In today\’s New York Times, Lisa Guernsey [writes…]
\”Last fall, a French judge named Jean-Jacques Gomez made Internet history, and attracted a flock of critics, when he ordered the Yahoo Web site to prevent French residents from viewing Nazi memorabilia in its online auctions.
To Yahoo, the appearance of Nazi uniforms and other objects was simply an unintended byproduct of the borderless Internet: the items, which were being offered by sellers all over the world, happened to be on French computer screens.\”
In today\’s New York Times, Lisa Guernsey [writes…]
\”Last fall, a French judge named Jean-Jacques Gomez made Internet history, and attracted a flock of critics, when he ordered the Yahoo Web site to prevent French residents from viewing Nazi memorabilia in its online auctions.
To Yahoo, the appearance of Nazi uniforms and other objects was simply an unintended byproduct of the borderless Internet: the items, which were being offered by sellers all over the world, happened to be on French computer screens.\”
\”But Judge Gomez was intent on upholding French law, which largely prohibits the display of Nazi insignia. He ordered Yahoo to keep French viewers from seeing Nazi items and to keep any pro-Nazi comments from appearing on any Yahoo pages available in France — or to pay fines of more than $13,000 a day.
His decision raised the question, How can one jurisdiction decide what can or cannot be displayed on the World Wide Web?
In the press, American civil rights lawyers railed against Judge Gomez\’s ruling. \”We now risk a race to the bottom,\” said Alan Davidson, a lawyer for a nonprofit group called the Center for Democracy and Technology. \”The most restrictive rules about Internet content — influenced by any country — could have an impact on people around the world.\”
But as the dispute has continued to brew, Judge Gomez has found himself with some like-minded company. In recent cases, judges in Germany and Italy have come to similar conclusions, declaring that national boundaries do indeed apply to the virtual world as well as the physical one. A judge in one case said that German hate-speech laws could be applied against an Australian who posted material disputing that the Holocaust occurred. An Italian judge ruled that his country\’s libel laws pertained to any online information that could be read by an Italian.
\”There is this naïve idea that the Internet changes everything,\” said Ronald S. Katz, one of the lawyers representing the French groups that have sued Yahoo. \”It doesn\’t change everything. It doesn\’t change the laws in France.\”
Suddenly, the seemingly borderless Internet is ramming up against real borders. The imposition of jurisdictional laws could mean that online publishers decide either to keep some material off the Internet entirely, for fear of criminal and civil charges filed in different countries or even different states, or to install online gates and checkpoints around their sites, giving access to only certain viewers.
The legal battles are being fostered by new technology that appears to make those online checkpoints possible. In the past year, software programs have been released that are supposed to figure out where people are at the instant they gain access to a Web site. By conducting real-time analyses of Internet traffic, a technique sometimes called geolocation, these software programs can try to determine the country, the state and, in limited cases, even the city from which a person is surfing the Net.
Based on that extrapolated location and with the use of programs like keyword filters, the software can then block Web pages from being seen, essentially putting a tall fence around part of the Web.
\”We are now seeing geographical zoning online that mirrors geographical zoning offline,\” said Michael Geist, a law professor at the University of Ottawa who specializes in online issues. \”The view of the Internet as borderless is dying very quickly.\”
Few examples of geographical zoning exist so far, but the impact could be far-reaching. People in countries that prohibit gambling may find that they are blocked from visiting sites like BlackJack.com. A shopper in Germany may be directed away from comparison-shopping sites because German law prohibits side-by-side price comparisons in advertising. Even within the United States, the software could provide communities with new justification for enforcing local obscenity standards online. If that happens, residents of one city may not be able to see material available in another.
That, of course, is not the way cyberspace is supposed to work, at least not according to the early developers of the Internet, who relished the idea that information could be free of all restraints. \”The Internet was designed without any contemplation of national boundaries,\” said Vinton Cerf, a senior vice president of WorldCom who is credited with designing much of the Internet\’s structure. \”The actual traffic in the Net is totally unbound with respect to geography.\”
The only passports on the Internet are I.P. addresses, sets of four numbers separated by periods, which have no direct correlation to where a person\’s computer is located. I.P. addresses are intended to be used to keep straight all the data that flows between machines. Dr. Cerf said I.P. addresses were not like phone numbers, with area codes.
Although geolocation technology was primarily developed to deliver localized ads, software makers have started to offer programs that could let companies comply with local restrictions. In the past few months, start-ups like RealMapping, Quova and BorderControl have started selling versions of the software. Akamai, a company that provides services for more than 3,600 Web sites, came out with its own geolocation product, called EdgeScape, last summer.
