Unacceptable use

Epifora is a Montreal-based internet service provider (ISP), whose home page promises “respect for client privacy” and tolerance of “controversial speech.” The company’s clients host a number of queer websites and chatboards, some of which have been online for more than a decade and have gained loyal audiences.

On Oct 4, Epifora was notified by MCI Canada that its connection to the internet backbone would be cut off in 30 days for violating the “acceptable use policy” of Verizon–the giant US telecom that swallowed MCI in 2005. By Nov 3, Epifora’s edgy queer websites were offline. An American corporation had effectively skirted Canadian law to censor Canadian websites.

Epifora paid for a high-speed link to the internet’s backbone through MCI Canada for five years without incident. Neither Verizon, nor MCI Canada, nor any law enforcement agency ever served Epifora with a “take-down notice,” the established procedure in Canada to get an ISP to remove, pending a court hearing, a client’s possibly illegal material.

So what was the alleged violation?

“I don’t have any specifics for you,” says Verizon spokesman Peter Lucht. Nor did Verizon or MCI Canada answer Epifora’s queries. But Verizon said their determination was final and unappealable.

Within a few days of news of the impending cut-off, one website on the Epifora network about queer intergenerational relationships had raised $30,000 in pledges for a legal defence fund. It’s an amazing sum, considering its users are not especially numerous or wealthy; its demographics are slanted to tech-savvy young people just coming out.

Verizon’s concise “Acceptable Use Policy” boils down to “don’t do anything illegal,” and Epifora insists it hasn’t. For the five years MCI Canada provided Epifora’s backbone link, the company evidently agreed.

That Epifora’s clients were not breaking the rules appears to be the view of Canadian law enforcement as well.

After a July, 2001 report in National Post, MCI Canada approached the Ontario Provincial Police (OPP) for an opinion, and inspector Bob Matthews of Project P, the OPP’s Child Pornography Section, declared the material on Epifora’s servers in compliance with the Criminal Code of Canada.

That says a lot, as Canadian law sets a higher bar on obscenity and kiddie porn than the US and most other countries, making no distinction between, say, photographs of minors having sex, textual descriptions thereof, or even speech advocating such acts.

There’s no reason to think anything had changed: Epifora is a brick-and-mortar business, and authorities would’ve known where to knock. If Verizon had reason to believe any of the sites on Epifora’s network violated the law, Verizon could have served the ISP with a take-down notice.

Verizon’s cutoff of Epifora didn’t come out of the blue; it was the result of a campaign started in September by a Portland, Oregon-based outfit called Perverted Justice. Funded by NBC, the group runs private internet sex sting ops as fodder for the TV network’s eponymous reality cop show. Staffers and volunteers pose as underage teens on the net, steer conversation into sex chat, and then lure men to meeting places where police are waiting to bust them on-camera. Some critics condemn the show as an unholy marriage of cops and media. Certainly it turns destroying people’s lives into entertainment. It’s brought NBC stellar ratings and loads of money.

In mid-September, Perverted Justice launched a campaign to shut down Epifora, contending that its clients’ chatboards contained speech promoting rape, stalking and illegal porn. With Epifora evidently unfazed by controversial content, Perverted Justice targeted backbone provider Verizon, labelling it a “corporate sex offender.”

Verizon’s prompt cave-in to the pressure might seem expectable. But according to free speech advocates, it opens a new chapter in constricting online speech.

“I’m not aware of cases where backbone providers have exercised this degree of censorship,” says Lee Tien, staff attorney in San Francisco with the Electronic Frontier Foundation. “I think this is very, very dangerous to speech on the internet, and why you need some kind of legal framework to govern [backbone access].”

The companies and organizations that run the net’s major “trunk lines” usually present themselves–and in turn are treated–as “common carriers.” Certainly, no one holds the phone company responsible if, say, Arnie rings up Moe to plan a bank heist. In the internet era, common-carrier status has become especially vital, even while it has grown legally murkier. Interlocking networks open to each others’ traffic is what define the internet–literally, a network of networks. With data on the net travelling at near light-speed, distance matters little compared to bandwidth. If you’re a photon, the quickest path across Manhattan at rush hour might be by way of Singapore. A single e-mail or request for a web page gets broken into a powder of data packets, each travelling the most efficient path they can find, to be reassembled at the recipient end on-the-fly. A network doesn’t know whether a bit passing over its cables is a love letter or diagram on bomb making.

