Global Treaty Could Transform the Web

Whenever we try to define the web, we risk sounding like an undergraduate philosophy student:

Now, as a global pact threatens to restrict the web, such considerations are inevitable. An international treaty arising from the Hague Convention on Jurisdiction and Foreign Judgments aims to establish common protocols for handling international violations, especially when national laws conflict.

In essence, the convention’s 52 member nations would agree to enforce one another’s commercial laws. A company, ISP or individual could be held accountable for violating a foreign law, even if it’s not a local violation. The web, says the treaty, makes it possible to break a law from thousands of miles away, and just because you’re using the web doesn’t mean you have immunity.

The result is extreme conservatism, the smallest common denominator of globally acceptable content, material conforming to all the laws of every nation on the planet. If it’s illegal to publish photos of animals in a country you can’t even find on a map, that country could, technically, force an ISP to block your “All About My Cat” page or remove it entirely. A hyperbolic example, yes, but if you’re running a site called “All About Sex Education,” you might be in trouble.

The implications of the treaty, and a number of more specific legal battles, are vast and very real. They can’t be talked away with abstract philosophies. But the principles underlying a restricted web can, and should, be considered on a platform of ideals. Entire constitutions have been built around basic systems of belief. If countries are establishing an international government to police the web, it too will arise from abstraction.

Understanding the web#section2

In order to govern the web, we first have to understand what it is. Just as the American colonies were fundamentally altered once they declared independence, current definitions of the web may no longer apply under a set of international restrictions. What is the web? Is it even governable, or will it become something else entirely as a result of sudden borders?

Phrases such as “going on the web”, “thinking on the web”, “existing on the web” and, heck, even “on the web” all by itself are so preponderant that one would expect to find the web on a standard globe. There comes a time when every serious surfer or developer honestly begins to believe that the web is a PLACE, if not physical then at least 100% real. And it is real. An idea is not a concrete noun; you cannot hold a concept in your hand. But Nazism is real. Love is real. A virtual environment is real, too, even if you can’t hammer a fence around it. Or can you?

Physically, there is no web. You can point to the hubs, the servers, the files on a desktop or the energy of all that binary zipping around the world, but it’s only as good as pointing to a pile of metal, glass and rubber and calling it a car. That stuff isn’t the web. The web, as we’ve said, is a virtual environment completely populated by words, ideas and digital facsimiles. Try defining “content” sometime; everybody and their brother has been defining, redefining and misinterpreting the notion of “web content” for years precisely because it’s a nebulous concept.

The web is an abstract noun.

So how does one restrict it? Two ways: with other abstractions, such as laws, and by controlling the physical parts that make the intangible web possible.

Nazi Yahoo!#section3

Let’s start with law. In a heavily publicized case that began last year, a court in France ruled that Yahoo! had violated French law by allowing access to Nazi paraphernalia on its auction site, even though Yahoo!’s servers were located in the United States. French law prohibits the exhibition of racist objects, let alone their appearance on auction blocks. Yahoo! now faces fines of up to $14,000 a day for showcasing the material. France is hoping that the fines will be enforceable in the U.S. The decision was challenged and certain immunities were granted, yet Yahoo! removed the Nazi items from its site anyway and has no intention of making them available again, regardless of the final outcome.

No matter what, the question of whether or not local jurisdictions are to be enforced on a global scale isn’t a one-time deal. A French anti-racism group recently began asking national ISPs to block access to a U.S.-based neo-Nazi web portal called Front 14. Cybercrimes are on the rise: Russians hacking Americans, Americans grifting Europeans, Europeans plundering Asia. Here in the States, libraries risk the loss of federal funding if they fail to implement filtering technologies for public Internet access; those filtering technologies, far from perfect, will play a vital role in the future of global web restrictions.

Preliminary drafts of the Hague treaty have left defenders of the open web, mainly from the United States, crying foul. Yahoo!’s case would dramatically weaken under the treaty, which would grant French courts easy authority over a U.S. site. And that case is merely a precedent. Under international guidelines, every site in the world would be vulnerable.

The arguments surrounding the treaty aren’t your typical freedom of speech debates, the specifics of which are exhaustingly familiar in countries dedicated to protecting expression. Consider a case like child pornography. If a site based in South Korea offered streaming video of men raping 12-year-old girls, should the U.S. be allowed to pursue the matter? It’s not as simple as protecting Huck Finn from a Georgia PTA. And then there are international crimes everyone agrees on. Stealing is stealing no matter what country you’re in. But who does the police work and under whose jurisdiction are the offenders tried? Without some international agreements, those crimes are virtually impossible to curb. It’s hard enough bagging a criminal in your own country.

Restricting the borderless#section4

Can we actually place borders around an abstract environment that is, by nature, borderless? It’s as odd as keeping a jar full of notions.

One option is forcing ISPs to keep tabs on their subscribers. The ISPs would be responsible, as they already are in some countries, for removing any illegal material that they are aware of on their servers. Not only would this be a disaster business-wise, it would require an enormous amount of vigilance and effort on the part of the individual ISPs. If they don’t comply, they could be held accountable for the actions of their subscribers. Needless to say, most providers aren’t pleased at the prospect of becoming police officers. They’d be arresting their own people.

