Bahnhof Now Facing Net Neutrality Investigation Over Its 'Protest' Blocking Of Elsevier

from the as-predicted dept

Last month we wrote about the Swedish ISP, Bahnhof, and its decision to stage a bit of an online protest by putting up a "block" page for publisher Elsevier and a local court, after Elsevier pushed the court to force Bahnhof to block Sci-Hub over infringement claims. As we noted in our post, many people we know cheered on this kind of "protest," but I wrote that we should not, as it appeared to be a clear net neutrality violation.

I understand why many people celebrated this. Elsevier is a terrible, terrible company that gets free academic labor (often supported by taxpayer dollars) and then locks up the results of their research, takes the copyright, and only allows universities paying subscription fees that run in the 10s of thousands of dollars to get access. And then they whine about piracy? Especially against a site like Sci-Hub whose entire existence is premised on academics being able to better share knowledge? It's not hard to see who's the villain here, and its name starts with an Else and ends in a vier.

And Bahnhof's "protest" felt karmic. Elsevier wants Bahnhof to block access to Sci-Hub? Well, fine, now Bahnhof will throw up a large (temporary, easily clicked through) "block" page on Elsevier's site (and the site of the court reviewing the case).

However, I noted that we shouldn't celebrate this scenario just because we agreed with Bahnhof/Sci-Hub and believed Elsevier deserves to disappear into history. To make the point, we suggested that you change the scenario around, and imagine another ISP, upset that its workers were striking and blocking access to a union website? Because that's happened. Or, let's make it even more direct: there are a bunch of pro-net neutrality protest sites in the US right now. How would we feel if Verizon "took a stand" against those by popping up a page telling you why it disagreed any time you went to visit one of those pages?

Some people said it wasn't a huge deal with Bahnhof, because the "block" was fake, and you could still click through to get to the real website. But, again, think about the Verizon/net neutrality protest page example above. Most people would be rightly furious that Verizon was inserting itself into their browsing decisions in such a manner. The same thing should apply here.

And, so, it shouldn't be a huge surprise that Bahnhof is now facing a net neutrality investigation in Sweden over this stunt:

An announcement by the Swedish Post and Telecom Authority (PTS), which acts as the national watchdog for the electronic communications and postal sectors, reveals that it has launched an investigation into Bahnhof’s actions.

“The Post and Telecom Agency (PTS) is investigating whether the internet service provider Bahnhof has taken measures to influence access to websites,” PTS says.

“A key rule in EU regulations in this area is that all traffic on the Internet should be treated equally by providers of internet connection services. PTS’s task is to monitor and ensure that the provisions on an open internet, also called network neutrality, are complied with.”

Bahnhof, as an ISP, has actually been supportive of net neutrality (frankly, Bahnhof has been a model ISP on many important internet freedom issues). But, this kind of move is exactly what people should worry about happening if there is no net neutrality rules. ISPs are there to provide access to the wider web. And even if we were to agree with the points they're trying to make regarding copyright law, that's no reason to support the ISP stepping in to interfere with the browsing choices of its subscribers.

Filed Under: blocking, copyright, isps, net neutrality, protests, sweden, takedowns
Companies: bahnhof, elsevier


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  • icon
    That Anonymous Coward (profile), 19 Dec 2018 @ 3:52am

    Ummmm...

    'has taken measures to influence access to websites'

    “A key rule in EU regulations in this area is that all traffic on the Internet should be treated equally by providers of internet connection services. PTS’s task is to monitor and ensure that the provisions on an open internet, also called network neutrality, are complied with.”

    Unless someone can buy enough influence to get a court to destroy network neutrality by forcing them to treat some sites differently when the ISP merely provides a connection & not the site itself.

    Do the provisions of an open internet have a loophole for corporations??
    Isn't ordering an ISP to block access a violation of network neutrality, allowing corporations to cut off access to sites they dislike with the help of the courts??
    For the system to work as claimed (I mean they didn't do shit when the country broke their own laws to appease Hollywood see also: Hollywood raids TPB, forced to return servers as no Swedish law was violated.) wouldn't they need to investigate a court demanding the ISP no longer be neutral in providing customers access to the internet?
    Or is it one of those special EU things where criminals can force search engines worldwide to remove links to their crimes or if someone misuses your data its a trillion dollar fine every 3 seconds?

    If you want to pretend there is net neutrality, then court orders forcing an ISP to block access seem to be counter.
    The bank robbers used this road to get out of town, so we get an order demanding access to that road be cut off so the robbers can't drive to their destination again...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Dec 2018 @ 4:33am

      Re:

      I agree with you, but read that there is an exception carved out in Sweden's net neutrality rules for court orders when I read BoingBoing's write-up on this. So legally speaking, the original blocking doesn't violate net neutrality. I still would say that even if it doesn't violate the letter of the law it definitely leaves the spirit of the law bleeding out on the floor.

