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Missing huge bits of information:

Cyberspace as Geography and the Application of Law

Outline – First Draft

I. La Ligue Contre le Racisme et L’Antisemitisme (LICRA) et L’Union des Etudiants Juifs de France (UEFJ) v. Yahoo Inc. and Yahoo France, Interim Court Order, the County Court of Paris, November 20, 2000, 14

A. History of Yahoo

1. Developed as a hobby of Stanford graduate students Jerry Yang and David Filo (http://docs.yahoo.com/info/misc/history.html)

2. made public in 2000 with shares starting at $475 a share (Goldsmith & Wu who Controls the Internet?)

B. Mark Knobel and the Nazi paraphernalia

1. February 2000 – threatens Yahoo with media blitz if they do not pull the items that are for sale off their website – paraphernalia in violation of French law that states

2. 11 April 2000 – sues Yahoo in French court on behalf of LICRA et al

C. The first case to question the extent of one country’s laws over another country’s citizens when the interaction is taking place solely across the internet (http://news.com.com/2100-1017-275564.html)

1. American lawyer: a company cannot guarantee that it will follow laws of every country (http://news.bbc.co.uk/2/hi/europe/760782.stm)

a. brings in issues of the ‘race to the bottom’ – ultimately, countries being able to demand that companies in other countries follow their laws means that everyone will have to follow the most restrictive laws, meaning an eventual decay into fascism as the control mechanism of the internet

b. the director of Yahoo.fr, Philippe Guillanton, said: “The point is whether we want the internet to be closed the same way that the media have traditionally been closed by frontiers.” (http://news.bbc.co.uk/2/hi/europe/760782.stm)

2. French lawyer: the internet risks becoming a “no-law” space

a. Nicholas Negroponte, co-founder and director of MIT’s Media lab: “The Internet cannot be regulated. It’s not that laws aren’t relevant, it’s that the nation state is not relevant. This is the next discussion we will have. Cyberlaw is by its nature global and we’re not very good at global law,” (http://calbears.findarticles.com/p/articles/mi_m0NEW/is_1996_Feb_5/ai_18008328)

b. Laurence Tribe: “the Constitution, as a whole, protects people, not places” (http://www.sjgames.com/SS/tribe.html)

D. Findings

1. 22 May 2000: Judge Gomez ruled that Yahoo had a responsibility to ensure that French law was not violated on the internet by the company and that they must make it impossible for French web surfers to access illegal Yahoo Nazi auction sites on yahoo.com

2. Yahoo argued that it was impossible for them to filter users by geography

a. physical borders are not announced – information in cyberspace moves from portals to portals without any indication of where the portals are existing – think of diplomats who constantly travel – are they subject to surfing laws of where they are visiting or those that apply to their country of origin?

b. France gave yahoo two months to figure out how to make it un-impossible

3. 24 July 2000 – Yahoo reasserts that it is impossible to identify and filter French users and content; rebuked by Stephane Lilti rebuked this notion by discussing Cyril Houri’s geo-location technology

a. Infosplit, now a subsidiary of Quova, founded in 1999, developed software that could translate IP addresses into geographical locations (www.svantesson.org/svantesson20040906.doc)

b. between this technology and self-reporting, it was believed that up to 90% of French users could be screened out of sites, thus reaffirming that French law was broken

4. August 2000 – Yahoo counter-sues in American court to block French judgment

5. Judge Gomez gives Yahoo until February 2001 to comply or would fine Yahoo

100,000 francs a day until it did – a considerable threat as yahoo executives

frequently traveled to France on business

E. The long downward spiral of Yahoo

1. In 2002 yahoo shares dropped to $9.71 a share

2. Yahoo entered into an agreement with China in a document called “Public Pledge on Self-Discipline for the Chinese Internet Industry”

a. Kenneth Roth, Executive Director of Human Rights Watch: “If it implements the pledge, Yahoo! will become an agent of Chinese law enforcement,”

b. In September 2002, Yahoo gave Chinese government information leading to the arrest of Wang Xiaoxing for dissident emails. All of his email and surfing histories were released leading to a 10 year prison sentence in a forced labour prison (http://arstechnica.com/news.ars/post/20070419-human-rights-group-sues-yahoo-over-chinese-dissident-jailing.html)

