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Content Blocking at the DNS Level in Germany

For those who follow the issue of blocking illegal content from the Internet, there is an interesting development in relation to this issue here in Germany, and I will tell you a little about it.

One way to make it difficult to access illegal content is to block it directly in the DNS. But what is DNS for? Basically, it serves to translate the domain name into the IP of the server that is hosting the content. By blocking directly at the DNS level, a query to a domain will no longer bring the server’s IP number, and with that, the user no longer accesses that content.

However, there are several drawbacks related to blocking content at the DNS level, such as that the measures are easily circumvented and do not solve the problem, causing potential collateral damage (like blocking legal materials); they can put users at risk (when users try to use alternative and non-standard approaches to reach the content); they encourage lack of transparency; they can lead the establishment of “underground” services (when the content is moved to the Dark Web or users access the content through VPNs); they intrude on privacy (since many measures for content blocking require the examination of the user’s traffic); and they raise human rights and due process concerns (like necessity, proportionality and freedom of expression concerns).

Recently, the Bundesnetzagentur (which is the German telecommunications, postal services and energy agency) and the Bundeskartellamt (which is a competition protection authority) said that they are in favor of launching an initiative called Online Copyright Clearance System (CUII).

This Clearance system is an initiative by the copyright industry to act against copyright and intellectual property infringements. This initiative is voluntary, and participating associations represent the music, cinema, games and scientific publications sectors, as well as all major Internet access providers in Germany.

The goal of the initiative is to implement DNS blocking more effectively and quickly to make it more difficult to access sites that infringe copyright. The foundation behind this is recent German jurisprudence, according to which rightsholders can, in certain circumstances, ask Internet access providers to block access to sites that illegally make their copyrighted works available.

And how does this Clearance system work? DNS blocking requests must first be examined by a three-person committee based on the criteria of jurisprudence. Basically, the application will only be examined if it is clear that a lawsuit against the provider of the illegal content has no chance of success.

If the decision is unanimous by blocking at the DNS level, the recommendation of this committee must then be forwarded to the Bundesnetzagentur. The Bundesnetzagentur will analyze whether the recommendation can be implemented in compliance with the net neutrality aspect. If the agency does not express any concern in an informal statement, the German ISPs will block the respective domains in the DNS.

This measure raises concerns with human rights as well as the free market. Firstly, DNS blocking is one of the most popular means of building a censorship infrastructure, and its use in democratic states normalizes this instrument, encouraging authoritarian governments to use Germany as a role model to pass real censorship laws in their countries. In addition, once control instruments are introduced, they usually are no longer withdrawn but expanded for other scenarios, such as CSAM (child sexual abuse materials).

Another important point has to do with the compatibility with the rules for fair competition and antitrust since the agreement is between ISPs and entertainment industry associations. In this context, CUII can be seen as a privatized legal enforcement body, not an independent court or authority that decides which websites are classified as illegal. Ultimately, CUII is occupied by competitors from these streaming portals that alleged sharing illegal copyrighted content, which is a clear conflict of interest.

Since the start of the Clearance System operation in February 2021, the blocking of 6 portals has already been “judged.” It may seem not so much, but this open precedent can be dangerous both in Germany and in other countries, especially when it is enveloped in an “aura” of legality and institutionalization, by using jurisprudence as a basis and informally involving a government body in a part of the process.

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