In an interesting stunt to test copyright enforcement policies on the Net, Brit Christian Ahlert uploaded sections of John Stuart Mill's classic defense of freedom of the press in On Liberty to the Web. In one case, he used an English ISP and in the other, an American one. The Mill material is in the public domain under both British and US law. He then sent the ISPs letters of complaint from a fake group called the John Stuart Mill Heritage Foundation.
Ahlert reports that the US ISP responded with detailed questions, "but the UK ISP took the site down almost immediately, effectively censoring legal content without investigation." In a provocative--though not necessarily completely convincing--conclusion, he writes:
ISPs are acting as judge, jury and private investigator at the same time. They not only have to make a judgement whether a website is illegal or not - they also have to act as a private detective agency, investigating the accusations and deciding on the merits of the evidence they gather. Nevertheless, when an ISP removes content it invokes the cyber equivalent to the death sentence. When an ISP acts it can effectively destroy a business or censor a political campaign, by making access to that website impossible.
Ahlert's implied suggestion--have official public bodies do all the policing--isn't a particularly strong remedy to jumpy ISPs. But he raises interesting questions about how chilling effects come into play. He also usefully links to the Electronic Frontier Foundation's Chilling Effects site.
Ahlert's piece, which appears on the always interesting site Spiked, is online here.