EU cybersecurity policies are at risk of sliding into cyber censorship

The internet dominates modern life. For decades now, it has been a source of unparalleled opportunities for commercial enterprises seeking to reach new customers and news organisations attempting to link up readers with information from across the globe. It has empowered those wishing to connect to global markets, and it has enabled monopolising multinationals to operate across rival legal jurisdictions. Where information once travelled slowly, it now speeds across national borders within seconds. No other phenomenon has caused so much tension between the traditional, territory-bound political authority of the state, and the new, technology-driven power of globalised companies.

The legacy of the internet also has a malevolent side. The same information networks which allow for unprecedented communication, also create new problems. These networks are exploited by those with more malign intent, from religious and political extremists to pedlars of “fake news”. The very systems which are used for the efficient exchange of knowledge can be sabotaged by hostile states in invidious, clandestine cyber conflicts. Where there is unparalleled opportunity, it would seem, there is also much peril.

It is in this context that national governments and supranational organisations, such as the EU, have come under pressure to tackle what is perceived as the increasing over-reach and omnipotence of Big Tech companies and social media platforms.

One of the chief concerns stems from understandable anxiety regarding the ways in which companies such as Apple, Facebook, and Google collect and exploit personal data on a mass scale, while also crowding out rivals from the market. There is also widespread desire to force these companies to do more to censor illegal activities conducted through their services.

In the US, these anxieties have gained much political traction. Presidential contender and Democrat Senator, Elizabeth Warren, has announced that if she were to be elected, she would seek to break up big companies such as Facebook. Democrat Senator Richard Blumethal, took to Twitter in June to declare that “stiff” scrutiny from the US Department of Justice was “overdue”. He continued: “Google mines and monetises data from each facet of our lives. Its apparently predatory practices – exploiting its behemoth power – stifle innovators & crush competitors, harming consumers.”

This newly assertive cyber politics is a novelty in the US, but the EU has been seeking to tame Big Tech for a number of years. In 2014, in a case brought before the European Court of Justice, Google v. Gonzalez, the court upheld the “Right to be Forgotten”. This compelled tech giants such as Google to respond to requests from individuals demanding that all web links relating to them be delisted by the company.  It has provided, along with the EU’s General Data Protection Regulation Law, a laudable attempt to protect the individual’s liberties against the power of large tech companies.

Then there are the policies pursued by the EU Commission, where commissioner Margerethe Vestager has earned a reputation as an enforcer of market competition, successfully pursuing legal cases against anti-competitive practices of Google and Facebook. Last year, for instance, Vestager successfully pursued an antitrust litigation in the ECJ which saw Google fined €4.3 bn for encouraging Android mobile manufacturers to automatically incorporate its search engine software on their devices, effectively precluding the competition.

There are doubts about the effectiveness of such measures in fundamentally influencing the behaviour of the market and consumers in the direction of greater competitiveness. While such fines make a political statement, there is little sign that they have had a tangible impact upon Google’s hegemonic position within the market. According to statcounter, an online index of web analytics, Google Chrome is still used by 62% of smartphone users.

Beyond the very understandable concern for protecting consumers from exploitation, there are worries that such policies might unintentionally lead to unintended outcomes which are detrimental to digital rights.

Michael Scott, Technology Editor of POLITICO, fears the global repercussions of the EU’s activism in challenging Big Tech. If pushed too far, it could provide a potential legitimation for governments with less scrupulous motives. For Scott, if the EU is not careful to define the grounds for intervention, then “Europe won’t succeed in exporting its rules – only its interventionist approach.” He cites antitrust investigations conducted by governments in India and Brazil, based upon similar processes to those used by the EU, which have led to state intrusion in encrypted WhatsApp messages.

Indeed, the danger with this new anti-tech exuberance is that it also threatens to over extend itself into punitive regulations which have the potential to threaten freedom of expression on online platforms and social media. There are real concerns that what started as a drive by the EU to clamp down upon the abuse of the online rights of European citizens is now threatening to slide into invasive cyber coercion.

From November, Vestager’s expanded jurisdiction in the new EU commission as the executive vice president for digital and competition policy will include unprecedented power to determine EU legislation on Big Tech, artificial intelligence, and big data. She hopes to use this to push for a new piece of legislation, a comprehensive “Digital Services Act”, which will compel social media giants such as Facebook, Twitter, and YouTube, to remove illegal content, such as hate speech, or face comprehensive sanctions and fines.

This has until now been achieved by these companies voluntarily  policing their content without external interference. New legislation would signal a shift towards a more punitive approach to perceived failings of these companies. William Echikson, the current director of the Digital Forum at the Centre for European Policy Studies, based in Brussels, has warned that the sheer volume of content being uploaded onto the internet means that this can only be achieved by the use of Artificial Intelligence.

This is, however, a notoriously defective way of preserving freedom of speech in online forums. In Germany, where a new Net Enforcement Law requiring that social media networks check and remove fake news and hate speech has been in place since the 1st of January this year, the result has been the censorship of legal content. For instance, Echikson says that Youtube’s AI recently took down a video from Project Syndicate examining the revival of Holocaust revisionism. It did so because holocaust revisionism is illegal in 16 European countries, and the video sharing platform couldn’t distinguish between revisionism and the examination of it.

This change to the laws surrounding the obligations of social media companies to remove potentially harmful content risks pulling the EU’s policies into a more censorious, global trend exemplified by states such as Turkey, Russia, and China. This is not a phenomenon restricted to the EU’s digital policies either. A similarly troubling legal shift is proposed by the UK government’s Online Harms white paper. The European Union, as with all governments and supranational organisations, must be careful that its good intentions will not pave a high road to digital serfdom.

In certain areas, the EU’s increasing interventionism in both the regulation of tech market competition and the policing of online publication is reaching the point at which institutional intervention becomes administrative overreach. If this process continues, the EU’s quest to bring greater cyber security to Europeans might end in an unintentional, but irrevocable slide into cyber censorship.

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