The Gallic gall. A French court has done the unthinkable. It has ruled that the French government has jurisdiction over cyberspace, or at least that part of the digital universe that overlaps with its physical borders.
Net libertarians are outraged. They charge that the Balkanization of the Net — in just about every sense of that grisly metaphor — is soon to follow. Not quite. There are dangers in excessive regulation of the Net, but they are not imminent. Nor, for that matter, do those dangers mean that there should be no regulation whatsoever. Intelligent, coordinated oversight is needed; bellicose rhetoric will only make that more difficult.
Last month, a French court ruled that Yahoo! Inc., the operator of perhaps the most popular Internet address in the world, must try to block French users from visiting its auction sites that sell Nazi memorabilia. The court reasoned that it had jurisdiction since the company had a French office, was doing business in France, its customers were French and the merchandise was illegal under French law.
Libertarians were dismayed. They countered that the court was regulating access to information — regulating speech — in the United States: It was an American Web site and the sellers were Americans. They argued that the decision discriminated against large companies. Yahoo! was vulnerable because it had offices in France; a small company, operating from beyond French borders, would not be subject to French law. But rather than being a weak point, that suggests the court was doing its utmost to be reasonable in extending its reach.
The judge was not indifferent to the implications of information technology for traditional jurisprudence. In fact, the most important influence on the court’s reasoning seems to have been technology. The court assembled a panel of three international experts to see if it was possible to block access to the material. They determined that filters could be 90 percent effective, even though one of the experts expressed concern about setting a precedent.
And, sure enough, days later German prosecutors began a probe into Yahoo!’s German subsidiary, which had offered a copy of “Mein Kampf” on one of its online auction sites, even though such sales are illegal in the country. A day after that, police here raided the offices of Yahoo! Japan on suspicion the portal was hosting illegal trade in child pornography. The protests against that decision were much more muted.
Some relish the irony of a foreign court claiming jurisdiction over the behavior of U.S. companies, an assertion of extraterritorial authority that U.S. legislators have made with ease. But the real issue is the claim that the Net cannot be regulated, or that such regulations are doomed to fail or cause problems worse than the cure. All are absurd.
The Internet is already regulated. There are hundreds of laws on the books that can be applied to the digital domain. There are some holes, as the “I Love You” virus episode in the Philippines demonstrated, but they can be plugged. The creation of standards will take time, and enforcement will be uneven, but that only puts a greater premium on international cooperation and coordination.
Ultimately, community standards should govern Net use. After all, who is better capable of judging what is tolerable in a given setting than the residents of that community? But the application of those standards — standards for the standards — can be developed and disseminated. Ideally, they should rely on self-policing and market mechanisms for enforcement, but pretending that that will suffice is pointless. Whether the problem is Nazi memorabilia or child porn, there will always be some people who will be eager and able to exploit loopholes and break the law. The task for Internet regulators is making that as hard as possible without infringing on the rights of others.
There are choke points on the Internet that can be used to fight individuals who have no respect for the law or community standards. Those people selling Nazi memorabilia were using Yahoo!, one of the largest companies in the digital world. Similarly, almost all business transactions go through financial vendors who can and should be subject to regulation. That will not be 100 percent effective, but no law is. The objective is to make it difficult for people to break the law and then ensure that there is a legal sanction when they are caught.
Policing the Net requires international cooperation. That, in turn, requires mutual agreement about what is possible and desirable about Internet regulation. At a minimum, there is a need to recognize that freedom on the Net is not absolute. Pretending that the digital world is beyond our reach is the easiest way to create the Balkanization and confusion that all decry.
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