Adiós Diego: Argentine judges cleanse the Internet

By: Firuzeh Shokooh Valle and Christopher Soghoian

Since 2006, Internet users in Argentina have been blocked from searching for information about some of country's most notable individuals. Over 100 people have successfully secured temporary restraining orders that direct Google and Yahoo! Argentina to scrub the results of search queries. The list of censorship-seeking celebrities includes judges, public officials, models and actors, as well as the world-cup soccer star and national team head coach Diego Maradona.

Both Yahoo! and Google have implemented the court-order mandated filtering, although only Yahoo! has implemented complete blocking of all results for specific names. Both search engines have appealed the numerous restraining orders, and in a few cases, the firms have been fined for not sufficiently complying with some of the courts' censorship demands.

This is not the first time that a judge or government has tried to filter the Internet in an ill-considered way, an approach that is in the same stroke both disproportionately over-broad and ineffective. Recent examples of similar missteps include the blocking of scientist Richard Dawkins web site in Turkey and a US judge's order to shutter wikileaks.org.

The situation in Argentina is notable due to the fact that a search for many of the 100+ public figures on Yahoo! Argentina will result in zero results. That is, it is not a few particularly nasty or libelous results that have been removed, but all results for these celebrities, and anyone else unfortunate enough to share the same name, have been obscured from the Argentine web for those that rely on this search engine.

Try it yourself, and compare searches for Diego Maradona on Yahoo! Argentina (which blocks all results), as well as Yahoo! Mexico and Google Argentina (both of which do not block results).

In many cases, all of the search results for the public figures' names have been eliminated, while in others, only specific search results to pornographic, defamatory or copyright infringing websites have been removed. This is not just about tabloid celebrities; a central figure in this story is the judge María Servini de Cubría who has sought to block Internet content about herself that she finds personally offensive. Governments officials succeeding in limiting access to online information about themselves also sets a worrisome precedent.

All of the clients are represented a single lawyer, Martin Leguizamon Peña, who has claimed to have achieved a 80% success rate in obtaining restraining orders against Google and Yahoo!. Peña is also seeking compensation of 300,000 to 400,000 pesos ($90,000 to $120,000) from the search engines for each of his clients.

Peña has brought successful cases before scores of different judges. While the first restraining orders were issued back in 2006, we understand that the number of legal orders skyrocketed in May of 2008. Peña is reportedly obtaining new restraining orders for the same clients, week after week, with revised lists of websites, articles, blogs, and keywords that must be blocked. Many of the orders contain specific web pages to be blocked, however, some also ambiguously order the search engines to block all sites containing defamatory or scandalous portrayals of Peña's clients. It is then presumably up to Yahoo! and Google to determine which content is defamatory -- a task that neither company wishes to or is qualified to perform.

A representative from Yahoo! told us that the censorship order relating to Diego Maradona was first issued in September 2008. The order required Yahoo! Argentina to block all search results for Diego Maradona containing either pornography or images of the star and has since been expanded to include sites that reference thirty-three members of his family. Rather than dedicating the considerable resources to manually determine which sites on the Internet met this standard, Yahoo! instead implemented a block for all search results containing the football player's name.

The actual reach of the court orders, of course, is fairly limited. Internet users in Argentina who know about the censorship are free to use many of Yahoo!'s other Spanish-language search sites, for example, Yahoo! Mexico or Yahoo! Spain. Even those users unaware of the censorship are likely to seek out other search engines, such as Google, once they come across a search page with zero results. Poor typists are also in luck, as Yahoo! has clearly implemented the orders narrowly, not removing results for "diegomaradona" or "diego maradone," for example.

Even though the blacklist is easy to circumvent, it has the potential to cause significant collateral damage beyond those 100+ celebrities who have sought court orders. This is due to the simple fact that many of those individuals are unlikely to have unique names. Just as America's "no-fly list" has caused countless problems for innocent passengers who shared the name with someone else listed on the government's secret watch-list, so too does Argentina's Internet blacklist have the real potential to cause harm to others. These innocent people have now essentially vanished from a good portion of the Argentine Internet, simply because they happen to share their name with a celebrity.

