RE: <nettime> Yahoo Ruling: "Don't Roll Your Eyes..."

[marnoldm <marnoldm@du.edu>]

Ben Laurie, one of the experts who testified in the trial before Judge
Gomez has recently retracted his opinion regarding the feasibility of
preventing French web surfers from accessing Nazi-related items on Yahoo.  
In the following article (original available at
<http://www.apache-ssl.org/apology.html>), Mr.  Laurie calls the proposed
solution "half-assed and trivially avoidable."


---


An Expert's Apology[1]

The Yahoo! Nazi Case

The background to this is that Yahoo! were ordered by the French court to
prevent French people from accessing auction sites selling Nazi
memorabilia, which is illegal in France. Yahoo! said that it was
impossible to fully comply with this ruling, so the court appointed three
experts, one French, one European and one American, to advise it. I was
appointed the European expert.

The remarkable lack of deep thought on this matter that has been evidenced
by the press has prompted me to write up my own views. Enjoy.

The Experts' Advice

It is important to understand that the experts were asked a very simple
question: is it technically possible for Yahoo! to comply with the
judgment against them, and, if not, to what extent can compliance be
achieved?

I took the view that it was my duty to put aside any political agenda I
might have and simply answer the question to the best of my ability. My
answer was, in essence, this: no, compliance is impossible. But I was not
allowed to leave it at that; remember that if it was not possible to
comply completely, I was asked to say to what extent compliance is
possible. The best that can be achieved is a rather flakey guess at
nationality, using IP address or domain name (we estimated this was around
80% accurate for France, with some obvious huge exceptions, like AOL
subscribers). Failing that, one can simply ask the websurfer whether she's
French, and, if so, plant a cookie to that affect.

Of course, both of these can be trivially circumvented. The first by using
an anonymizer, for example http://www.anonymizer.com/ (note that I am in
no way recommending this particular one, it just happens to be the first I
found, after 10 seconds of searching), or by signing up for AOL. The
second can be avoided simply by lying.

It seems that despite this, the judge has required Yahoo! to implement
these measures.

So What Does It All Mean?

This is where it gets interesting. Firstly, there's the question of
jurisdiction. It seems self-evident to me that France has the right to
assert jurisdiction over its citizens. Whether I agree with their laws is
beside the point; those laws apply to French people. If Yahoo! wants to be
beyond France's reach, they can surely achieve that, by withdrawing their
operations from France. The fact that they don't means that, presumably,
they see economic advantage in continuing to maintain a presence there,
despite this problem. If they did this, the French courts would, I
suppose, have to pursue ISPs instead. I imagine this would become a major
struggle. As for France directly requiring American companies to enforce
French laws, that seems to me to be an obvious non-starter.

Secondly, people like to say "France has no clue - they're trying to
enforce an unworkable technical solution". This is silly. The duty of the
experts was to give an unbiased opinion. The duty of the judge is to apply
the law of the land to the best of his ability. We cannot comply with
those duties without ending up where we are. Think about it: would you
want to live in a world where judges routinely do things according to
political stances or publicity?  I think not. Yes, the solution is
half-assed and trivially avoidable. We know that. But it is still the
natural outcome of applying the law. Law-abiding citizens are aided in
obeying the law, and law-breakers are able to do so, just as they can
slash tires, or mug people in the street.

Then the economic aspects have to be considered. Yahoo! could reasonably
point out that following this course will end up with them having to
maintain a huge matrix of pages versus jurisdictions to see who can and
can't see what.  Given that the technical remedies are inaccurate,
ineffective and trivially avoided, this argument holds a great deal of
water. Why impose this pointless burden on every single website in the
world? I suspect this argument will become stronger with each similar
case.

Most importantly, there's a philosophical point. Remember that what is
supposed to be prevented is not the purchase of Nazi memorabilia, but the
mere ability to even see them. Presumably purchase can be controlled at
the point where the items enter France, just as if a Frenchman went to a
market selling such things overseas, and brought them home. What is being
fought over is literally what people think. No-one should be able to
control what I know or what I think. Not the government. Not the Thought
Police. Not my family. Not my friends. The Internet is pure information.
The fact that I cast aside my libertarian leanings in order to answer the
question for the court, and yet was still unable to help in any
substantive way, I find encouraging.  We know we've done the right thing
when our own best efforts cannot thwart it.

Some people seem to think that this sets some kind of important precedent.  
If it does, then the precedent is surely that the Internet does not adapt
well to the control of subject matter, not that governments will intervene
and censor it successfully - people have been trying to do that since it
started, and they've never got anywhere. This case is no exception.

Ben Laurie, 21st November 2000

[1] From The Chambers Dictionary:
apology: a defence, justification, apologia
apologia: a written defence or vindication





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