The online world is looking nervously at Europe, whose leaders are making ever-louder noises about joining forces to bring "civility" to the Internet. French President Nicolas Sarkozy has led the cheering squad. At the last G8 conference Sarkozy rolled out a digital laundry list of Internet-related problems that need ironing and folding—everything from intellectual property protections to the need for cyber folk "to show tolerance and respect for diversity of language, culture and ideas."
The Internet "is not a parallel universe which is free of rules of law or ethics or of any of the fundamental principles that must govern and do govern the social lives of our democratic states," he warned. He called for "collective responsibility" and "for everyone to be reasonable" in cyberspace.
The specific call for regulation may be new, but France has long attempted to "civilize" the Internet out of things like racism and Nazi ideology by curbing their dissemination.
In fact, the first battle in this war concluded a decade ago. The winner was France; the loser was the then-reigning giant of the Web—Yahoo—along with the notion that the Internet is a "global" place that inherently transcends national boundaries.
The story is eloquently told in Jack Goldsmith and Tim Wu's indispensable book, Who Controls the Internet? Illusions of a Borderless World.
Page after page
It was February 2000, and anti-neo-Nazi activist Marc Knobel was sitting in Paris, scouring the Internet for Nazi artifacts being sold online. If you search for Knobel's name today, you'll find surprisingly little about him. He doesn't seem to have a website or a Wikipedia entry. But he has a long set of associations with prestigious anti-Semitism monitoring groups like the Simon Weisenthal Center, and his own organization, J'Accuse—"an association fighting against racism and anti-Semitism on the Internet." (The name "J'Accuse" is a reference to the 19th century "Dreyfus affair" in France, in which a Jewish army officer was falsely accused of espionage.)
In e-mail correspondence with Goldsmith, Knobel explained what he found during that search: "page after page of swastika arm bands, SS daggers, concentration camp photos, and even replicas of the Zyklon B gas canisters." They were all for sale on Yahoo's auction site.
Today many people accept online World War II era Nazi/Stalinist/Japanese empire swag as a given. It's just there, an inescapable part of our dark past. Sure, some people buy it for creepy reasons—e.g., they think that the Nazis or Stalin were great guys. But others seek it out because they are teachers, historians, or documentarians, or were veterans of the struggles against communism or fascism.
Knobel saw none of this ambiguity, it seems. What he did know was that he had French law on his side, specifically Article R645-1 of that nation's criminal code. While making an exception for films, the law fines any person in France who wears or displays:
in public in uniform, insignia or emblem reminiscent of uniforms, badges or emblems which were either worn or displayed by members of an organization declared criminal under Article 9 of the Statute of the International Military Tribunal annexed to the agreement London, 8 August 1945, or by a person convicted by a French or international court of a crime or crimes against humanity [Google translation].
And so Associated Press readers saw the following news item on April 11, 2000:
A French anti-racism group filed a lawsuit Tuesday against Yahoo! Inc., claiming the Internet search and directory company hosts illegal auctions of Nazi-related paraphernalia.
The International League Against Racism and Anti-Semitism, known by its French initials LICRA, is suing Yahoo! for having Nazi-related items on auction websites that can be accessed in France.
France has strict laws against selling or displaying anything that incites racism. Sales of such Nazi items are against the law.
You have no control
This lawsuit may have impressed some Netizens, but it didn't scare Yahoo, which was at the height of its power. The company stunned the world in 1996 by going public with sixty-eight employees and almost instantly reaching a valuation of $850 million. The firm had ventured "into the sphere of surrealism," in the words of one analyst. Four years later, the Google era had not quite arrived. Yahoo was still the go-to portal for the 'Net. Its stock sold for $475 a share.
A utopian optimism accompanied this boom. "Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind," declared John Perry Barlow in his then-famous Cyberspace Independence Declaration of 1996. "On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather."
And so when Judge Jean-Jacques Gomez of Le Tribunal de Grande Instance de Paris sent Yahoo the requisite summons, the company's CEO Jerry Yang issued a statement right out of Barlow's playbook. France "wants to impose a judgment in an area over which it has no control," Yang declared.
A great wave of nay-saying greeted this prosecution. France's laws did not apply to Yahoo, which dwelled in the United States, land of the First Amendment! The rules would be impossible to enforce! How would Yahoo know which viewers came from France? It would hamstring international commerce!
