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Although the Internet was initially viewed as a medium for expression in which censorship would be impossible to implement, recent developments suggest exactly the opposite. Countries around the world--democracies as well as dictatorships--have implemented nationwide filtering systems that are changing the shape of Internet freedom. In addition to usual suspects like China, liberal democracies such as the United Kingdom and Australia have taken steps to implement nationwide Internet filtering regimes. In 2013, United Kingdom Prime Minister David Cameron announced a plan to require mandatory “family friendly” default filtering of all Internet access by the end of 2014. While such Internet filtering regimes may have laudable goals--like preventing children from accessing harmful content and preventing access to illegal child pornography--they inevitably lead to overblocking of harmless Internet content and present grave dangers of censorship.

International protections for freedom of expression, as well as the United States’ protections for First Amendment freedoms, provide not only substantive but also procedural protections for speech. These procedural protections are especially important for countries to observe in the context of nationwide Internet filtering regimes, which embody systems of prior restraint. Prior restraints on speech historically have been viewed with great suspicion by courts and any system of prior restraint bears a strong presumption of unconstitutionality. To mitigate the dangers of censorship inherent in systems of prior restraint such as those embodied in nationwide filtering systems, any country adopting such a system should provide the requisite procedural safeguards identified in international and U.S. law, including (1) by providing affected Internet users with the ability to challenge the decision to filter before an independent judicial body, (2) by providing meaningful notice to affected Internet users that content was filtered, and (3) by clearly, precisely, and narrowly defining the categories of speech subject to filtering.

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GWU Law School Public Law Research Paper No. 2017-40; GWU Legal Studies Research Paper No. 2017-40

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