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Wishing for Walls
By Scott Bradner
It would be easy to dismiss the French court action against Yahoo! as a manifestation of ignorance of the technology of the Internet or as a throwback to the time of Minitel or as well thought out as the Maginot line. But it seems the French court did know what it was doing and that bodes ill for the future of the Internet at least in France.
It was not all that long ago that France could point with some pride to Minitel as the first general use data network for the general public. Minitel was a widely used text-based communications system with thousands of available services. It was also a closed network. It was confined to the borders of France and was not connected to other networks. Thus it was easy for the French government or the French courts to control what people could see when using Minitel.
Before World War II France built what was touted as an impregnable wall along its border with Germany known as the Maginot line. But in a foreseeable move the Germans just went around the end of the fortifications when it came time to invade France.
A few weeks ago a French court told Yahoo! that it had to make sure that no French Internet users could view or buy Nazi materials on Yahoo! web sites. This would have been easy to do in the old Minitel days but not so easy with the Internet. In particular it would be trivial for any French Internet user to circumvent any barrier Yahoo! could erect other than removing the Nazi material all together. The court was told that any Yahoo! erected electronic Maginot line would not be particularly effective but the court said that it would be effective enough. If Yahoo! does not comply the fine is about $13,000 per day, not a big deal, but a bad precedent indeed.
There are over 180 countries on the Internet. If the French action holds, it may be overturned on appeal, it sets the precedent that would permit any of those countries to define their own rules on what people can see or do. Companies that provide Internet-based services would then have to use different rules depending on where in the world the user was located. This would make doing business complicated, expensive and, if you do not know the rule of the moment for every local, risky. This uncertainty will do little to increase Internet investment in places like France.
France has a reason to want to restrict Nazi materials but it might be better off penalizing the possession, which is in its jurisdiction, rather than pretending to make a difference by closing a door standing by itself with no house around it to keep out the wind.
disclaimer: Harvard has lots of doors but some wind escapes anyway. The above wind is mine alone.