International law causes headaches for US web sites

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International law causes headaches for US web sites

By George A. Chidi
March 2, 2001 1:01 pm PT

When in Rome: Web sites run afoul of the law internationally when they offend mores locally

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COURT RULINGS in France and Germany have attempted to make Web sites operating from outside their national borders liable to the laws within those borders, effectively telling Web site operators to filter out visitors from their countries.

International legal pressure and technical advances are forcing a difficult decision for governments, businesses, and individuals. Leaving the Internet as it is -- mostly unfiltered and unregulated -- accepts whatever damage is done to local law and cultural sensitivity. But creating legal borders to the Web by filtering visitors in accordance with their local laws risks a spiral downward to the lowest legal and cultural common denominator -- and in particular, asks U.S. site owners to turn their backs on their own cultural values.

The Internet could change from a World Wide Web to geographically segmented entities. The American Web would be completely visible to people connecting from the United States, partly invisible on the more restrictive French Web, still more restricted on the well-policed Chinese Web, and almost completely lost on the Afghan Web.

Economic hurdles to doing real global business online are already significant, and rulings such as these may force companies to add filtering software -- and more expense -- to their sites so as to stay clear of the law.

"In one sense, this battle is about the First Amendment in the global context," wrote Lee Tien, a staff attorney at the Electronic Frontier Foundation, in an exchange of e-mail. "What we call free speech, a lot of countries deem illegal. If U.S. firms like AOL or Yahoo -- or for that matter, colleges and universities that provide Internet service -- must affirmatively prevent U.S. speech from reaching foreign audiences, that's a big burden and a big chilling effect."

European laws

Germany's highest civil court, the Bundesgerichtshof, convicted Frederick T�ben in December 2000 of denying the historical reality of the Holocaust. Judges ruled that T�ben's Web site at the Adelaide Institute in Australia violated German law, even though the instrument of speech originated from beyond Germany's physical border.

In a similar ruling, France's high court ruled against Yahoo last year, requiring the company to use filtering technology to prevent visitors in France from accessing auctions on its U.S. site. Although Yahoo has a French site, authorities went after the U.S. site in court at the prompting of European activists. At the time, Nazi memorabilia, which is illegal under French law, could be found on the site.

"We have operations in over 20 countries and we don't expect one size to fit all," says Greg Wrenn, international legal counsel at Yahoo. "We design sites that have local content with a local business team, respecting local laws and mores."

Courts have customarily based rulings on a test of passive communication vs. active communication under similar circumstances, Wrenn adds. The question Yahoo expected the court to ask, according to Wrenn, was whether the U.S. site actively courted French citizens with French text and French advertisements, as the Yahoo France site does, or whether visitors from France were the active party, seeking out Yahoo's U.S. site.

Yahoo thought wrong. "The French judge decided they could apply the law merely because the user in France can get on the Internet and visit the site," Wrenn says.

Yahoo's fate may be unique: Other e-commerce companies have avoided a similar fate when they established local sites with local subsidiaries. "Wherever we have operations, we have to be localized," says Margaret Dawson, international PR director for Amazon.com, which has local Web sites in most of the 150 countries it has customers. "You've got to have editorial teams on-site. You've got to have localized customer service."

A company of more modest means, such as Egghead.com with a market value of $43 million, can't afford the cover charge for the global e-commerce discotheque. "There are so many restrictions involved with shipping with customs ... and we're not a profitable company yet," says Joanne Hartzell, a spokeswoman for Egghead.com. "When you have to pay duty taxes and that sort of thing ... we've just found that it's difficult. It takes capital."

But there's little stopping businesses or individuals from breaking the laws of foreign nations that regulate online content from a jurisdiction where the content is legal.

Enforcing the law

"What is law, ultimately, but the exercise of force?" says Jonathan Zittrain, Harvard Law School professor and head of the Berkman Center for Internet and Society. In the case of Yahoo and the French court, "the question would be how comfortable would you be making an enemy of France? A lot of people don't want to be targets of the law," he says. "It gets down to a raw question of whether the distant country can enforce its will."

Yahoo has since banned Nazi memorabilia from auctions, but its attorney Wrenn says the French case was only indirectly responsible: Bad publicity and a desire to avoid profiting from the trade in Nazi gear led to the change, he says.

Wrenn insists that the court was wrong, and is asking for a formal declaration that the United States will not enforce the French court's order. Although a ban is in place, Wrenn says it has not complied with the French judge's order and that Yahoo doesn't plan to. "We didn't make changes that the court order required us to do because we didn't think they were right," he says.

America would have to have a treaty obligation to France to uphold the order against Yahoo. Zittrain calls this kind of international law "murky" and notes that progress toward international legal standards is stalled among the competing interests of business, civil rights, police, and regional protection.

It is now possible to reliably tell in what country -- and perhaps what state or province, city, or even neighborhood -- a Web site visitor is located, based on the browser's IP address. Although this new IP technology may permit companies to localize Web sites better, the real restrictions on the Internet are economic. The largest companies doing business online will be targeted by national law-enforcement agencies and local interest groups because they have money and something to lose by not complying.