The software, which is typically installed on a Web site\’s servers, detects when a Web surfer arrives at the site, and analyzes the surfer\’s connection to the site. Most of the time, the I.P. addresses will yield matches that simply give the location of the company (often an Internet service provider) that obtained the address instead of the individual using it, so other techniques are also employed. One strategy is to trace all the steps that a packet of data has taken and extrapolate the likely location. For example, if the last few routers a packet passes through are in Pennsylvania, chances are good that the recipient is, too.
Geolocation products are a nascent technology, but Akamai is already providing its EdgeScape service to 20 clients, some of whom are using them for advertising purposes, said John Shumway, vice president for product management for the company. \”This is something that is gaining tremendous momentum,\” he said.
Of course, there are still serious questions about whether these technologies can, in fact, determine locations with any certainty. America Online users in France, for example, could decide to dial a number in the United States to gain access to the Internet. People using a satellite-based Internet service provider would be anonymous to an ordinary location tracker. Programs like Anonymizer and SafeWeb, which disguise a computer\’s I.P. address, can also fool geolocation systems — a point that software companies concede. And even if a person\’s state or country is determined, filtering software has proved to be far from perfect.
But it was the very existence of geolocation technology, its flaws aside, that influenced Judge Gomez\’s decision in the Yahoo case. To determine the feasibility of online zoning, the judge convened a panel of three technology experts, including Dr. Cerf. The panel reported in November that automated software could probably pinpoint the resident country of about 70 percent of online users in France and added that if Yahoo also asked its users to state their nationality, the site could keep content away from as many as 90 percent of them. (Despite his participation on the panel, Dr. Cerf objected to the final report, which he said did not focus on the flaws or the larger implications of installing online gates.)
Some experts in Internet law call the Yahoo case a turning point in how courts handle questions of international jurisdiction.
Kimberlianne Podlas, an Internet-law professor at Bryant College in Smithfield, R.I., said that the case involved what in legal circles is called the effects test. If someone in one jurisdiction feels the effect of the action of someone in another jurisdiction, the laws of the first still apply. For example, if a person in New York shoots a gun across the state line and injures someone in Connecticut, the laws of Connecticut can be invoked because the injury occurred there.
Using that test, judges may decide to look at the locations of the viewers themselves, instead of considering the locations of the companies that serve Web pages to online viewers. That situation alarms many civil rights advocates. Jerry Berman, executive director of the Center for Democracy and Technology, said he was worried that companies might feel forced to comply with each country\’s standards or to simply shut down troublesome pages. \”The Internet cannot operate that way,\” he said.
The idea of one country exerting its laws over the Web is not new. In fact, American companies, using the muscle of the United States court system, have done it, too.
One such case involved iCrave, a Canadian Internet company that was designed to capture North American television signals and rebroadcast them online to Canadians. Canada\’s copyright laws allow licensed cable companies to broadcast such signals simultaneously to Canadians without permission from the original broadcasters (although the original broadcasters do have to be compensated).
Expecting to be covered by the legal protections afforded to cable companies, William Craig, the founder of iCrave, insisted that he was aiming his service only at Canadians. But American entertainment executives sued iCrave, accusing it of violating United States copyright laws. In a settlement last year, Mr. Craig was forced to close his Web site.
American companies have also shown little interest in conforming to other countries\’ privacy laws. In most European countries, for example, companies are not allowed to sell customers\’ names and other personal information without customers\’ permission. In the United States, selling names without permission is legal and commonly done. So American companies have tried to carve out a compromise that keeps them free of liability from European lawsuits if they promise to regulate themselves — a move that some European legislators say will lead to weaker standards.
Yahoo is fighting Judge Gomez\’s ruling in a Federal District Court in San Jose, Calif., arguing that the French order cannot be enforced for several reasons, including conflicts with the First Amendment. And the order remains unenforced in France. The groups have not yet asked that the daily $13,000 fines be levied, in part because Yahoo announced in December a worldwide ban on material with hate-promoting references, including Nazi items, in Yahoo\’s auctions and classified and shopping areas.
(Yahoo\’s ban does not, however, apply to coins and stamps, an issue that the French court did not explicitly address. Nor does it apply to online forums, so the company is still in violation of the order.)
The nature of the Internet may now hinge on the staying power of rulings like Judge Gomez\’s and on the success of geolocation software. In either case, the day may not be long off when Americans who want to visit a gambling Web site or watch a certain Webcast have no choice but to travel out of the country and use a foreign computer — a notion reminiscent of the time before the Internet, when your physical location made all the difference.\”
Story By LISA GUERNSEY
The New York Times…
March 15, 2001
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