An alternative to removing violators is filtering. Geographic tracking technology is advancing rapidly. Though nothing is currently foolproof, it will soon be possible to identify, and therefore block, users based on their approximate geographic location. The tracking is based on IP addresses. At present, the ability to identify a user by their IP address is imperfect. But according to CNET,

Blocking an entire country will be a breeze.

The data gathered from such efficient tracking – location, age, income – is a marketer’s dream, allowing sites and businesses to target specific regions and users with great precision. It could also paradoxically outlaw entire populations from becoming cash-paying customers. And it’s a wholesale nightmare for free speech and anonymity advocates.

Cigars and prostitution#section5

Let’s say that in a few years’ time, the technologies exist to create a perfect set of fences. The question then is whether or not they’re justifiable.

Consider the Yahoo! conundrum. Physical and even non-physical objects cannot by nature exist in another country simply because they’re featured on the web. The Nazi paraphernalia was never actually in France. Even the digital copy, the mere exhibition, didn’t exist in France until it was instantiated by a French citizen. That citizen broke the law, not Yahoo!

Take, for example, Cuban cigars. They’re illegal in the United States but not, of course, in Cuba. If a U.S. citizen retrieves a Cuban cigar and brings it home to Florida, Cuba is not to blame. The same mentality should apply to the web. If people violate their own country’s laws by retrieving data that is legally stored in another country, the origin should not be held accountable. This isn’t a case of one country’s servers maliciously injecting illegal material into another country’s computers. Yahoo! didn’t send swastikas to French citizens. They merely responded, legally according to local law, to an outside request.

A fine line, maybe. But offering the potential to break a law is not the same as breaking a law. Otherwise, we’d have to refuse old ladies access to public streets – they make purse snatching not only possible but quite easy. If this is an extremely ridiculous analogy, what about an old lady speaking against a government that murdered her children? She could be silenced in restrictive countries. Such silencing happens already throughout the world, but not so much on the web. By lowering the bar to accommodate the most strict national policies, an old lady might be silenced while living in a country that supports freedom of expression.

Just because a person has access to a potential crime doesn’t mean the crime must be committed. We wouldn’t fine the City of New York because 11th Avenue had prostitutes offering illegal services. Why should Yahoo! U.S. be penalized for simply allowing access to Nazi material that is illegal in France? French law is only violated if a French citizen accesses the material, whether by winning an auction or viewing the site. Either way, it is up to the French citizens in this case to abide by their own country’s laws, just as a New Yorker is responsible for not procuring a hooker. It would be excessive to restrict everyone’s access to 11th Avenue.

Another brick in the wall?#section6

It’s a slippery slope, as they say, and after a while the worst case scenarios begin to sound absurd. Seriously, how great a threat is this to countries with even a modicum of respect for free speech and, perhaps more practically, open commerce? Will the wealthiest companies in the world allow their revenues to be restricted? Yahoo!’s not going quietly (despite their removal of the offending items) and that was only an auction. Wait until AOL/Time Warner has to start blocking media and MSNBC has to filter news.

Let alone the masses. If peer-to-peer can sprout a thousand heads as soon as Napster is restricted, the threat of a suffocated web sounds relatively hollow. Once people have a certain freedom, they hold on for dear life. I want my MP3! Try blocking a few thousand popular sites.

Every war in history has been about establishing and abolishing borders-borders of geography, religion, class, race, economy, ideas and principles. The web is the borderless embodiment of every abstraction people have wrestled with throughout history. We are obsessed with borders and freedoms. Our lives are made of them. The Berlin Wall continues to resonate as a potent metaphor. Put it up. Knock it down. What will happen when a global wall is erected is anybody’s guess.

From global to local#section7

The web will probably find ways around excessive restriction – at least in certain countries. But there are countries who might see the freedom of an open web vanish almost as soon as it appears, just as many of their other freedoms have been denied. The U.S. stomps hardest whenever its freedom is threatened. We have the biggest boot in that department. We also have a tendency to walk away when our own personal troubles are ameliorated. How hard will we stomp if the web is only restricted in a handful of Muslim countries? Would the average American care? Would the U.S. government?

As for the treaty, the United States could opt out. Given the overwhelming number of sites originating in the U.S., such a move would seriously inhibit the treaty’s scope. Millions of American sites would remain untouchable in terms of international law.

For now, the Hague treaty and movements like it are threats to everyone who values the open medium. Businesses, organizations and individuals of every variety stand to lose. Someday soon, technology will exist to completely and efficiently block a news portal from any surfer outside of its home country (or even parts of its own country). Companies could discover that a true international market no longer exists due to complicated and conflicting regulations. If your family lives abroad, their access to your daily blog could be denied for reasons that seem inscrutable by local standards.

In a best case scenario, geographical restrictions could be possible but limited. In a worst case scenario, the web could be reduced to collection of national intranets, each attending to whatever local regulation allows.

There’ll be nothing worldwide about it.