3. In 2005, Yahoo offered Chinese citizens full suite of censoring products which includes both human and software censors monitoring chat room conversations

4. Yahoo’s Jerry Wang excused this by saying, “To be doing business in China, or anywhere else in the world, we have to comply with local law. I do not like the outcome of what happens with these things, But we have to follow the law.” (Goldsmith and Wu, Who Controls the Internet?)

F. Other losses to public pressure

1. CompuServ in 1995 to German government to limit sexual expression not only to Germany’s 220,000 users, but also to its 4 million users worl-wide because of inability to geo-locate

2. AOL to Franch over Nazi paraphernalia in 1996

II. Reno v. ACLU

A. Federal Communications Decency Act of 1996

1. The first major overhaul to the 1934 Communications Act which attempted to address changes in technology

2. insert pieces of Section V – Obscene or Harassing Uses of Telecommunications Facilities (http://www.fcc.gov/Reports/tcom1996.pdf)

B. The argument

1. the constitutionality of the overbroad descriptions of indecent materials

2. the call for “take “good faith, . . . effective . . . actions” to restrict access by minors to the prohibited communications, §223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B)” (Reno v. ACLU)

3. The CDA differs from the various laws and orders upheld in cases such as Ginsberg v. New York, 390 U. S. 629; FCC v. Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41 in many ways, including

a. “that it does not allow parents to consent to their children’s use of restricted materials” (Ginsburg v. New York);

b. “is not limited to commercial transactions;

c. fails to provide any definition of “indecent” and omits any requirement that “patently offensive” material lack socially redeeming value;

d. neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium’s unique characteristics;

e. is punitive;

f. applies to a medium that, unlike radio, receives full First Amendment protection;

g. and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech.”

2. Lacks precision in outlining guidelines for due process in violation of the Fifth amendment

3. The effort to protect children has caused the loss of First Amendment rights of adults when, in fact, it is the parents’ responsibilities to protect their own children from material that parents deem inappropriate through the use of user-based censoring software (NetNanny, etc.)

C. The findings for the ACLU, written by Justice Stevens

1. “Though such material is widely available, users seldom encounter such content accidentally…”the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended.””

2. The District Court found that there is no effective way to assess the age of the user upon entering a site and that even if there was, there would be no way to week out areas of a site that are offensive from those that are not (i.e., educational sites that have material on them that could potentially be deemed offensive)

a. using credit cards as verification would impose high costs to internet sites that may not actually accept them for any sort of monetary transactions

b. would pose an impediment upon members of society who do not have a credit card

c. “adult” passwords already used on pornographic sites have not proved effective at this point and the government did not offer any proof to the contrary in its argument

3. “Taken together, these tools constitute a unique medium—known to its users as “cyberspace”—located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.”

III. The argument for cyberspace as Geography

A. At the outset, acknowledge that space in cyberspace is not like space in this plane – it is not limited to a three-dimensional realm, it is not hampered by things such as gravity or friction and the scale and production of it may change at a whim, in an instant. It is as though it is liquid in nature (Dodge & Kitchin, Mapping Cyberspace).

B. Geography IN cyberspace is constructed and exists in virtual spaces which removes it from our general notions of geographic space; however, it is a shared construct, a “common mental geography’ (Gibson 1984, qted by D & K)

C. Environment is learned through interaction. Three main theories:

1. “environmental cues such as landmarks, form the fundamental building blocks and framework of knowledge on which subsequent information, wuch as paths are added.

