More thoughts on cross-border censorship
Free Online Scholarship (FOS) Newsletter
November 16, 2001
by Peter SuberIn last week's issue I reported on the November 7 decision of a federal district court in California giving Yahoo the protection of the First Amendment in deciding what to put on its web site, even if its pages are served in a country banning content of that kind. This is only the latest controversy raising the question of cross-border censorship. The question arose sharply last summer when the latest drafting conference ended for the Hague Convention on Jurisdiction and Foreign Judgments (see FOSN for 7/3/01, 7/10/01). Here are some further thoughts.
French hate speech law prohibits the selling of Nazi artifacts. Yahoo wants the right to sell more or less whatever its users want to sell, regardless of who is offended. But since in fact Yahoo has decided not to sell Nazi artifacts any more, let's focus on the conflict of principle embodied in this case, not on the Nazi connection. Instead of selling of Nazi memorabilia at a Yahoo auction, think about defending evolution against creationism in an online science journal or documenting the Tienemann Square massacre in an online history journal.
On November 20, 2000, a French court ruled that Yahoo had access to technology enabling it to serve its Nazi artifact pages to all visitors except those in France. There is technology for this purpose, called IP-tracking software, but a panel of three experts (including Vinton Cerf) advised the French court that it could not achieve better than 60% success at blocking surfers from a given country. Some reports of the panel's recommendation put the figure at 80%.
Let me focus for a moment on the seemingly minor point of the effectiveness of IP-tracking software. The future of cross-border censorship may depend on it. IP-tracking software identifies the geographical location of web visitors. Web sites might use it to show different weather forecasts, news headlines, advertisements, discounts, or insurance offers to surfers from different locations. Yahoo could use it to block French users from seeing its Nazi artifact pages. A history journal could use it to block Chinese readers from its articles on the Tienemann Square massacre.
If it's true that IP-tracking software can't deliver better than 60-80% success at identifying the country of a web visitor, then it's not accurate enough to protect all French visitors from offense and to protect all non-French visitors from loss of their free access rights. If so, then it doesn't solve the problem.
In the absence of IP-tracking software, we face a stark choice with only two options. First, countries like France lose to countries like the U.S. Web authors and publishers in free countries can publish what they like, and serve their pages worldwide. Countries that ban this content would have to lump it and adapt. Freedom of reading and access would rise to the level of the most-free nations. Second, countries like the U.S. lose to countries like France. Countries that prohibit certain content can enforce their prohibition against authors and publishers in other countries. Countries that would like to protect the freedom of speech would have to lump it and adapt. Freedom of speech would sink to the level of the least-free nations. (Each of these options has variations that we needn't consider here.)
The choice is a painful one because it means that, no matter what, some nations will not be able to live by their own rules. To me this is only a problem when the nation's rules have widespread public consent, as the French hate speech rules probably do. But if this is the choice, then the California court was absolutely right to decide in favor of freedom.
However, as IP-tracking software improves, this will be a false dichotomy. There will be a third option, namely, publishing freely for free countries and blocking certain content for less free countries at the request of those countries.
On the one hand, IP-tracking software is an elegant solution to problems like the Yahoo-France conflict. But on the other hand, this elegance really amounts to making censorship technically and politically easy to implement. If French censorship could only be implemented at the cost of U.S. censorship, then the price is too high, and no one should be surprised to hear a U.S. court say so. But if French censorship could be confined to France, then France might persuade other nations to let it.
The latest generation of IP-tracking software is much better than the French court and its panel of experts believed in November of 2000. One company, Quova (maker of RealMapping and GeoNet) claims 98% accuracy in identifying the country of origin of a web visitor or download request and 85% accuracy for the city of origin. But it doesn't matter much whether these claims are exaggerated. Eventually IP-tracking software will be very accurate and courts will know it. The question is whether when that time comes nations will agree to use it to allow censorship to exist in some countries while free speech and a border-crossing internet continue to flourish elsewhere.
