Controlling illegal content over the Internet
Controlling illegal content over the Internet
- Octobre 1996
Par Valérie SEDALLIAN
Avocat à la Cour de Paris
Paper presented during the debate " Censoring the Internet : a lawyer's deceit" of the Media Law Commitee, 26th International Bar Association Conference, Berlin, 23 October 1996.
1- AUI DETAILS (1)
The AUI, the Association des Utilisateurs de l'Internet (Association of
Internet' Users) is a not-for-profit, independent organisation, which
was created in February 1996. The AUI works to promote the development
and democratic use of electronic networks, although most activity is focused
upon the Internet. Its primary purpose is to assist in the support of
activity in favour of keeping the Internet cooperative and open.
Its activities include providing relevant information to Internet users,
following and participating in the improvement of various technical aspects
of the Internet, acting in direction of a better understanding of what
Internet is and what it may mean in terms of social and economical developments.
It also supports actions in favour of more flexible laws concerning cryptography.
The AUI is taking part in a working group of the NIC-France on French
domain names and has been auditioned by the Consultative Commission of
Human Rights which has created a working group on racist activities over
the Internet.
The AUI is a founding member of the Global Internet Liberty Campaign (GILC).
Other founding members currently include : The American Civil Liberties
Union, the Electronic Privacy Information Center, the Human Rights Watch,
the Internet Society, Privacy International and other civil liberties
and human rights organisations.
2- AN INTRODUCTION TO THE INTERNET
The Internet is the largest online network in the world. Internet users
connect to the network though an Internet Service Provider. Users can
communicate privately on the Internet via the exchange of e-mail and related
services, or by accessing public services that are available to all Internet
users. The most popular public service of the Internet is the World Wide
Web, which permits access to a vast amount of information supplied from
computers known as "Web Servers" since they serve information
to other users of the Web. The Internet also provides access to online
discussion groups called newsgroups and collectively known as Usenet.
Usenet can be described as a huge database of messages, generally grouped
by subjects of discussion.
The Internet has characteristics that makes it different from other media:
it is decentralised as no other medium has ever been. Because it consists
of many loosely connected computers and has many different routes for
allowing robust communication and transfer of information, no unique point
of control exists. In addition, users of online networks are also producers
of information: since the users are free to select the information they
want to view, the sites visited may reflect their interests to some degree.
At the moment, there isn't necessarily an intermediary between the consumers
and producers of information on the Internet. Science Fiction aside, the
Internet is not really a different world, and thus it often reflects what
goes on in the "real world". And of course, since offensive
language and thought can be found in the real world, it can also be found
on the Internet.
This is the heart of the current debate over the future of the Internet:
Who will control the flow of information? Who will determine what speech
and information is offensive, or dangerous? Many Governments would like
to have complete control of this new medium which does not respect the
traditional rights of sovereignty and territorial borders. The ability
to censor is perceived as central to the self interests of many governments
and agencies.
However, the decentralised and international nature of the Internet is
a serious challenge to censorship. Certain technical aspects of the Internet
make censorship very difficult. In democratic countries where freedom
of speech is valued as being of fundamental importance, any attempt to
create specific legislation for the Internet may not only be ineffective
but also raise the issue of civil rights abuse. But it does not mean that
existing law should not apply to the Internet.
I will first examine a number a of recent French cases involving the Internet.
After the American Congress passed the Communications Decency Act, the
French parliament attempted to enact legislation regulating the Internet.
Although the law was later struck down by the French constitutional Council,
I would like to examine the system as envisioned in the legislation.
Finally, as the Internet has rapidly moved from a relatively small society
of scientists, researchers and students to a large, diverse community
with many people from different backgrounds, cultures and motives, I will
discuss what can be done and what should not be done in attempts to provide
regulation.
3- FRENCH RECENT CASES
• Gübler's affair
The Gübler affair was the first case concerning the Internet in France,
and drew considerable attention to the actual existence of the Internet.
