WATPA: FW: NY Times - "Welcome to the World Wide Web. Passport, Please?"

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From: Norman J. Jacknis (norm@jacknis.com)
Date: Sat Mar 17 2001 - 18:12:36 EST

There are all sorts of issues affecting the Internet these days. This was an interesting article.



March 15, 2001
Welcome to the World Wide Web. Passport, Please?

Last fall, a French judge named Jean-Jacques Gomez made Internet history, and attracted a flock of critics, when he ordered the Yahoo Web site to prevent
French residents from viewing Nazi memorabilia in its online auctions.

To Yahoo, the appearance of Nazi uniforms and other objects was simply an
unintended byproduct of the borderless Internet: the items, which were being
offered by sellers all over the world, happened to be on French computer

But Judge Gomez was intent on upholding French law, which largely prohibits
the display of Nazi insignia. He ordered Yahoo to keep French viewers from
seeing Nazi items and to keep any pro-Nazi comments from appearing on any
Yahoo pages available in France - or to pay fines of more than $13,000 a

His decision raised the question, How can one jurisdiction decide what can
or cannot be displayed on the World Wide Web?

In the press, American civil rights lawyers railed against Judge Gomez's
ruling. "We now risk a race to the bottom," said Alan Davidson, a lawyer for
a nonprofit group called the Center for Democracy and Technology. "The most
restrictive rules about Internet content - influenced by any country - could
have an impact on people around the world."

But as the dispute has continued to brew, Judge Gomez has found himself with
some like-minded company. In recent cases, judges in Germany and Italy have
come to similar conclusions, declaring that national boundaries do indeed
apply to the virtual world as well as the physical one. A judge in one case
said that German hate-speech laws could be applied against an Australian who
posted material disputing that the Holocaust occurred. An Italian judge
ruled that his country's libel laws pertained to any online information that
could be read by an Italian.

"There is this na´ve idea that the Internet changes everything," said Ronald
S. Katz, one of the lawyers representing the French groups that have sued
Yahoo. "It doesn't change everything. It doesn't change the laws in France."

Suddenly, the seemingly borderless Internet is ramming up against real
borders. The imposition of jurisdictional laws could mean that online
publishers decide either to keep some material off the Internet entirely,
for fear of criminal and civil charges filed in different countries or even
different states, or to install online gates and checkpoints around their
sites, giving access to only certain viewers.

The legal battles are being fostered by new technology that appears to make
those online checkpoints possible. In the past year, software programs have
been released that are supposed to figure out where people are at the
instant they gain access to a Web site. By conducting real-time analyses of
Internet traffic, a technique sometimes called geolocation, these software
programs can try to determine the country, the state and, in limited cases,
even the city from which a person is surfing the Net.

Based on that extrapolated location and with the use of programs like
keyword filters, the software can then block Web pages from being seen,
essentially putting a tall fence around part of the Web.

"We are now seeing geographical zoning online that mirrors geographical
zoning offline," said Michael Geist, a law professor at the University of
Ottawa who specializes in online issues. "The view of the Internet as
borderless is dying very quickly."

Few examples of geographical zoning exist so far, but the impact could be
far-reaching. People in countries that prohibit gambling may find that they
are blocked from visiting sites like BlackJack.com. A shopper in Germany may
be directed away from comparison-shopping sites because German law prohibits
side-by-side price comparisons in advertising. Even within the United
States, the software could provide communities with new justification for
enforcing local obscenity standards online. If that happens, residents of
one city may not be able to see material available in another.

That, of course, is not the way cyberspace is supposed to work, at least not
according to the early developers of the Internet, who relished the idea
that information could be free of all restraints. "The Internet was designed
without any contemplation of national boundaries," said Vinton Cerf, a
senior vice president of WorldCom who is credited with designing much of the
Internet's structure. "The actual traffic in the Net is totally unbound with
respect to geography."

The only passports on the Internet are I.P. addresses, sets of four numbers
separated by periods, which have no direct correlation to where a person's
computer is located. I.P. addresses are intended to be used to keep straight
all the data that flows between machines. Dr. Cerf said I.P. addresses were
not like phone numbers, with area codes.

Although geolocation technology was primarily developed to deliver localized
ads, software makers have started to offer programs that could let companies
comply with local restrictions. In the past few months, start-ups like
RealMapping, Quova and BorderControl have started selling versions of the
software. Akamai, a company that provides services for more than 3,600 Web
sites, came out with its own geolocation product, called EdgeScape, last

The software, which is typically installed on a Web site's servers, detects
when a Web surfer arrives at the site, and analyzes the surfer's connection
to the site. Most of the time, the I.P. addresses will yield matches that
simply give the location of the company (often an Internet service provider)
that obtained the address instead of the individual using it, so other
techniques are also employed. One strategy is to trace all the steps that a
packet of data has taken and extrapolate the likely location. For example,
if the last few routers a packet passes through are in Pennsylvania, chances
are good that the recipient is, too.