I'm afraid we must conclude that freedom would be more secure if IP-tracking software didn't exist. Then we'd always face the stark choice between the most-free nations and the least-free. When those are the only options, then we have a fighting chance at persuading a critical mass of countries to join the most-free nations and realize the liberating promising of the internet. IP-tracking software will allow islands of repression in a sea of freedom. By mitigating the starkness of the stark choice, and allowing deference to repressive nations, it will create a path of least resistance that many nations will find irresistible.
Note, however, that on November 7 the California court tried to close the gate to this middle path. It did not rely on the reported 60-80% success-rate, and hence it is not liable to reversal when the true rate is known or when the technology improves. The court ruled that because it is unconstitutional for a U.S. court to enforce a French restraint on U.S. speech, it is irrelevant whether the technology exists to allow a U.S. publisher to comply with such a restraint. If the court's principle is sustained on appeal, then we will face the stark choice without mitigation.
I'm also afraid, however, that the middle path of IP-tracking and deference to repressive nations will ultimately prevail. U.S. courts don't want France limiting the speech of Americans. But IP-tracking software gives us a way to avoid that result; and when that result can be avoided, U.S. courts might well recognize the sovereign right of France to control what French citizens can do in France, and ask Americans to respect that sovereign right.
Issues for the future: If a court in some nation (perhaps the U.S.) tells a publisher to use IP-tracking software on its web site and block access to users from a certain country, what grounds will the publisher have to refuse? Is the right of free speech compatible with a rule requiring speakers to limit the access of some listeners to their speech? Under such a rule, speakers may still say whatever they like, but to a smaller audience than the full set of web surfers; moreover, speakers will be conscripted to censor their own work for the excluded portions of their audience. Can a nation force its citizens to become censors over citizens of other countries? Will censorship be implemented at the free end of the transmission, by the speaker, or can we tell nations that wish to ban certain content that they will have to find technologies to do it at the receiving end?
RealMapping and GeoPoint (IP-tracking)
How IP tracking software works
NetGeo (finds the longitude and latitude of the host of a given domain name)
Text of the Judge Fogel's decision for Yahoo (November 7, 2001)
EFF's page of links on the Yahoo case (small but growing)
* Postscript. The three members of the panel advising the French court on IP-tracking were Vinton Cerf, Ben Laurie, and François Wallon. After the French court ruled against Yahoo, both the non-French members of the panel criticized the decision.
Report of Vinton Cerf's criticism(Cerf made his criticism in an email to Agence France-Presse, which I have not been able to find on the web.)
Ben Laurie's public statement
* PPS. If you live in a country likely to be blocked by someone's use of IP-tracking software, then you can hide your nationality by logging on to the net through a large multi-national ISP like AOL, or by using one of these filters to hide your IP address.
Junkbusters
SafeWeb and Triangle Boy (see FOSN for 9/21/01)
Zero Knowledge
* PPPS. There are many recent news stories and analyses of Judge Fogel's decision in favor of Yahoo. Here are some of the better ones I've seen.
Carl Kaplan, Was the French Ruling on Yahoo Such a Victory After All?(Kaplan quotes constitutional law experts who argue that Yahoo's victory is just a PR victory that adds nothing to its legal immunity from French judgments.)
Tamara Loomis, Internet Companies Sighing With Relief, For Now("Had the decision gone the other way, experts say, it could have paved the way for a global meltdown of the Internet.")
Kieren McCarthy, US Judge's Nazi Net Ruling Turns Worldwide Law on its Head("By ruling that the company can't be held to account, [Judge Fogel] risks provoking years of in-fighting between different countries' legal systems.")
Troy Wolverton, Court Shields Yahoo from French Laws(Quoting Mark Radcliffe, American lawyer for the French plaintiffs: "This was a relatively easy case to decide [because of the First Amendment issues.] Cases where you've got some economic regulation or copyright issue are going be a lot tougher to justify." )
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