      Still, it's nice to know that not only does net neutrality exist somewhere, but that the body in charge of enforcing the rules actually gives a damn about doing so.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Dec 2018 @ 7:43am

        Re: Re:

        "legally speaking" ... who is this Legally person anyway?

        "the original blocking doesn't violate net neutrality"

        "Legally logic" used to claim up is down - film at eleven.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 19 Dec 2018 @ 8:04am

          Re: Re: Re:

          The concepts of the letter of the law versus the spirit are long standing issues. Most countries, as I understand it, have chosen that courts stand on the letter, as it is easier to adjudicate than the spirit.

          The law provides a method of violating the principles of net neutrailty - the courts. An ISP can not make an independent blocking action, but a court can order one, explicitly, by law.

          As I understand them, net neutrality efforts are focused on the ISP, not on the government. Here in the US for instance restrictions on the court's ability to block websites would not be bound by net neutrality, but by statue and Constitutional limitations. I argue it is not a net neutrality violation to comply with a court order. The ISP in this case would not be treating the website as anything other than equal. Any website which received such a court order would be blocked.

          From any direction, I fail to see how this distinction is trying to call up, down.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Dec 2018 @ 2:18pm

            Re: Re: Re: Re:

            Agreed, in many instances the law makes no sense.

            One can call a law some name that implies it does the complete opposite of what will actually be implemented and all the while claiming that is does not violate the law as written.

            I guess a lot of hand waving makes it ok.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 4:27am

    Mike, I think you did not address a very important issue.

    First off. I agree that they should not have blocked Elsevier and the court's sites.

    However the court already gave them a ruling to block other sites. If they were legally probitted from blocking any sites (Net Neutrailty) then, tauntalogically, they do not have the authority to block sites. That being the case, it's not sane for a court to order you to do something you don't have the authority to do (not saying that this doesn't happen... but in a sane world... hahah, it wouldn't happen). Therefore the court order must confer the authority to block sites (or imply such authority was pre-existing), and thus net neutrality doesn't apply to them.

    In other words, this investigation puts them in an impossible situation: "you must do X to Y, but otherthan on my say so you can't do X".

    In my humble opinion ISPs are NOT the correct place to take down sites, because they do not and should not have the authority to do so.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 19 Dec 2018 @ 4:40am

      Re: Mike, I think you did not address a very important issue.

      "In other words, this investigation puts them in an impossible situation"

      Not really. They were given specific instructions but chose to go outside the scope of those instructions.

      To use an analogy - it's illegal to take someone else's car without permission, unless you are ordered to by a court to seize it a part of your job. However, if you decide to take another car not mentioned in the court order, the original order doesn't shield you from being guilty of car theft.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Dec 2018 @ 5:20am

        Re: Re: Mike, I think you did not address a very important issue

        No that's crazy. It is crazy for a court to order some to steal a car.

        *However* it would be sane for a properly empower officer of the state to size the car.... but that's because their job include the power to act on behalf of the state.
        NOTE however that while acting of behalf of the state said person is subject to everything that constrains the state. For example, in the US, the person seizing the car would still be subject to 1st amendment, that is, in the process of seizing the car they can no violate their first amendment rights.

        An ISP is/should not be empowered to act on behave of the state.

        Or to put it yet another way: an ISP is not/should not be an agent of the state.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 19 Dec 2018 @ 5:37am

          Re: Re: Re: Mike, I think you did not address a very important i

          My point is, there's plenty of examples where otherwise private organisations are ordered by a court to do something that would be considered illegal if they were to do them of their own volition. But, the fact that they were ordered by the court to do that thing does not mean they get to choose the targets.

          Whether or not you agree with them being ordered to act in this way, the fact that they were ordered to violate net neutrality for target X does not allow them to get away with doing it for target Y at the same time. It's not an impossible situation, as per your claim, they just have to obey what it says.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Dec 2018 @ 7:46am

          Re: Re: Re: Mike, I think you did not address a very important i

          It is crazy for a court to order some to steal a car.

          Not really. In fact, a large number of seized cars don't even involve a court order, just a statement from an official on the scene that the car is parked in violation of the law. "Violators will be towed at owner's expense" is quite common in a lot of cities, and the towing company is almost always private, not a government office.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Dec 2018 @ 9:06am

          Re: Re: Re: Mike, I think you did not address a very important i

          Tow truck drivers are private, not state agents. And yet they're routinely the ones tasked with taking away cars and storing them in a private lot, and they're the ones you pay money to to get your car back.

          If a driver just did this with any car on the street, they'd be convicted of grand theft auto. However, when they do it in compliance with the laws of the municipality in which they operate, it's perfectly legal.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 4:34am

    "To make the point, we suggested that you change the scenario around, and imagine .... "

    "How would we feel if ... "

    This is the sort of way that you would explain something to an eight year old child. Are Techdirt's readers people who have never had such "talks" growing up and as a result are essentially still stuck in early childhood? Let's hope not.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 19 Dec 2018 @ 4:57am

      This is the sort of way that you would explain something to an eight year old child.

