The Wall Street Journal Europe, op-ed page
August 17, 2000:
Cyberspace Meets Sovereignty
By Kenneth Neil Cukier
Cyberspace is considered a virtual place, and the Internet beyond the reach of government control. But a court in France may be about to shatter that myth -- with widespread repercussions for online businesses and Web surfers everywhere.
The case that moved the court to act is a sensitive one: two French anti-racist organizations brought charges against the Web company Yahoo! and its French subsidiary for operating a U.S. auction site that contains Nazi paraphernalia. Such an activity is legal in the United States, where the site is located, but illegal in France, where websurfers can access Yahoo's site. Last week, a Paris judge decided to commission a panel of experts -- one French, one European and one American -- to determine by November whether it is feasible to block online content based on the location of users. The judge wants to order Yahoo to prevent French users from accessing that portion of the U.S. site.
The case is a tale for our times. It pits the new, ethereal, global medium against the tangible world's national laws and a sense of sovereignty that has been around for centuries, thereby exposing a vulnerability that the Net's freewheeling ethos long ignored. It's just one of a number of recent incidents involving online usage that, though legal in the jurisdiction where the company is located, clashes with laws in a country where the material is accessed.
The large U.S. Web auction site eBay removed Nazi memorabilia from its site last year after German groups threatened legal action; like France, Germany bans trade in Nazi wares. France in particular has adopted a hands-on approach to controlling Internet usage, going so far as to sue a U.S. university's study program in Metz for violating French-language laws by posting its Web site in English.
As the number of these "digital border" skirmishes increases, courts and politicians increasingly look for ways to apply their laws to the World Wide Web. They often impose pricey technological solutions on firms to do so. The fear among Internet firms is that the French case will be used as a precedent elsewhere, forcing Web sites to self-police all online content and activities and make them comply with any number of laws from any country or community. The site would then be liable for damages wherever the Web is accessible. This, of course, is economically untenable and douses the idea of a global village for companies and individuals. In the current case, Yahoo has argued before the court that it is technically unfeasible to block access to users based on geography.
This is not entirely true. What the court's experts will explain is this: There are numerous ways, all costly and cumbersome but all more or less viable, to determine the location of users on the Internet. Want to know who originally sent an e-mail entitled "ILOVEYOU"? All it takes is time and money, as international law enforcement officials found out after successfully tracking down the creator of this year's least-lovable virus.
The effectiveness of pinpointing the location of users is commensurate with its cost. What the Paris court's experts will examine is a simpler solution; less expensive, and vastly less effective than a global manhunt. But its implementation could place a huge cost burden on online business, thwart the development of electronic commerce, and even harm the technical underpinning of the Net itself.
The approach uses so-called "Internet Protocol" numbers which, invisible to users, route the digital traffic as it shimmies from a computer to a Web site. These numbers, the glue of the Net, are assigned to Internet service providers and corporate networks from a central registry. It is possible for Web sites to match the number with the location of the entity that was assigned the digit, thus giving a rough idea of the user's location. In fact, this procedure is already used by online advertisers to target local-language advertisements in different regions of the world. A host of companies offer this procedure as a commercial service.
But the system leaves a wide margin for error. These IP numbers, as critical technological infrastructure, were never intended to be used in this way, so there is no certainty that it corresponds accurately with a user's location. Instead, it will often unfairly restrict access to certain individuals who should get through while permitting access to those who are legally supposed to be blocked. For example, the approach wouldn't work for AOL subscribers outside the U.S. (and who represent around 15% of the online population in France). They appear as if they are based in the U.S. no matter where they may be, since America Online was assigned a block of IP numbers in the U.S. Many similar loopholes to the system exists for a variety of other reasons.
If the French court were to adopt the IP number approach, the result would be horrific. Trying to match IP numbers to users is extremely costly and technically challenging to implement, and would delay service quality for users. Yahoo's U.S. site, for instance, serves close to 50 million users a month (and a whopping 65 million page views per day), making a screening procedure to examine every mouse click extremely difficult to manage -- particularly if it were not just for France but to uphold a gaggle of different local laws.
Moreover, a decision to use the Internet's technical underpinnings to treat judicial and political questions could cause severe problems. Internet engineers have so far configured their networks to deliver optimal service, not resolve legal issues, and the Internet's topography is based on traffic flow, not borders. This is what the global net (village, etc.) is all about. To rejigger the system so that each IP number corresponds with a known geographical location would harm the fragile underlying technical operation of the global Internet.
What makes the French court's insistence to block access so absurd is that Yahoo has already taken important steps to prevent French users from accessing the disputed content. The material is not posted on Yahoo France's site, but only on the U.S. version. And in the case of a Web search for Nazi themes on the French site, visitors are now greeted with a warning that the content may be illegal to access.
Perhaps the French court's experts will acknowledge the costs and ineffectiveness of trying to block a users' access over an inherently open medium like the Internet. Its very openness was the reason for its vast success against inferior technical rivals like France's archaic Minitel system. But that will not resolve the underlying cultural issue driving the debate: A degree of paternalism in controlling what citizens do, and are permitted to see, now extended into cyberspace. This is, after all, the country that maintains quotas on foreign-produced music and film, and this year passed a censorship law making it illegal for the media to publish photographs of people in disparaging situations that violate their privacy.
Even if Yahoo wins this round, the broader issue will not go away without the tacit understanding of courts and policy makers that in cases where the Internet challenges national laws, the benefits of unencumbered access -- alongside reasonable attempts to comply with the law as Yahoo has done -- vastly outweigh the risk of debilitating the network with unworkable remedies.
Mr. Cukier is the international editor of Red Herring magazine, which covers technology and business.