13 May Week 6 – Anecdote with Bibliography

I feel silly using this one…most of the information comes from Goldsmith and Wu, “Who Controls the Internet?” Perhaps i should find something else…but it’s just too darn perfect…poorly written…need to spend more time on it.

First Draft / First Half

In February 2000, Mark Knobel, a researcher from Paris for the Wiesenthal Center, found Nazi paraphernalia for sale on the English-language U.S. Yahoo auction site as well as Nazi and anti-Semitic revisionists websites that offered free downloads of Mein Kampf and Protocol of the Elders of Zion, both in French (Frydman & Rorive, 2002). He threatened Yahoo with a media blitz if they did not pull the items from their auction website and shut down the racist websites that were being hosted by Yahoo as they were in direct violation of French law that prohibits the sale or display of anything that provokes racism. Jerry Yang and David Filo, the founders of Yahoo merely shrugged off these threats. They were products of the Silicon Valley phenomenon, and had a strict sense that the internet could not be controlled. Mark Knobel, apparently, had a very different idea about the internet. On April 11, 2000, acting on behalf of La Ligue Contre le Racisme et L’Antisemitisme (LICRA) (The League Against Racism and Anti-Semitism) and L’Union des Etudiants Juifs de France (UEFJ) (The Union of Jewish Students of France), he sued Yahoo in the County Court of Paris.

This was the first case to questions the extent of one’s country’s laws over another country’s citizens when the interaction is taking place solely across the internet. Christophe Pecnard, the lawyer for Yahoo on the case, stated, “The real question put before this court is whether a French jurisdiction can make a decision on the English content of an American site, run by an American company for the sole reason that French users have access via the Internet” (Enos, 2000). To do so would institute a race to the bottom, forcing companies to institute the strictest of all of the world’s laws in order to be able to do accessible to any of the world’s countries. This in turn could lead to an eventual decay into fascism as the control mechanism of the internet. Marc Levy, representing LICRA and UEFJ, however, believed that he was working to save the internet from being a lawless place.

On May 22, 2000, Judge Jean-Jacques Gomez ruled that Yahoo had a responsibility to ensure that French law as not violated on the internet by the company, and that they must make it impossible for French web surfers to access illegal Yahoo Nazi auction sites on yahoo.com. Lawyers for Yahoo argued that it was impossible for them to filter users by geography as the internet is not located in any geographical location. Physical borders are not announced – information in cyberspace moves from portals to portals without any indication of where the portals are existing. The judge gave Yahoo two months to figure out how to make it possible.

On July 24^th, Yahoo returned to French court to insist that it is impossible to identify and filter French users and content. However, in the two months since the original ruling, Cyril Houri, the founder of Infosplit, had come forward with a new geo-locating software that did, in fact, make it possible to identify users’ locations. Insert section explaining geo-location software and how it works. Infosplit, founded in 1999, developed software that could translate IP addresses into geographical locations (Svantesson, 2004). With this technology it was believed that up to 70% of French users could be screened out of the sites, thus reaffirming that French law had been broken and that honest self-declaration by users could cover the other 30%. Implementing this new software would cost Yahoo $500,000 and six months (Fryden & Rorive, 2002).

In August of 2000, yahoo counter-sued in a San Jose Federal Court to block the French judgment as it was not enforceable and was counter to the First Amendment. By November, the court had issued the ruling in favour of Yahoo. Robert Katz, the American lawyer representing LICRA and UEFJ in the U.S. said that the case should never have been heard in an American Federal Court in San Jose as his clients had never even heard of or been to San Jose. Yahoo, however, has its headquarters near there in Sunnyvale, California. In the mean time, Judge Gomez gave Yahoo until February 2001 to comply with their order or face fines of 100,000 francs a day. Because the American-based company owned 70% of yahoo.fr as well as a large number of other business investments in France, there was considerable threat to Yahoo. In 2001, Yahoo relented and began using geolocating software to block French users from accessing sites and materials that would be deemed hate-speech.