2. “path-based information forms the initial framework fo knowledge and that landmarks and other information are then placed in relation to this”

3. “because way-finding only necessitates ordered productions (remembering the order of route segments), with initial learning consisting not of building a spatial database but on memorizing vistas, views or scenes rather than the memory of landmarks or paths form the basis of early learning.” (D&K, 167)

D. because cyberspace is constructed of virtual societies that are cultural products, they must be studied as such and are subject to the study patterns of cultural geography

E. it is a “consensual hallucination” much as other constructs are, for example, notions of nations are mutually agreed upon arbitrary boundaries in space that march across cultural, physical, and social divides without any concept of appropriateness. In the same spirit, cyberspace does precisely the same thing, only it dissolves these boundaries, which is why jurisdictional matters are so difficult to accomodate

IV. Geography as a zoning tool

A. in Reno v. ACLU, Justice Stevens reiterated Renton v. Playtime Theatres, Inc., in upholding zoning ordinances that kept adult movie theatres out of residential neighborhoods

1. which was not based on content issues but on the crime and deteriorating property values

2. Can the same argument be made that there should be zoning of adult websites because the value of an internet site may drop if the site is barred by an internet censor software that deems artistic renditions of otherwise obscene material that is for sale to the general public – possibly costing the website owners business?

B. The argument over the .xxx Top Level Domain

1. ACLU and others believe that some countries may force some sensitive subjects into the .xxx domain like gay rights and abortion

2. conservative churches and George Bush’s administration believe that it will legitimize pornography and they are concerned about a virtual red-light district in cyberspace (http://news.com.com/Bush+administration+objects+to+.xxx+domains/2100-1028_3-5833764.html)

3. pornographers feel that it is simply the harbinger of regulation to come and that having the .xxx domain will allow for greater regulation and controls later on down the road

4. Until April 2007, ICANN also opposed the .xxx domain name (originally rejected in November 2000) because “ICANN would be forced to assume an ongoing management and oversight role regarding Internet content, which is inconsistent with its technical mandate…therefore obligating ICANN to acquire responsibility related to content and conduct.” (http://www.icann.org/meetings/lisbon/transcript-board-30mar07.htm)

5. The application was originally sent into the ICANN submission process by a group of internet pornographers wishing to self-regulate.

6. Adult websites will not be mandated to close their .com, .net, .org or .biz sites, rather will be able to add the .xxx to their stable of websties (http://www.internetnews.com/xSP/article.php/3509511)

7. Senator Lieberman: “I think (the .xxx TLD) has a lot of merit, for rather than constricting the Net’s open architecture, it would capitalize on it to effectively shield children from pornography and it would do so without encroaching on the rights of adults to have access to protected speech.” (http://www.infoworld.com/article/05/06/02/HNporndomain_1.html / http://www.copacommission.org/meetings/hearing1/lieberman.test.pdf)

V. Child Pornography

A. Perhaps the most pernicious issue on the web is the issue of child pornography.

1. 100,000 child pornography sites

2. 160,000 requests for child pornography on Gnutella, daily

B. Currently, U.S. relies on citizen reporting to find sites

C. No international jurisdiction to control or manage issue

VI. Application of Law

A. Models of transnational agreements that serve to protect the people of the world

1. Universal Declaration of Human Rights

a. outlines 30 articles of basic human rights that should be afforded to all people

b. a convention that is universally agreed upon — though nonbinding, it serves as guidelines for what is universally acceptable behaviour

2. united Nations Convention Against Torture

B. Implementation of Convention for Internet regulation

1. not as a binding legal contract but as a set of guidelines that could help regulate and guide users

2. would preclude the ‘race to the bottom’ that is happening now

3. would include self-regulation for controversial areas of cyberspace

4. Extradition agreements

a. site case of Russian hacker in 1990’s

b. limit sueability – e.g., spend more time on concerns that are meaningful and not on petty issues like sales of Mein Kampf