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 judgement 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 (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 jurisidiction 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