Geolocation products are a nascent technology, but Akamai is already
providing its EdgeScape service to 20 clients, some of whom are using them
for advertising purposes, said John Shumway, vice president for product
management for the company. "This is something that is gaining tremendous
momentum," he said.

Of course, there are still serious questions about whether these
technologies can, in fact, determine locations with any certainty. America
Online users in France, for example, could decide to dial a number in the
United States to gain access to the Internet. People using a satellite-based
Internet service provider would be anonymous to an ordinary location
tracker. Programs like Anonymizer and SafeWeb, which disguise a computer's
I.P. address, can also fool geolocation systems - a point that software
companies concede. And even if a person's state or country is determined,
filtering software has proved to be far from perfect.

But it was the very existence of geolocation technology, its flaws aside,
that influenced Judge Gomez's decision in the Yahoo case. To determine the
feasibility of online zoning, the judge convened a panel of three technology
experts, including Dr. Cerf. The panel reported in November that automated
software could probably pinpoint the resident country of about 70 percent of
online users in France and added that if Yahoo also asked its users to state
their nationality, the site could keep content away from as many as 90
percent of them. (Despite his participation on the panel, Dr. Cerf objected
to the final report, which he said did not focus on the flaws or the larger
implications of installing online gates.)

Some experts in Internet law call the Yahoo case a turning point in how
courts handle questions of international jurisdiction.

Kimberlianne Podlas, an Internet-law professor at Bryant College in
Smithfield, R.I., said that the case involved what in legal circles is
called the effects test. If someone in one jurisdiction feels the effect of
the action of someone in another jurisdiction, the laws of the first still
apply. For example, if a person in New York shoots a gun across the state
line and injures someone in Connecticut, the laws of Connecticut can be
invoked because the injury occurred there.

Using that test, judges may decide to look at the locations of the viewers
themselves, instead of considering the locations of the companies that serve
Web pages to online viewers. That situation alarms many civil rights
advocates. Jerry Berman, executive director of the Center for Democracy and
Technology, said he was worried that companies might feel forced to comply
with each country's standards or to simply shut down troublesome pages. "The
Internet cannot operate that way," he said.

The idea of one country exerting its laws over the Web is not new. In fact,
American companies, using the muscle of the United States court system, have
done it, too.

One such case involved iCrave, a Canadian Internet company that was designed
to capture North American television signals and rebroadcast them online to
Canadians. Canada's copyright laws allow licensed cable companies to
broadcast such signals simultaneously to Canadians without permission from
the original broadcasters (although the original broadcasters do have to be

Expecting to be covered by the legal protections afforded to cable
companies, William Craig, the founder of iCrave, insisted that he was aiming
his service only at Canadians. But American entertainment executives sued
iCrave, accusing it of violating United States copyright laws. In a
settlement last year, Mr. Craig was forced to close his Web site.

American companies have also shown little interest in conforming to other
countries' privacy laws. In most European countries, for example, companies
are not allowed to sell customers' names and other personal information
without customers' permission. In the United States, selling names without
permission is legal and commonly done. So American companies have tried to
carve out a compromise that keeps them free of liability from European
lawsuits if they promise to regulate themselves - a move that some European
legislators say will lead to weaker standards.

Yahoo is fighting Judge Gomez's ruling in a Federal District Court in San
Jose, Calif., arguing that the French order cannot be enforced for several
reasons, including conflicts with the First Amendment. And the order remains
unenforced in France. The groups have not yet asked that the daily $13,000
fines be levied, in part because Yahoo announced in December a worldwide ban
on material with hate-promoting references, including Nazi items, in Yahoo's
auctions and classified and shopping areas.

(Yahoo's ban does not, however, apply to coins and stamps, an issue that the
French court did not explicitly address. Nor does it apply to online forums,
so the company is still in violation of the order.)

The nature of the Internet may now hinge on the staying power of rulings
like Judge Gomez's and on the success of geolocation software. In either
case, the day may not be long off when Americans who want to visit a
gambling Web site or watch a certain Webcast have no choice but to travel
out of the country and use a foreign computer - a notion reminiscent of the
time before the Internet, when your physical location made all the

Copyright 2001 The New York Times Company


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