[Nettime-bold] RE: <nettime> Yahoo Ruling: "Don't Roll Your Eyes..."

[marnoldm <marnoldm {AT} 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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