Monday, August 23, 2004

Yahoo!: Internet Reterritorialization

Santa Clara is a suburb of Paris. That is, if we have to believe the French Court decision in the well-known 2000 LICRA v. Yahoo! case (PDF French Text, PDF English Translation). And we have to, or more precise, according to the Ninth Circuit Court's ruling of today Yahoo!'s attempt to block enforcement of the French decision on First Amendment grounds is void until the original French parties (Licra et al) have subjected themselves to American Court themselves (PDF Decision).

The new ruling is about jurisdiction, as was the original French case. The Yahoo! cases also touch upon two other interesting and related issues: a clash of Free Speech values (US v. French/European) and the possible rise of geolocation techniques to reterritorialize the Internet. Most of what follows is derived from my forthcoming essay Speech Regulation Through Network Architecture: A Public-Private Hybrid. For this specific subject the essay leaned on the work of Joel Reidenberg. At the Code conference in Amsterdam last month Reidenberg expressed his concerns towards the clash of cultures on the Internet and thought reterritorialization through geolocation to be inevitable. This contray to Eben Moglen and others, but this will be another posting altogether if time allows.

In the original case the French Court ruled that the American company Yahoo! should and could block the access of French citizens to those parts of its auction site that offered Nazi related materials. It based its jurisdiction and the applicability of French law on an effects doctrine: any action committed outside national territory, affecting a French citizen within the national border, may be subject to French law. While the Yahoo! site was hosted abroad on an American server, it could be viewed within in the French borders and thus effect French citizens.

Though Yahoo!'s exhibition of Nazi materials is certainly allowed under American Constitutional law, it is prohibited by the French Criminal Code. After the gruesome genocides in the Second World War many European democracies found a restriction on freedom of racist speech justified. This contravenes with the conception of free flows of information, as established by the American First Amendment and coded in the architecture of the Internet. With some enthusiasm Lawrence Lessig wrote in his 1999 book Code: “We have exported to the world, through the architecture of the Internet, a First Amendment in code more extreme than our own First Amendment in law." (paperback, p. 167) This “extremism” is not necessarily reflected in the constitutions of other democracies or international treaties. Both the UN's International Covenant on Civil and Political Rights and the European Convention on Human Rights and International Freedoms allow restrictions to hate speech. The exhibition of Nazi materials can be judged as such.

So, the architecture of the Internet may adhere to First Amendment values, these values are not endorsed by every other country. The allegation that the French Court order to restrict the access of French users to materials, which are rightfully forbidden under French law, threatens the freedom of expression, is based on the premise of certain, American, values. Criticism that the Yahoo! case is a form of European Internet imperialism can be answered with equal rhetoric: the First Amendment was the first to invade European soil. Through the Internet, through code.

In order to support the claim of jurisdiction in the first Yahoo! case the feasability of geolocation techniques was researched. Geolocation techniques offer geographic localization by connecting IP addresses to the nationality of a user. Every time a user connects to the Internet his ISP assigns him an IP address out of the block of addresses assigned to the ISP itself. Names and addresses of these ISPs and the blocks that are assigned to them, are stored in a database which is in the public domain. With this information a source can differentiate in content depending on the location of the user. It facilitates the adjustment of language per region and more personal advertising. It also supports the enforcement of local law on foreign soil through code. Blocking of region specific IP addresses at the network layer will prevent out of state citizens from accessing a source.

The French efforts to create a form of zoning through geographic determinism clash with the original ambiguity of the Internet infrastructure towards the origin of data. Determination on the basis of IP addresses has a 70% accuracy rate, according to the experts' opinion in the French case. The accuracy of this accuracy rate aside, this figure conceals another problem. It is nothing but certain that it has a lasting value, and if, how high that value will be. Nothing in the design of the Internet restrains a reallocation of blocks of IP addresses to a different country. A user, who's presumed to be French on the basis of an IP address today, may have another nationality in the future. Using IP addresses as the basis for geographic determination leads to over- and under-inclusive blocking, the severity fluctuating with time. Besides, those who really want to obtain Nazi materials through the Yahoo! Site, can use anonymizers to circumvent the IP address blocking scheme. A technology that hides the origin of the user by connecting to the site through another server. It would make it virtually impossible to determine a geographic location. This leads to an underinclusiveness, which shows that regulation through code is as good and effective as the code allows.

Today's decision has not added much to the clash of free speech values or geolocation issues. It has given another spin on the question of jurisdiction from a traditionally legal perspective. We'll have to wait for a ruling thar adressess the technological counterpart of this jurisdiction, geolocation, in more detail. Until that time we have a fresh decision that probably stinks in the eyes of digital libertarians of days gone by and days to come:
France is within its rights as a sovereign nation to enact hate speech laws against the distribution of Nazi propaganda in response to its terrible experience with Nazi forces during World War II. Similarly, LICRA and UEJF are within their rights to bring suit in France against Yahoo! for violation of French speech law. The only adverse consequence experienced by Yahoo! as a result of the acts with which we are concerned is that Yahoo! must wait for LICRA and UEJF to come to the United States to enforce the French judgment before it is able to raise its First Amendment claim. However, it was not wrongful for the French organizations to place Yahoo! in this position.
The waiting has started, and not just for Yahoo!.
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There is remarkebly little blogging on this decision. Always prolific, Scrivener's Error does give an analysis. I may not agree with his last paragraph, though it does point to the clash of free speech values I noted.
More on Susan Crawford's blog, which doesn't allow anonymous posting for some reason. Also on Legal Theory Blog, and a petite by Froomkin.


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