This court case has set an international precedence toward international regulation of the internet. But it is one without an overseer. Freedom on the internet is being eaten away one case at a time without trans-national agreements. And yet there are several non-profit groups who are attempting to protect the freedom of speech on the internet, as though the internet were a nebulous frontier without borders. What is at stake here is the question of geography and jurisdiction.

Yahoo’s French lawsuit was the beginning of a long downward spiral. When Yahoo went public in 2000, shares opened at $475 (Goldsmith & Wu, 2006). In 2002, shares dropped to $9.71. That same year, Yahoo entered into an agreement with China in a document called “Public Pledge on Self Discipline for the Chinese Internet Industry.” In signing this pledge, Yahoo agreed to refrain from “producing, posting or disseminating pernicious information that may jeopardize state security and disrupt social stability,” including allowing information that is considered obscene, superstitious or to break the law. Members are held responsible for removing inappropriate materials from websites hosted by them as well as block international sites that have “harmful” information on them (“China Sites Pledge to be Nice”, 2002). Kenneth Droll, the Executive Director of Human Rights Watch accused Yahoo of becoming an agent of Chinese law enforcement.

In September 2002, yahoo gave the Chinese government information leading to the arrest of Wang Xiaoning for dissident emails. His emails and discussions advocated for multi-party elections and democratic reform in China. All of email and surfing histories were released leading to a 10 year prison sentence in a forced labour prison (Anderson, 2007). In 2005, yahoo offered Chinese citizens a full suite of censoring products which includes both human and software censors monitoring chat room conversations and emails. Jerry Wang responded that “To be doing business in China, or anywhere else in the world, we have to comply with local law. I do not like the outcome of what happens with these things, but we have to follow the law” (Goldsmith & Wu, 2006). This is a far cry’s difference from the stubborn stance that Yahoo took in 2000.

But Yahoo is not alone. In February 2006, the House of Representatives Committee on International Relations held a hearing with Yahoo, Microsoft, Google and Cisco to demand clarification in their roles in China. The committee expressed its displeasure that the internet giants had “enthusiastically volunteered for China’s censorship brigade” (Malone, 2006). The companies were further scolded for putting profits before human rights and for failing to use their creative technological know-how to improve human rights rather than to hinder them. The subcommittee reprimanded Yahoo for turning over emails from Shi Tao leading to a ten year prison sentence, Google for offering a censored version of its search engine, and Microsoft for removing a blog from its MSN spaces that was written by Xiao Jing, a Chinese journalist. There are currently more than 80 dissidents in jail in China for postings on the web (Gross, 2006).

All of this points to the heady complications faced by internet providers and the public they serve. Insert transition to Reno v. ACLU

In 1996, the Federal Telecommunications Act was put into effect. It was the first major overhaul to the 1934 Communications Act and was an attempt to address changes in technology. The intent, stated at the beginning of the Act, is to “To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies” (Telecommunications Act 1996). Among its major components is the belief that competition should replace regulatory schemes, thus allowing companies in one communications sector to provide services in another (i.e., telephone companies are now permitted to offer internet services).

Works Cited

Anderson, Nate. “Human Rights Group Sues Yahoo Over Jailing of Chinese Dissident.” Ars Technica 19 April 2007

“China Sites Pledge to be Nice.” Associated Press 15 July 2002 Wired Magazine

Enos, Lori. “Yahoo! Forced to Bar French from Nazi Auctions.” Ecommerctimes 23 May 2000

Frydman, Benoît & Isabelle Rorive. “Fighting Nazi and Anti-Semitic Material on the Internet:

the Yahoo Case and It’s Global Implications.” Keynoteat Address at Cardozo School of

Law Conference Hate and Terrorist Speech on the Internet: The Global Implications of the Yahoo Ruling in France presented 11 February 2002

Gross, Grant. “US Lawmakers Scold Tech Companies for China Censorship.” PC World

Communication, Inc. 16 February 2006 PC World

Malone, Steve. “Google, Yahoo, Microsoft Under Fire in Washington.” Dennis Publishing

Limited 16 February 2006 pcpro.com

Svantesson, Dan. “Geo-Location Technoloies – a Brief Overview.” Bond University 09 June

2006