Just a few weeks ago, Google, Yahoo!, Microsoft and a number of other groups, including the Berkman Center, announced the creation of the Global Network Initiative (GNI) -- a code of conduct and supporting structures to protect free speech and privacy against government mandated intrusions -- and to individually and collectively address situations such as these. While recognizing that the GNI is new, the framework would appear to directly forbid the silent implementation of court-ordered censorship that Yahoo! was performing:

Participating companies will seek to operate in a transparent manner when required to provide personal information to governments. To achieve this, participating companies will:

Clearly disclose to users the generally applicable laws and policies which require the participating company to remove or limit access to content or restrict communications....

Give clear, prominent and timely notice to users when access to specific content has been removed or blocked by the participating company or when communications have been limited by the participating company due to government restrictions. Notice should include the reason for the action and state on whose authority the action was taken.

Yahoo's lack of transparency in its implementation of the court orders, at least up until yesterday, is particularly concerning. Until Monday November 10th 2008, Yahoo! silently removed search results from queries on Yahoo! Argentina, and in some cases, removed all results (such as for Diego Maradona). Yahoo! has since added a note to the empty search results screen explaining (in Spanish) that:

"On the occasion of a court order sought by private parties, we have been forced to temporarily remove some or all of the search results relating to it."

Colin Maclay, who leads Berkman's work on the GNI, said, "this situation is another reminder of the need and urgency for developing clear guidance and best practices for companies, while also engaging in strategies for policy engagement and seeking to better understand evolving legal regimes and practices. Participation won’t change things overnight, but requires a determined, deliberate and sustained implementation. Based on the commitment we've seen by the participants thus far, I am optimistic that we'll make progress on these particular issues both in the near term and over time."

Google is not filtering results to the same degree as Yahoo!. For example, a search for Diego Maradona on Google Argentina returns nearly 2 million results. The company does, however, remove specific pages from the search results on its Argentina site. The search engine notifies its Argentine users of this censorship, just as as it does in Germany, France and China.

An example of Google's filtering in Argentina can be seen by searching for "susana gimenez sexshop" which will result in three links at the bottom of the page to the Chilling Effects Clearinghouse -- a project that tracks these incidents and seeks to inform users of their rights.

When we spoke to Alberto Arebalos, Director of Latin American Global Communications and Public Affairs at Google last week, he stated that "we will exercise prior censorship of these sites" when required by a court order, but then added, "even if we were to eliminate all these sites, people in Argentina could look them up in the Google pages of other countries. In specific situations, we could block specific sites, but definitely not all the sites that appear under a name." Finally, he stated that Google is willing to fight the censorship cases all the way to the Argentine Supreme Court if necessary. Early in October, another Google employee similarly outlined the company's position on the company's Latin America blog.

Wendy Seltzer, the founder of the Chilling Effects Clearinghouse described the situation in Argentina as "a telling example of the fragmentation of the Internet via intermediaries. Rather than going directly to the source of objectionable content, complainers find someone in the middle who can be persuaded to block access in at least some locations. This kind of takedown often obscures the source of the objections and removals." She added that, "Chilling Effects aims to add transparency to the process both by showing takedown demands and by allowing people to compare results across various localized versions of search engines."

When reached for his thoughts, Jonathan Zittrain, a professor of law at Harvard and an ONI principal investigator, stressed the importance of transparency in cases of government-mandated censorship. "It's crucial for search engines and other intermediaries to be able to make it known when outside parties have ordered or pressured them to alter their results. The crudeness with which the filtering was carried out here made it eventually stand out -- but imagine eliminating half the results instead of all of them." He also added that "this is the first I've seen of filtering based on a search rather than on results, except for the narrow cases where, for example, Google will not permit searching by credit card number."

Globally, these blocking orders may be the tip of the iceberg as more countries and their judges struggle with controlling content online. This also provides a glimpse into the challenges companies face, and those ahead for organizations that hope to combat excessive restrictions on free expression online.

There are unquestionably measures that technology companies operating internationally can take to improve freedom of expression online. Two useful steps are to clearly communicate with their users where restrictions are applied and to appeal inappropriate government orders. This case also highlights the fact that it is the decisions and actions of government officials that are at the root of the issue. It is up to Argentina to decide whether this dubious blocking persists. In this instance, the decisions of the Argentine judiciary and the remedies that they mandate do not reflect the realities of the Internet. Going after the intermediaries with overly broad mandates is poorly conceived and stands to substantially threaten freedom of expression in Argentina.