Smaller companies simply can't afford effective global e-commerce, so they won't get into trouble. Content sites with local advertisers in international markets will have to play by local rules or risk losing ad revenue. Content sites without local ad revenue can afford to ignore local restrictions.

George Chidi is a U.S. correspondent for the IDG News Service, an InfoWorld affiliate. Send comments to george_chidi@idg.com.

	Location by IP address -- Rick Perera, IDG News Service, an InfoWorld affiliate Cyberspace may be ripe for subdivision, thanks to new technology. Web site operators can now geographically pinpoint users based on IP addresses -- the unique numbers assigned to each Web client and server -- and tailor content to the appropriate country, city, or even neighborhood. When a user in Berlin calls up the Web site of RealMapping International, for example, the site automatically appears in German. That's just one of the ways the Amsterdam, Netherlands-based geographic locator service helps clients fine-tune their Web content, says RealMapping founder and CEO Sjoerd van Gelderen. Van Gelderen cited the example of a company marketing discount flights via banner ads. As well as automatically adjusting the price according to how many seats are left, the advertiser can directly target customers in the cities served by the airline, he says. "It's a very powerful combination." * IP identification RealMapping, and competitors including Akamai Technologies, Digital Envoy, InfoSplit, NetGeo, and Quova -- most of them small and privately held -- have all launched similar services in recent months. The companies build databases of IP addresses and their physical locations, based on data sifted by machines and in some cases by human operators. The concept isn't new -- users could always access publicly available Whois databases to find domain name registrations associated with a particular IP address. But that method is "about as accurate as the warranty cards you fill in for Sony when you buy a TV, for example," says NetGeo President and CEO Mark Cramer. "We are looking at many different sources, Whois being one of them, using also a technique we have developed internally [that] looks at various routers that transfer packets on the Internet, to gather as much information as possible about the physical location of an individual on the Internet." Cramer promises "99 percent-plus" accuracy on pinpointing a user's country of origin; Akamai, Digital Envoy, and InfoSplit make similar claims. The reliability drops off as you get closer to home: Akamai says it can locate a user's state or province about 85 percent of the time, and InfoSplit claims 95 percent accuracy for states and 85 percent for cities. All are promising further improvements. * Potential censorship What does this brave new world mean for the future of the Net? Civil rights activists are alarmed by the implications. "There is a real danger to freedom of speech," says Maurice Wessling, director of the Amsterdam-based group, Bits of Freedom. "If you have that kind of technology available, you can build legislation on top of that, and that means that companies could be forced to show only particular content to particular nations." The French case against Yahoo (see main article) is "only the beginning," he says. Jean-Francois Julliard, who monitors Internet issues for Paris-based media freedom group Reporters without Borders, agrees. "You have some other situations. For instance, in Saudi Arabia they will decide to forbid access to pornographic sites. So I think it's dangerous to give a particular government [the power] to decide what is forbidden and what is authorized because every government in the world will decide for its own interest." Providers of geographic location services are quick to insist that they pose no threat to privacy, that their databases carry no more information on individuals than do, say, advertisers' mass-mailing lists. But they also realize their products have implications for the worldwide flow of information. "I would say with the Yahoo case that both the French and the United States have the right to say, 'OK, this is legal in our country,' " says RealMapping's van Gelderen. "Those are both democratically chosen governments, so we have to respect the laws that they have. And I would say that our technology enables this kind of respect." Asked whether he would refuse to allow his technology to be used, for example, to block Chinese users from accessing human-rights material, van Gelderen says, "Absolutely. We want to respect laws that are done by a democratically chosen government, and we have to respect human rights at all times." He added that the company's contracts contain a clause to that effect but later called back to reverse himself. "It's not correct yet; we're working on it," he says. NetGeo's Cramer says he recognizes his product could be used to enforce national limitations on information, but added that censorship is a fact of life in every country. "My personal opinion is it really boils down to the Internet not being a supernational cyberspace, but rather to being a means of communication like the telephone," Cramer says. "Much as in France, I can't pick up the phone and order Nazi memorabilia -- I can't order it over the Internet either. The United States has the right to pass laws prohibiting child pornography over the Internet, just as it can in magazines or whatever. I think this is a natural extension of the technology and of international laws and national laws." Of course, savvy users can always get around censorship by using evasive tools, such as the IP address-masking Web site www.anonymizer.com. But the high-tech arms race is likely to continue, says Reporters without Border's Julliard, with lawmakers battling hackers for the state-of-the-art technology. Government controls, although never perfect, will likely be enforceable against the majority of users. To Cramer, that's only to be expected as the Net joins the real world. "For a long time, everyone always considered the Internet to be special, unique, [beyond] the laws of physics, economics, or anything else. I think Nasdaq has shown us it does obey the laws of economics," he says. And by extension, human laws as well.