<nettime> Helmers on XS4ALL

[dwh@berlin.snafu.de (David Hudson)]

Thunderclouds on the Net's Horizon
by Sabine Helmers

As the bright streak of Hale-Bopp fades from the earth's view, the night
sky darkens once again. Not only is the firmament a shade darker, but the
Net has been as well since April 11.

The Deutsches Forschungsnetz (German Research Net, here abbreviated DFN),
the oldest and still most important ISP in Germany, connecting universities
and research institutions, has blocked access to the Web server of the
Dutch Internet Service Provider (ISP) XS4ALL. Connecting to the Web address
"www.xs4all.nl" is no longer possible via the DFN which has acted on a
request from the German federal law enforcement agency (Bundeskriminalamt),
which in turn reacted to the demands of federal prosecutors
(Bundesanwaltschaft) that one of the texts outlawed in Germany no longer be
distributed via the Net.

The text at the heart of the controversy has already made headlines
throughout the past year: an article in issue 154 of the publication
Radikal outlines tips and tricks for sabotaging the railways. According to
federal prosecutors, this text runs contrary to German law if it is to be
interpreted as calling for acts of violence against the general public and
constitutes a violation of Articles 129a, Paragraph 3; 130a, Paragraph 1
and 140, Paragraph 2 of criminal law (Strafgesetzbuch). As early as August
1996, the federal law enforcement agency and federal prosecutors notified
German ISPs that this same article in Radikal was entering German territory
via the Net and warned them that they could possibly make themselves liable
to prosecution for aiding and abetting criminal activity if they didn't
block access to this article.

But sorting through the streams of data flowing through the Internet to
pick out individual items is still not possible. The Net wasn't created
with this function built in. Technically, only one possible choice is left
to any ISP which is forced to block a particular text, and that is to
strike the entire source from the Internet addressing system, thereby
blocking it completely. In the case of XS4ALL, this means that thousands of
Web pages are equally blocked, some of them including information on
Amsterdam sports clubs and artists, the pages of the Israeli Embassy,
universities and private home pages -- all that's usually found on Web
servers of perfectly normal ISPs and is entirely legal according to German
law.

At the same time, XS4ALL is not a usual commercial ISP in that it has its
historic roots in the Dutch hacker movement and considers one of its
primary goals to be providing access to any and everyone. The managers of
XS4ALL vehemently refuse to remove the Radikal article which was placed on
its Web server by one of its clients, the Dutch "Solidarity Group for
Political Prisoners". The text does not violate Dutch law.

Last September, some German commercial ISPs reacted quite quickly to the
letter circulated by federal prosecutors by blocking their Dutch colleagues
for several weeks. At that time, the DFN simply sent a letter to XS4ALL
demanding that the Radikal article be removed from its server.

The DFN began to look into the legality of the matter on its own. The
commercial ISPs lifted their blockade once the "Solidarity Group" -- albeit
for only a short time -- took the problematic issue of Radikal off the
server. In the meantime, the text had been copied and placed on numerous
spots around the Web by free speech fundamentalists. For many, that was the
end of the matter.

They were wrong, as the DFN has now been forced to realize. German
officials are evidently still surfing throughout the Net and keeping an eye
out for illegal material. On April 2, the DFN received a letter from the
federal law enforcement agency with the information that the text was still
available in Germany. Taking the current legal situation into account, the
DFN decided it had to heed the warning and block XS4ALL in order to avoid a
legal confrontation with the terrorism fighters.

The DFN intends to maintain its blockade as long as the Radikal text named
by the agency is still accessible in Germany via XS4ALL. Accessibility is
being checked daily. Since those in Holland are in no mood to bend to
German law, the blockade may last quite a while. Technically, such a
blockade is feasible, but the question remains open as to whether or not
it's just -- whether or not one can simply block large, sweeping areas of
information such as XS4ALL on a Net which serves international research in
all fields of expertise and the greatest possible scientific communication
without running into conflicts with the goals of an Internet Service
Provider.

Since April 16, the DFN has placed news of the blockade on its Web server
but without any further comment. The spokesperson for the DFN also didn't
elaborate any further than to restate the official position on the
telephone.

In Amsterdam, the management of XS4ALL reacted to the renewed blockade with
amazed perplexity. Felipe Rodriquez, one of the managers who underwent a
judicial inquiry last year, and may do so again now, says, "Neither the
German nor the Dutch officials has been in contact with us regarding the
Radikal article. Whether or not we'll have to remove the text from our
server is a question which would nevertheless be decided by a Dutch court.
It's not our task as a provider to limit the free speech of our clients
without an official court order."

The fact that XS4ALL has been singled out by the German prosecutors further
angers Rodriquez: "For several months, over 40 Web sites are known to be
mirroring the Radikal pages. Why is the DFN blocking only our server? It's
totally absurd. I'll be sending Mr. Maas of the DFN a letter listing the
mirror sites [and he did on April 17/dwh]. Then he'll be formally obliged
to block these servers as well."

While until now both blockades of XS4ALL have been conducted in such a way
as to suggest that all the parties involved desire to keep the action as
low profile as possible, such a twist could cause a far more tumultuous
situation. Instead of a fine-pointed, possibly temporary blockade, the DFN
would have to enforce a far wider blockade which may well effect several
large US universities. In the long run, such a policy would lead to an
increasingly isolated German Internet. One hopes that the thunderstorm
building on the Net's horizon serves to clear up the legal situation in
Germany.

--

Sabine Helmers has received some reaction from readers of the original
version of the article which appeared in German at Der Spiegel Online on
April 16 <http://www.spiegel.de/97/16/poolho142.html>. Some have pointed
out that the blockade doesn't actually work what with proxy usage, ftp,
direct dialup and all. She didn't bring this up in the article because, 1,
she figured it was pretty common knowledge, and 2, she wanted to focus on
XS4ALL, not Radikal.

Also, it should be noted that the current legal situation regarding an
ISP's obligations is still mighty fuzzy. What's currently being hashed out
is whether or not an ISP is required to do anything if it becomes aware
that illegal materials are passing through its wires.

/dwh, transsetzung rapide!


_________________________________________________________

David Hudson                    REWIRED <www.rewired.com>
dwh@berlin.snafu.de             Journal of a Strained Net

_________________________________________________________


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