In January 1996, a few days after the death of François Mitterrand,
a book was published by Mr. Gonod, a journalist and the ex-personal physician
of the President, Dr. Gübler.
In it, the doctor stated that François Mitterrand had known about
his cancer since the beginning of his first term in 1981 and also revealed
many details about his illness and private life.
In summary proceedings the Mitterrand Family obtained a court order banning
the book for violation of privacy rights. Shortly after this order was
issued, the manager of a cybercafé in Besançon scanned the
book and put it on a web server in the name of freedom of expression.
A few days later, the Web service was closed, but the book had already
been reproduced in servers located outside France, including the server
of MIT, an American University (2) well known for research on computer
science.
Neither the Mitterrand family, the publisher nor the authors of the book
sued the cybercafé. Although the French media stated that existing
law didn't apply to the Internet, nothing could be more wrong: The cybercafe's
manager had reproduced a copyrighted book without authorisation and made
it available to the public.
Copyright Infringement is prohibited in France and many other countries.
By putting the book on his server after it was banned, the manager of
the cybercafé had also committed a civil offence, acting as an
accomplice in breaching the medical privacy of Mitterrand.
• UEJF / Calvacom, Eunet, Axone, Compuserve and others (3)
In order to understand the UEJF case, we must define "negationist
speech" for those unfamiliar with French law. French law provides
that those who contest publicly the existence of various crimes against
humanity as defined under article 6 (statutes of the international military
court) of the London agreement of 8 August 1945 and that have been committed
either by an organisation declared criminal by application of article
9 of the said statute, or by a person recognised as guilty of such crimes
by a French or international jurisdiction will be punished by imprisonment
of up to one year or/and a fine of 300 000 FF (4).
In March 1996, the UEJF, a French Association of Jewish Students (Union
des Etudiants Juifs de France) issued a writ against nine French Internet
Providers on the grounds that the ISPs allowed their clients to access
services with negationist messages and thus infringing French criminal
law.
The plaintiff asked the judge to give the defendants an injunction with
penalties in order to prevent their clients from connecting to services
that violate French law by allowing access to negationist information.
According to the UEJF, the Internet providers had committed the offence
of distribution of negationist messages and were liable under penal and
civil law. The Defendants argued that they were providers of access, not
of content, that the plaintiff's demand would force them to control all
message content, information and access on all services, in real time
- and that this request was not only unreasonable, but also impossible
to implement.
During the proceedings, the UEJF asked that an expert be nominated by
the judge to determine whether appropriate technical measures could be
taken to block access to negationist servers. The demand was denied by
the judge, who stated that :
"Judges are forbidden to give general and regulatory orders on
the cases that are submitted to them. Moreover, freedom of speech is a
fundamental value, of which jurisdictional courts are the guardians, and
which can only be restricted in specific cases, and only under certain
determined circumstances " (5). The judge felt that what was
requested by the plaintiff was too broad and somewhat vague.
• World-Net and France-Net affair
On May 7th, 1996, the managers of two Internet providers, Worldnet and
FranceNet were charged with distribution of child pornography. The two
ISPs were accused of making pornographic images of children available
to their subscribers on their news server. They were not charged because
they were producers of child pornography but because a few of the Internet
newsgroups they carried contained messages with pornographic images of
children. These images were not posted by French users, but came from
outside France.
Under 227-23 article of French penal Code : "The act, with a
view to the distribution, production, or transmission of the image of
a child when this image is pornographic is punishable by one year of imprisonment
and a fine of 300,000 francs. The distribution of such an image , by whatever
means, is punished by the same penalties. Penalties increase to three
years imprisonment and a fine of 500,000 francs when the child is less
than 15 years."
