190 Internet Censors? Rising Global Threats to Online Speech

July 26, 2002 • TechKnowledge No. 38

Just about every country on the planet is a member of the United Nations, which makes it easy to count how many independent governments exist in the world today. With longtime holdout Switzerland finally voting to join the United Nations earlier this year, it brings the current total to roughly 190. Now here’s a scary question: What happens when all of those countries try to regulate 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 Reach Justify Less Freedom of Speech?” First Amendment guru Robert Corn‐​Revere, a partner with the D.C.-based law firm of Hogan & Hartson, documents the disturbing and growing tendency of countries imposing speech and content controls on the Internet. Corn‐​Revere notes: “Other nations have responded to the advent of the Internet in various ways, ranging from open hostility to attempts to regulate it in the same way as traditional electronic media. Such divergent national responses to technology and political freedom are nothing new and historically have had little impact on the United States. But when such differences are applied to a global medium of communications, the resulting legal conflict can have significant ramifications for freedom of speech in this country.”

The most prominent example of such international mischief so far has been the efforts by the French courts to force the American‐​based web portal company Yahoo! to remove, or at least block from the view of French citizens, those portions of its website where Nazi memorabilia was for sale. Although a lower district court in California held last November that the French ruling could not be extraterritorially enforced here in America, former Yahoo! CEO Timothy Koogle, who resides in the United States, could still be convicted, fined $40,000, and face up to five years in prison if he ever sets foot in France in the future. Declining to dismiss the charges against Koogle and Yahoo! the Paris Criminal Court held in February 2002 that the case could go forward and noted that “the French judge is free to adopt his own principles of international criminal jurisdiction to sanction offenses that are completely or partially committed abroad and are likely to threaten national interests” to the extent that “the website’s message or contents are made accessible, through the Internet, within French territory.”

Under that standard, anything posted anywhere else in the world that was potentially offensive to French “national interests” might be subject to regulation or even criminal penalties by French officials. If such parochial speech controls were enforceable across the globe, “content providers would have no practical choice but to restrict their speech to the lowest common denominator in order to avoid potentially crushing liability,” argues Corn‐​Revere.

And it’s not just the French who are engaged in such extraterritorial web censorship. A recent Wall Street Journal editorial noted that the government of Zimbabwe might be deporting journalists for publishing critical stories on the Net even though they are not printed in any paper in that country. Also, the Journal’s parent company, Dow Jones, is itself is involved in an important Australian court case regarding libel and the Net; does libel take 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 books in the United States versus the rest of the world, that determination obviously makes a big difference. And the Vatican recently called for a crackdown on the Internet’s “radical libertarianism” and the Rome police force responded in kind by recently shutting down five web sites that contained blasphemous material about Catholicism and the Madonna.

The Corn‐​Revere study highlights other cases of Net censorship throughout the world. China bans “content that guides people in the wrong direction, is vulgar or low,” and uses this edict to try to stop online protest messages available on overseas websites, particularly those located in the United States, from which so much pro‐​democracy speech emanates. Saudi Arabia bans any online expression that is “contrary to the state or its system” and filters all Net traffic going into and out of the country through a central bank of servers. According to Harvard University’s Jonathan Zittrain, “these servers review each web page request from each Saudi Internet user, and if the page is listed on the government‐​maintained blacklist, a message explicitly denying access will be displayed in the user’s browser.” Syria also bans many types of content on the Internet, such as statements that would endanger “national unity.” Syrian citizens can be jailed for sending e‐​mail to people overseas without government authorization. Finally, the Council of Europe recently ratified a Convention on Cybercrime that includes a protocol requiring that signatories criminalize online “hate speech,” however that ends up being defined.

It’s obvious that everyone wants to have a say regarding what can be seen or said on the Internet. But can parochial standards really be applied to the web? Or is the web truly a borderless medium that cannot be regulated in any workable sense by local authorities? Many important legal issues are at play, especially when you expand the discussion beyond free speech to include commercial regulation of the Internet. Some scholars have suggested that international treaties could be the answer. Others are calling for a “U.N. for the Internet,” or some sort of global regulatory body to resolve such questions. Still others suggest that the best answer is to do nothing, since anarchy, at least so far, has the advantages in terms of broadening the range of free speech globally.

Then again, since global content cops won’t stop meddling anytime soon, the current “anything goes” system has a downside for many Internet companies and users: legal uncertainty. Tom Krwawecz of Blue Gravity Communications, which came under fire for hosting the “blasphemous” sites that Italian regulators have ordered closed, asks: “How are we to know what the laws of another country might be?” And as David Farber, former chief technologist at the Federal Communications Commission and the moderator of a popular global listserv on technology policy, recently told Sil​i​con​Va​l​ley​.com, “if this happens too much, and I start getting letters from overseas, it’s going to water down my willingness to do things and say things.” The chilling effect on Internet free speech and expression is real.

What should American policymakers do? As Corn‐​Revere properly warns: “Other nations may treat their citizens as fragile children if they wish, or worse, as enemies of the state. But U.S. courts should not permit the seeds of foreign censorship to be planted on U.S. soil by finding that such restrictions are enforceable here.” While Americans have good reason to ignore the French ruling in the Yahoo! case, however, the question remains: how will these disputes be decided in the future? As Net connectivity across the globe grows, and human communication and interaction bridges the geographic divides between countries and continents, governments will attempt to pigeonhole this new technology into old regulatory paradigms. Defenders of free speech would be wise to start thinking about ways to convince them to do otherwise.

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