Indeed, companies such as Verizon have been quick to assert their role as serving all comers without prejudice. Otherwise, every time a teen gets busted downloading bootleg Kurt Cobain, or a broker trades insider stock tips, or a hacker spews viruses, telecom executives could face charges as co-conspirators. Indeed, telecoms have resisted filtering content, arguing that the mere attempt would wrongly imply they control what passes over their wires.

But why should one company’s decision to censor an ISP matter? Kin to the US interstate system, today’s internet is a bastard child of a 1960s-era US military project to create a communications mesh that could survive nuclear war. Even if Washington and Chicago were offline, the thinking went, data can always find a route that bypassed them.

But the highway metaphor shows the limits of the net as well as its robustness. From a bird’s-eye view, the interstate system is an interlocking web allowing infinite routings and destinations. But if you are stuck in traffic on Route 95 at the end of Labor Day weekend, the highway itself becomes an insurmountable obstacle.

“If there’s only one bridge between two points then you can’t route around it, because it’s been architected that way,” notes the Electronic Frontier Foundations’s Tien. “If that area of Montreal is only serviced by that provider, then you can’t route around it.”

And in fact, on a local level–and even a global one from some standpoints–internet infrastructure can be surprisingly centralized when judged by its narrowest expanses, in a sense, its weakest links. Countless Nigerian ex-oil ministers have no trouble finding your inbox with their urgent inquiries about Swiss bank accounts that they need you to unlock. But in fact few cables link Africa to the internet beyond.

“If I can’t do something with this ISP maybe I can with that one–there can be some competition among providers at the ISP level,” notes Tien. “But when it comes to a backbone provider, there may not be any alternative, so their power becomes determinative of what can or cannot be said. Perverted Justice, or whatever organizations that may be involved, has discovered the sensitivity of that bottleneck.”

One solution is to build more redundancy in the network. “‘Routing around censorship’ always assumed there would be alternative ways to get around a blockage,” Tien notes. “When it’s actually somebody who controls a large amount of fiber, then you have the problem that you’ll never be able to route around them.”

Sensing their indispensability and feeling they’ve missed the internet boom-train that’s riding over their rails, US telecoms right now are angling to parlay their control over the net’s physical wiring into power over its content. That’s the ongoing battle in Washington over network neutrality–with the US congress, palms greased with telecom cash, a hair’s breadth away, under pending legislation, to give the likes of Verizon the keys to the content caboose.

Network neutrality is so central to the internet that users notice the principle as frequently as fish wonder about water.

Right now if you want Google.com, your ISP–whoever it is–will take you there, with the help of whatever big telecom ultimately links them to the backbone. But if they had the legal green light, that telecom could take you, instead of to Google, to whatever search engine paid them the fattest kickbacks.

It’s a replay, on a grander and more sinister scale, of what Microsoft pulled off against Netscape in the ’90s when it tried–and for a time succeeded–in parlaying its domination in operating systems into control over web browsing.

“Usually the network-neutrality debate is couched in business terms,” notes the Electronic Frontier Foundation’s Ren Bucholz. “But the elephant in the living room is that if you can discriminate based on price, why can’t you discriminate based on anything else?”

Verizon’s cut-off of Epifora is an early warning that global telecoms are prepared to use their chokehold on the net’s infrastructure to filter out chunky political expression. What will be the limits of such censorship? If chatting about the boy beautiful besmirches Verizon’s corporate name, what does the firm gain by allowing access to sites celebrating barebacking or ball torture? The list of Americans registered as sexual predators for blowjobs at highway rest stops is a few mouse clicks away. Isn’t Verizon a “corporate sponsor of perversion and disease” for selling such people internet access in the first place?

How far would Verizon go to eliminate edgy gay content–and edgy gays–from use of its networks? “We’re not speculating about what the company might do,” says Verizon spokesman Lucht.

Epifora has a war chest big enough to start a legal battle, but probably not to carry it through to completion without outside help, with the controversial content in question possibly discouraging the usual cyberfreedom angels.

The case raises important questions: Can internet companies allege violations of “acceptable use” without saying what they are? Can they about-face and declare that legal content they willingly carried yesterday is forbidden today? Canada’s Charter of Rights and Freedoms guarantees everyone “freedom of the press and other media of communication.” Does that mean anything when a tiny handful of backbone providers refuse access? Is it for a US company to decide that speech legal in Canada can be forced off the internet?

The Epifora case could establish important new legal principles. More likely, it will be one more step in the transition of the internet from messy democratic forum into a frigid private shopping mall, ringed with surveillance cameras, with many doors marked “no entry,” free expression be damned.