      So the language is simple to comprehend and thus makes an idea easier to grasp? I would say that is perfect usage for anyone of any age group. Your attempt at an insult has failed.

      reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 19 Dec 2018 @ 4:40am

    This seems OK to me. Part of civil disobedience is accepting the consequences of any rule you break while protesting. Even if you're 100% in the right, you should accept the results of your actions. As long as the regulator is applying its rules equally and not going better/worse treatment according to if they agree with the protest, that all seems to be working as intended.

    The big problem with the Verizon example is more that nobody's going to enforce net neutrality if they break it. It would be preferable if protests happen in other ways, but it's an order of magnitude worse if they do so knowing they will face no consequences.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 19 Dec 2018 @ 5:18am

      Re:

      O M G.... I figured out why Verizon kept snapping up all of those failing things & working things they then ruined....
      They were preparing themselves to withstand the protests for their next round of screwing with traffic...

      reply to this | link to this | view in chronology ]

    • identicon
      Valkor, 19 Dec 2018 @ 12:27pm

      Re:

      Also from the article:

      Bahnhof’s CEO says he hasn’t yet seen any formal questions or demands from PTS about his company’s “counter-blocking” but it’s clear he’ll relish the chance to bring this issue to the attention of a wider audience.

      “We will of course not let this go unnoticed, and I heartfully thank PTS for this fine opportunity,” Karlung concludes.

      So, I truly hope that this company keeps its messaging exactly in line with what you suggest. If they try to be evasive at all, they will compromise their position.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 5:35am

    'even if we were to agree with the points they're trying to make regarding copyright law, that's no reason to support the ISP stepping in to interfere with the browsing choices of its subscribers'

    what bollocks! the reason is clear! the ISP wants to bring this practice of Elsevier and the way the courts are only too pleased to support EVERY instance of website blocking in favor of all aspects of the entertainment industries, just because the company wanting the blocks is ripping off it's 'customers', making a fortune for doing NOTHING and refuses to compete in an open market! Elsevier has been and still is making an absolute fortune by the practices it's using and the world in general needs to be shown exactly what sort of a shit company it is!! good on you, Bahnhof, for taking this stance. i dont know if it'll be successful or not. a lot will depend on where the biggest 'financial encouragement' to the courts comes from. win or lose, however, everywhere, with a bit of luck, will become acutely aware of what a rip-off company Elsevier is and what it has/is up to!!

    reply to this | link to this | view in chronology ]

    • identicon
      Canuck, 19 Dec 2018 @ 9:31am

      Re:

      Exactly. Far too many here are getting bent out of shape because an ISP decided to mount its own protest. How dare they do such a thing! How is this any worse than a group marching in the streets and slightly inconveniencing drivers? Having to click through a protest page is nothing. Stop being a bunch of whiners.

      Would be interesting to take a poll of the ISP's customers and see how they feel about it. Personally, I'd be proud to be financially supporting an organization that had such principles.

      reply to this | link to this | view in chronology ]

  • icon
    Lawny (profile), 19 Dec 2018 @ 5:59am

    It's a fairly understandable point; though. Just because you do something for the sake of proving a point or standing up to someone doesn't arbitrarily make it above the law.

    As far as my memory goes (and I may be wrong, admittedly) Sweden still has valid Net Neutrality laws, or laws with a similar intent and function. And they were broken by this. Everything else is semantics, in the end. While I agree that Elsevier are very much profiting off this in a way that is morally dubious at best... if we want to enforce Net Neutrality, you can't pick and choose the reasons thereof. Everyone is affected, or no one is; there's no valid middle ground.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 10:15am

    A key rule in EU regulations in this area is that all traffic on the Internet should be treated equally by providers of internet connection services.

    So the ISP's mistake here was that they thought too small. If they had put up a block page on every single website, regardless of its relation to the dispute, they would have been treating all traffic equally and would be fine. Right?

    reply to this | link to this | view in chronology ]

  • icon
    Coward Anonymous (profile), 19 Dec 2018 @ 12:08pm

    I think what Bahnhof did is a valid protest!

    As we noted in our post, many people we know cheered on this kind of "protest," but I wrote that we should not, as it appeared to be a clear net neutrality violation.

    I believe this is a valid protest, inserting a temporary redirection in order to inform visitors to the site of the company that got a court to order the ISP to block sites they didn't want people to visit.

    This is of course a violation itself. I therefor expect the authorities to sentence the ISP to some fine for breaking the net neutrality rules. This is hopefully also Bahnhof's wish. and maybe a desire to become a victim for consciously fighting for net neutrality.

    (Yes I'm Swedish and I was a Bahnhof customer when the dialup modems sounded like on the protest page. They were one of the first ISPs in Sweden.)

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 22 Dec 2018 @ 6:21pm

    In other words - be careful not to fall for the same myopia that still has people claiming the murder of Gawker was good.

    reply to this | link to this | view in chronology ]


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