Even writers sympathetic to the notion of government regulation seemed skeptical of its prospects in the digital era. The New York Times economist Paul Krugman loudly counted himself among these worriers. In 2000 he found a connection between P2P file sharing and the proliferation of 'Net-powered overseas tax havens:
What unites these two stories? Both are about how technology is erasing boundaries—the boundaries that we use to define intellectual property, the boundaries that we use to define tax jurisdictions. And in both cases the loss of effective boundaries, though it brings some direct advantages, threatens something important: the ability of creators to profit from their creations, the ability of governments to collect revenue.
"Something serious, and troubling, is happening," Krugman warned, "and I haven't heard any good ideas about what to do about it. "
Healthy and civilized
But none of this skepticism stopped Judge Gomez or his supporters.
"French law does not permit racism in writing, on television or on the radio," declared a lawyer sympathetic to Knobel's perspective, "and I see no reason to have an exception for the Internet."
On May 22, 2000, Gomez declared that Yahoo's auction sites were illegal in France. His preliminary decision ordered the company to "take all necessary measures to dissuade and make impossible" visits to them from that country. Yahoo had two months to figure the problem out.
Yahoo insisted that this task was impossible. But the prosecution brought in experts who demonstrated technology capable of identifying content by geographical source. This gear also showed the court that Yahoo had set up a mirror server in Stockholm—well beyond the protections of the US First Amendment. Even more experts piled into the proceeding. They insisted that Yahoo could filter 90 percent of French users from the auctions.
This convinced an already-persuaded Judge Gomez to make the order permanent. Yahoo insisted that it would ignore the decision. But behind the scenes, its executives faced a brick-and-mortar problem. For every day after February 1, 2001 that it refused to comply with the order, it would have to pay France 100,000 francs per day.
"Yahoo executives, who make frequent trips to Europe and who would be subject to legal process there, began to think things through," Wu and Goldsmith note. The company removed all Nazi swag from its auction page. Yahoo "will no longer allow items that are associated with groups which promote or glorify hatred and violence, to be listed on any of Yahoo's commerce properties," the search engine portal declared.
By June of 2001, Yahoo had jumped on the geographical ID bandwagon, purchasing services from Akamai that allowed it to deploy locationally relevant advertising. A year later it was doing business with China, and had signed that country's Public Pledge on Self-Discipline for the Chinese Internet Industry:
5. If the Internet service provider discovers information which is inconsistent with the law on its website, it will remove it.
Article 10. We Internet access service providers pledge to inspect and monitor information on domestic and foreign websites when it provides access to those sites and refuse access to those websites that disseminate harmful information.
Article 11. We Operators of Internet access venues pledge to use our best efforts to take effective measures to create a healthy and civilized environment for Internet usage and to assist the users, especially the teenagers to use the Internet in a healthy manner.
A "healthy and civilized" environment in China, of course, meant an environment in which Yahoo and Google web searches for phrases like Tienanmen Square and "multiparty elections" produce carefully limited results.
A right to violate French law
Licra v. Yahoo! continued in the United States. In November of 2001, a US District Judge declared that the First Amendment protected Yahoo's right to free expression, and that the company did not have to obey French law.
Two years later, a French court dismissed criminal charges against Yahoo, ruling that, beyond the legality of the auctions in France, Yahoo never attempted to "justify war crimes [or] crimes against humanity."
But in 2006, the US Ninth Circuit Court of Appeals blocked Yahoo's effort to invalidate the law in the US. "The core of Yahoo's hardship argument may thus be that it has a First Amendment interest in allowing access by users in France," the Ninth observed.
Yet under French criminal law, Internet service providers are forbidden to permit French users to have access to the materials specified in the French court's orders. French users, for their part, are criminally forbidden to obtain such access. In other words, as to the French users, Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others.
"The extent—indeed the very existence—of such an extraterritorial right under the First Amendment is uncertain," the court concluded. "Further, First Amendment harm may not exist at all, given the possibility that Yahoo has now 'in large measure' complied with the French court's orders through its voluntary actions, unrelated to the orders."
When the US Supreme Court denied judicial review to the matter, the case ended. But far more than the validity of a censorship law had been upheld. The Yahoo/France saga "encapsulates the Internet's transformation from a technology that resists territorial law to one that facilitates its enforcement," Goldsmith and Wu conclude.
Now the big battles are over how much enforcement governments will deploy, not only in their own countries, but across national boundaries. Today the US has no problem pressuring the governments of Canada and New Zealand to toughen up their online intellectual property laws, and the UK is loudly calling for a discussion about the "norms of acceptable behaviour in cyber-space" and "bringing countries together to explore mechanisms for giving such standards real political and diplomatic weight."
In the end, the Internet is only as "global" as we want it to be. We can thank (or blame) France for putting that fact on the digital ground.
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