A telefax was received by us from the Public Prosecutor General on August 30 in which eco e.V. is informed of an on-going investigatory procedure. We have been requested in this context to inform all Internet service providers affiliated withICTF (Internet Content Task Force) the following in writing:
"Under the following addresses in Internet:
and using the link on page
one can call up the entire edition of the pamphlet entitled radikal Nr. 154". Parts of this pamphlet justify preliminary suspicion of promoting a terrorist organization under § 129a, Par.3 of the German Criminal Code, public condoning of criminal activities penalizable under § 140 no.2 of the German Criminal Code and preliminary suspicion of inciting to criminal activity under § 130a Par.1 of the German Criminal Code. The Public Prosecutor General at the Federal Court of Justice has therefore initiated a criminal investigatory procedure against the parties disseminating this pamphlet.
You are herewith informed that you may possibly make yourself subject to criminal prosecution for aiding and abetting criminal activities if you continue to allow these pages to be called up via your access points and network nodes".
On behalf of the ICTF I have documented the proceeding - including all the documents which can be called up under the stated URLs - and answered it as follows (excerpt):
I informed the Internet service providers (ISP) affiliated with eco of the notification contained in your letter on the same day. I would not like to make the list of companies which we have informed of the letter" available to you without prior telephone clearance.
As you know, eco e.V. sees itself to be an association comprising the majority of the German on-line business, and as such we are primarily obligated to pursue and defend the interests of our members. With respect to the criminal charges you have remonstrated for aiding and abetting criminal activities, I ask for your understanding for our reluctance at present.
In order to avoid impeding your investigations and avoid our members being subjected to any negative repercussions, I shall nevertheless contact you immediately. The staff at my law offices have in addition been instructed to send me calls and letters received from your authority with utmost priority.
I am not able to find any tangible legal reasons why an ISP may be subject to prosecution for aiding and abetting criminal activities if it does not block access to illicit documents via the so-called World Wide Web" (WWW).
In structural terms, the WWW is a so-called overlay network", which merely makes use of the Internet to transfer data streams. In such a constellation the ISP is nothing other than a classic data carrier which offers its customers the transmission of so-called IP packets" as a service. The usage data which is transported via the network as IP packets are not de facto identifiable for ISPs. Nor do providers have any other possibilities available with which to identify the data which is transmitted via its infrastructure as IP packets, the reason being that at the applications level, available and accessible data are not located in its domain, and in particular they are not being made available by Internet providers. In this context, I have taken the liberty to review the manner in which the URLs specified by you are connected to the Internet. I present you with excerpts of the result in the following : ... (commented Traceroutes)
In addition to this, it must also be doubted whether an evaluation of the usage data elements contained in the IP packets would be legally admissible because no clear-cut decision can be made on the basis of the IP packets as to whether the data has been transported within the framework of an individual communications relationship and thus access by third parties has been prohibited under § 85, par. 3 of the Telecommunications Act (which has in the meantime gone into force).
Blocking access to WWW pages suspected of being illicit moreover runs up against some misgivings from a practical point of view.
The blocking of the URL or even particular documents desired by you is not technically possible in my view. In order to explain this, it is first necessary to elucidate some characteristics of the DNS (Domain Name Service). The TCP/IP protocol upon which Internet is based uses 4-byte addresses (which for example have the form 220.127.116.11), whereby a network element is completely addressed. Because dealing with addresses like this is difficult for the user, a name system has been established with the DNS which depicts alphanumerical character chains on the technical network addresses. The clearing of the name=>address, however, is usually already conducted by the clients of the Internet subscribers in a way so that the ISP can no longer recognize which domain or which URL his customer accesses. As an alternative to blocking the URL, it could merely be possible to block a host, an entire network or the WWW port of a host. Taking such a measure, however, can neither guarantee that documents imputed to be illicit can no longer be called up (with respect to frequently visited WWW servers it is not uncommon to conduct a load balancing by using several hosts), nor can it be assured that non-relevant data stocks will not be affected by the blockage. The latter is once again tantamount to a violation of the main obligation set out in the provider agreement concluded between the ISP and its customers.
The example depicted by you on page 2 of your letter illustrates the problem in stark terms. The document imputed to be illicit which you mention can scarcely become the subject of legal action upon closer examination. In the version which I have just called up and put in my files, the author expressly states the following:
The declaration pertaining to the search conducted at »radikal« and its prohibition are reprinted for currently relevant reasons. Before using the link to Amsterstam shown below this should definitely be read in order to avoid misunderstandings. The stated link is a reference to the pages of »radikal«, as a possibility of shaping opinion especially with respect to controversial texts in the magazine and as protection against the attempt to make a complete editorial unit responsible for printed statements made by individuals responsible for such statements. Any interpretation in the direction of glorifying or calling for militancy or the distribution of prohibited publications is not justified. The cross-reference to »radikal« does not represent any statement on the particular passages of the published edition in terms of its contents. It is an article aimed against censorship in Germany."
One may not condone these statements from a political standpoint, but they are not punishable offenses. Nor, in my opinion, is the rest of the text. Even given the fact that a hyperlink to the RADIKAL edition which is being attacked by you has been included, I am not able to perceive any responsibility for a punishable offense. For an ISP to which you cannot impute anything more than a coterminous value in the laypersons sphere, this applies all the more.
If one wanted to allege that the document is illicit and that an ISP would be subject to the obligation to block access to this document, this would not be possible in practical terms. The URL http://ourworld.compuserve.com", which indicates the WWW server where the document is stored, is converted into the network address 18.104.22.168. An ISP would have to block access to the entire host, and in actually doing so, numerous documents - including those from completely different authors - would be affected. It would even be conceivable that access to all documents which the CompuServe online service makes available within the framework of its Web housing offer in Internet would no longer be available to the customers of an ISP acting in this manner.
In view of the fact that no illicit nature can be perceived with respect to the document, such a manner of proceeding would be unreasonable and would also justify a damage claim against the ISP.
Given all of the foregoing, we do not consider ourselves to be able to recommend the ISPs affiliated in eco block the URLs stated by you unless we receive additional information providing evidence for illicit co-responsibility and laying to rest the misgivings detailed above. As we expect your authority to provide a suitable legal statement on the matter, however, we have explained to the ISPs affiliated in the eco why they should make the necessary preparations to block the alleged host.
The recommendation to the providers affiliated in the ICTF mentioned in the letter to the Public Prosecutor General contains the following proposal:
A talk finally took place with the head of department the afternoon of September 3. I was informed that the Public Prosecutor General is of a fundamentally different legal opinion than the ICTF ). An Internet service provider would definitely be guilty of aiding and abetting criminal activities if it failed to act after it had been informed about the URL of an illicit document. Investigatory procedures against the providers have thus long not been initiated because it is expected that the providers will prevent criminal penalties being applied by complying with the desire of the Public Prosecutor General to block the alleged URLs.
The Public Prosecutor General has in this case, it says, responded to the offer of the ICTF to get in touch with us in our capacity of the central office instead of taking the otherwise usual route. The otherwise usual route", it states, would be to contact the Land Ministries of Justice and via these request that law-enforcement measures (fines, substitute performance) be taken. It also stated that further-reaching measures were conceivable in this context.
The ICTF responded by making the following recommendation to the affiliated providers:
With best regards
- on behalf of eco e.V. -
(attorney at law)