasonable grounds for suspecting that the website is used to commit an offense specified in the Second Schedule [gambling, child pornography or copyright infringement - jk], and that there are reasonable grounds for concern that the website will continue to be used for committing a crime unless access is restricted, he may issue a warrant for Internet Service Providers to limit the access to that Web site; a warrant under this section may be issued even if the website also contains activity which is considered legal [or legitimate - jk] provided that the illegitimate activity is the main purpose of the website.

Now, as befits any modern legislation, justice it made but us not seen. Article 3 of the bill discusses execution of additional warrants, where everything shall be made ex-parte:

“material relating to the request to extend the validity of an administrative restriction or information based on which such request and any other material provided subject of the application process will be made to the judge only; material will be marked and returned to the police officer or authorized claimant (in this section the applicant) after examining “

But it’s not just that material will be ex-parte; in some cases, the ruling itself may be withheld from the appellant. “The court shall notify the owner or occupier and the police officer on its decisionunder this section, and it may determine that the decision, or parts of it, shall be confidential“.

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This means Israeli that citizens may find themselves in a situation where they are subject to a warrant which is confidential. In such case, They will not be able to challenge such an order, because the grounds for the decision will unlisted . Sounds interesting? Well, I remind you that when we discussed that Communication Metadata Law, which allows police to receive GPS data on phone and Internet subscribers and records of their phone calls, everything was made in confidential decisions (with no further judicial review on them). Therefore, do not know how the law is implemented, how these requests really served illegally, and how judicial review works.

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The bill itself is absurd if you understand the Internet: everybody knows that no matter what order blocking a given Web site, its validity is about as much as an order of Police fires in summer temperature does not exceed 25 degrees Celsius (or if you’re in the US, that it won’t snow on Christmas). I mean, okay, ISPs will restrict users from browsing, but that’s not actually something that works (proxy servers et all).

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But of course there’s the issue of the slippery slope. The original act, which is to be amended by the bill, gave a judge the authority to issue a warrant under careful review; however, the bill conveys this authority to a police officers.

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What about additional uses? Well, in order to pass the bill, the police began with abhorrent offenses considered: child pornography and gambling. Clearly, no one will oppose the authority to block such websites if he’s not a pedophile or a gambler. Well, not really. That’s why the phrase “Second Schedule” is used to described to offenses that are subject to this authority, in fact the bill asserts a short list of offenses, where the minister of justice can always add additional offenses. Once the bill is passed, no one can be certain that no additional offenses will enter there.

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The real danger here is practice: in the same week where we discovered that the military police apparently investigated a blogger which was exposed using the metadata act without respecting his journalistic immunity and confidentiality of sources, and on the same week as the non-democratic nations want to rule the internet through the ITU convention, Israel decides to publish this bill. And why? because Israel deems it ok to gamble all your money is the state lottery, but not right when you give money to foreign websites.

The research we conducted with Ynet News in regards to p2p throttling and DPI in Israel, which was (even after reading the criticism) most likely the most comprehensive in Israel, even though it needed more research. One of the results was a Parliamentary hearing by Meir Sheetrit, the chair of the Science & Technology Committee. The real question is what to do with it.

Daniel, one of the commentators in the Hebrew blog, claimed that a class action lawsuit could not be substantiated on contractual grounds. I disagree, but in spite of many calls and mails I received to launch a class-action, I’m not sure it’s the right thing to do. A class action may be filed according to the consumer protection act or based on other obligation. Allegedly, the ISPs obligation to net neutrality in their license (and see clause 5.4.1 to the general ISP license) and their obligations according to clause 29 to the Telecommunication Act are sufficient cause. The problem? The Class Action Act requires monetary damages, and there is more than one problem to prove it.

And what are things all about? If the cause of class action lawsuits is not to enrich the attorneys and plaintiff but to bring restitutional justice, then it will not be made; in the best case, a settlement would be made where the attorneys will receive 500K ILS and the plaintiff 1M ILS, where all the related clients will receive 10% bandwidth upgrades for a few months. Apart from that, even if different damages were made to different potential plaintiffs, there’s still place for class action lawsuits (OCR 31032/06 Shalom & Malka Fabrics v. Tel-Aviv). But what was the damage?

Many comments were written in wrath and required justice and a lawsuit. The problem, none of the commentators had any monetary damage. Is blocking a p2p download cause-worthy? Could those people come to the court in clean hands and explain to the judge what are the files they downloaded? Most likely, some lawyers’ will to be first just went up to their heads.

Of course, one should understand the difference between illegal file sharing and other interference that may occur in prioritizing VOIP traffic or blocking other services.

The people with the most to gain from this research, most likely, may be the Copyright Organizations. If we recap the discussions on the Electronic Commerce Bill around a year and a half ago, where the idea was that An ISP shall not be liable to acts committed by its users if it wasn’t aware of the activity and was not supposed to be aware, we understand the problem (See also Dubitsky v. Shabiro and MGM v. Grokster). Actually, ALIS, the Israeli equivalent of the MPAA could request the ISPs for damages, as they interfered with traffic and blocked. De-facto, this claim would not be far from the required legal conclusion: if the ISPs did not interfere with traffic, they were better of in regards to liability.

Therefore, if someone should sue the ISPs to bring restitutional justice, it should be the Copyright Holders. If they were actually harmed by file sharing (and I doubt they were), let them sue the ISPs and make them pay, understand and acknowledge that by blocking they inflicted liability on themselves. That way, and only that way, they’ll learn.

[Posted in Hebrew]