Just about every country on the planet is a member of theUnitedNations, which makes it easy to count how many independentgovernments exist in the world today. With longtime holdoutSwitzerland finally voting to join the United Nations earlier thisyear, it brings the current total to roughly 190. Now here's ascary question: What happens when all of those countries try toregulate the Internet?
Sadly, that is just what's happening. In a new Cato Institute study entitled,"Caught in the Seamless Web: Does the Internet's Global ReachJustify Less Freedom of Speech?" First Amendment guru RobertCorn-Revere, a partner with the D.C.-based law firm of Hogan &Hartson, documents the disturbing and growing tendency of countriesimposing speech and content controls on the Internet. Corn-Reverenotes: "Other nations have responded to the advent of the Internetin various ways, ranging from open hostility to attempts toregulate it in the same way as traditional electronic media. Suchdivergent national responses to technology and political freedomare nothing new and historically have had little impact on theUnited States. But when such differences are applied to a globalmedium of communications, the resulting legal conflict can havesignificant ramifications for freedom of speech in thiscountry."
The most prominent example of such international mischief so farhas been the efforts by the Frenchcourts to force the American-based web portal company Yahoo! to remove, or at least block fromthe view of French citizens, those portions of its website whereNazi memorabilia was for sale. Although a lower district court inCalifornia held last November that the French ruling could not beextraterritorially enforced here in America, former Yahoo! CEOTimothy Koogle, who resides in the United States, could still beconvicted, fined $40,000, and face up to five years in prison if heever sets foot in France in the future. Declining to dismiss thecharges against Koogle and Yahoo! the Paris Criminal Court held inFebruary 2002 that the case could go forward and noted that "theFrench judge is free to adopt his own principles of internationalcriminal jurisdiction to sanction offenses that are completely orpartially committed abroad and are likely to threaten nationalinterests" to the extent that "the website's message or contentsare made accessible, through the Internet, within Frenchterritory."
Under that standard, anything posted anywhereelse in the world that was potentially offensive to French"national interests" might be subject to regulation or evencriminal penalties by French officials. If such parochial speechcontrols were enforceable across the globe, "content providerswould have no practical choice but to restrict their speech to thelowest common denominator in order to avoid potentially crushingliability," argues Corn-Revere.
And it's not just the French who are engaged in suchextraterritorial web censorship. A recent Wall StreetJournal editorial noted that the government of Zimbabwe mightbe deporting journalists for publishing critical stories on the Neteven though they are not printed in any paper in that country.Also, the Journal's parent company, Dow Jones, is itselfis involved in an important Australian court case regarding libel and the Net; does libeltake place where the potentially libelous information was uploaded(in New Jersey in this case) or downloaded (in Melbourne,Australia)? Given the radically different libel laws on the booksin the United States versus the rest of the world, thatdetermination obviously makes a big difference. And the Vatican recently called for a crackdown on the Internet's"radicallibertarianism" and the Rome police force responded in kind by recently shutting downfive web sites that contained blasphemous material aboutCatholicism and the Madonna.
The Corn-Revere study highlights other cases of Net censorshipthroughout the world. China bans "content that guides people in thewrong direction, is vulgar or low," and uses this edict to try tostop online protest messages available on overseas websites,particularly those located in the United States, from which so muchpro-democracy speech emanates. Saudi Arabia bans any onlineexpression that is "contrary to the state or its system" andfilters all Net traffic going into and out of the country through acentral bank of servers. According to Harvard University's Jonathan Zittrain,"these servers review each web page request from each SaudiInternet user, and if the page is listed on thegovernment-maintained blacklist, a message explicitly denyingaccess will be displayed in the user's browser." Syria also bansmany types of content on the Internet, such as statements thatwould endanger "national unity." Syrian citizens can be jailed forsending e-mail to people overseas without government authorization.Finally, the Council of Europe recentlyratified a Convention on Cybercrime that includes a protocolrequiring that signatories criminalize online "hate speech,"however that ends up being defined.
It's obvious that everyone wants to have a say regarding whatcan be seen or said on the Internet. But can parochial standardsreally be applied to the web? Or is the web truly a borderlessmedium that cannot be regulated in any workable sense by localauthorities? Many important legal issues are at play, especiallywhen you expand the discussion beyond free speech to includecommercial regulation of the Internet. Some scholars have suggestedthat international treaties could be the answer. Others are callingfor a "U.N. forthe Internet," or some sort of global regulatory body toresolve such questions. Still others suggest that the best answeris to do nothing, since anarchy, at least so far, has theadvantages in terms of broadening the range of free speechglobally.
Then again, since global content cops won't stop meddlinganytime soon, the current "anything goes" system has a downside formany Internet companies and users: legal uncertainty. Tom Krwaweczof Blue Gravity Communications, which came under fire for hostingthe "blasphemous" sites that Italian regulators have orderedclosed, asks: "How are we to know what the laws of another countrymight be?" And as David Farber, former chief technologist at theFederal Communications Commission and the moderator of a popularglobal listserv on technology policy, recently told SiliconValley.com, "if this happens toomuch, and I start getting letters from overseas, it's going towater down my willingness to do things and say things." Thechilling effect on Internet free speech and expression is real.
What should American policymakers do? As Corn-Revere properlywarns: "Other nations may treat their citizens as fragile childrenif they wish, or worse, as enemies of the state. But U.S. courtsshould not permit the seeds of foreign censorship to be planted onU.S. soil by finding that such restrictions are enforceable here."While Americans have good reason to ignore the French ruling in theYahoo! case, however, the question remains: how will these disputesbe decided in the future? As Net connectivity across the globegrows, and human communication and interaction bridges thegeographic divides between countries and continents, governmentswill attempt to pigeonhole this new technology into old regulatoryparadigms. Defenders of free speech would be wise to start thinkingabout ways to convince them to do otherwise.