Upstream Providers

Online speech must travel through several "upstream" providers before reaching its audience. Each of these links in the chain may itself rely on its own upstream providers -- for example, smaller ISPs may simply connect users to larger ISPs, or hosting platforms may host their services on servers leased from a commercial datacenter.

When at first they don’t succeed, censors try again upstream.  The Internet’s strength lies partially in the fact that no single entity provides all the services necessary for the network to operate.  The downside of this decentralization is that there are multiple intermediary points between any two users at which a third party may attempt to cut off speech.  If the party seeking censorship meets resistance at any given link, they may simply move further up the chain and try again.

The further away from the user a service provider is located on the chain, the less incentive that provider has to push back against censorship of the user’s speech.  And even if an upstream provider wanted to defend its users, the cost of doing a fair use analysis or defending a lawsuit is frequently more than they are charging any customer.  As a result, upstream providers will often take the cheaper option of removing content or banning users.

Unfortunately, upstream censorship can silence not only the targeted user but also hundreds or even thousands of uninvolved websites and users.  To comply with a takedown request, a web hosting service may be forced to disconnect an entire website because it is not technically capable of removing specific content or web pages.  It gets worse if the requester moves upstream to the hosting service’s ISP, which could shut down the hosting service’s entire connection and take hundreds of "innocent bystander" websites offline in the process.

Users whose speech is stifled by one upstream provider can sometimes switch to a different service after being censored.  This solution is not only time- and resource-consuming, however, but probably only temporary as censorship-seeking parties chase them from one provider to the next.  Users should look for a chain of providers that is committed to scrutinizing censorship requests, notifying and working with users to assess the situation, and defending customers when a request is illegitimate.

Examples of Targeting Upstream Providers

Unhappy that its global law enforcement guide had been published online by Cryptome.org, Microsoft sent a DMCA takedown notice to Network Solutions, Cryptome’s DNS and hosting provider.  Even though Cryptome’s act was likely a protected fair use, Network Solutions asked Cryptome to remove the guide.  When Cryptome refused, Network Solutions pulled the plug on the entire Cryptome website -- full of legal content -- because Network Solutions was not technically capable of targeting and removing the single document.  The site was not restored until wide outcry in the blogosphere forced Microsoft to retract its takedown request.

When the Chamber of Commerce sought to silence a parody website created by activist group The Yes Men, it sent a DMCA takedown notice to the Yes Men’s hosting service’s upstream ISP, Hurricane Electric.  When the hosting service May First/People Link resisted Hurricane Electric’s demands to remove the parody site, Hurricane Electric shut down MayFirst/PeopleLink’s connection entirely, temporarily taking offline hundreds of "innocent bystander" websites as collateral damage. 

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