After the criminal proceedings against their colleagues, many French Internet
Services providers protested. Some cut access to the newsgroups for a
few days, and the University network has blocked access to the whole
4- FRENCH ATTEMPTS TO REGULATE THE INTERNET
While the French Senate was examining the bill amending telecommunication
law and intended to cause the telecommunications industry to adopt complete
competition by 1998, in accordance with European regulations, the government presented an amendment to this bill. The amendment, which is known as Amendment Fillon after the name of the French Minister of telecommunication dded three articles (article 43-1 to 43-3) to the law of 30 September 1986 on audiovisual broadcast. On June 18th 1996, the French Parliament
passed a bill altering existing
Telecommunications law (7), including
the amendment concerning
regulation of the Internet.
This amendment was
analysed by the AUI, and described it as "hasty,
useless,
unjustified, technically inapplicable and dangerous to democracy
and freedom of expression".
AUI asked for the withdrawal
of Fillon Amendment, and alerted the public
opinion and the
concerned authorities. More specifically, AUI alerted
the
political groups of the Senate and the Assemblee Nationale. Then,
on June 24, 1996, the Conseil Constitutionnel received a request from
61 Senators belonging to the Socialist Group to examine the constitutional
implications of the Telecommunication Act as well as the
unconstitutionality
of the amendment concerning the control of
Internet services.
On July 24, 1996 the Conseil Constitutionnel acknowledged the unconstitutionality
of the amendment to the telecommunication law reform bill. The AUI has
noted this decision with some satisfaction.
4-1- Fillon amendment and the constitutional Council decision
The government wanted to clarify the statute of Internet Access Providers.
Internet providers are described as "any person whose activity
is to provide a connection service to one or more audiovisual communication
services mentioned at article 43-1) of the law of 30 September 1986".
The law (n° 86-1067) of September 30th 1986 gives a very broad definition
of audiovisual communication:
"By telecommunication is meant all transmission, broadcast or
reception of signs, signals, writing, images, sounds or information of
every nature, by wire, optic, radio-electric or other electromagnetic
systems. By audiovisual communication is meant everything which is made
available to the public by means of telecommunication, signs, signals,
writing, images and sounds, or messages of every nature which do not take
the character of private correspondence."
It is a very wide definition which includes Web sites, open mailing lists
and newsgroups.
Services mentioned in article 43 1) of the law are audiovisual services
other than services broadcast on any wavelength, and cable and public
television services. These broadcast services require prior authorisation
by the CSA(Conseil Supérieur de l'Audiovisuel), an independent
authority which controls broadcast.
The Internet provider must propose to its client a technical device to
enable them to block access to certain services and to select them.
The CSA was to adopt certain guidelines to ensure the respect by audiovisual
Internet services of ethical rules adapted to the nature of these services.
These recommendations are published on the Official Journal (8). There
is also a committee assigned to evaluate the compliance of Internet services
with the recommendations. When the Committee decides that a service does
not abide by these guidelines, their findings are published on the Official
Journal and the interested parties are notified directly by the CSA.
When the President of the CSA is aware of facts that could motivate criminal
proceedings, he must inform the public prosecutor without delay. Another
interesting point is that when the Internet Provider has provided its
clients with software tools and has blocked access to the service on which
an unfavourable decision was given published on the Official Journal,
it is no longer criminally liable for offences resulting from the content
of messages distributed by an Internet audiovisual communication service.,
unless it has knowingly committed or participated in the offence.
In France, compliance of laws voted upon by Parliament to the Constitution
is verified by the Conseil constitutionnel (constitutional council) and
not by judicial courts like in the United States. A group of senators
asked the French constitutional Council to examine the law for compliance
with the French Constitution.
As a result, the two articles of the Fillon amendment on Internet regulation
concerning the powers given to the CSA to make recommendations and establish
guidelines concerning the Internet were struck down (9).
According to article 34 of the Constitution : "Law is voted by
the Parliament. Law determines the rules concerning : civil rights and
fundamental guarantees given to citizens for the exercise of public freedoms;..."
and among civil rights is included freedom of speech as stated in article
11 of Human Rights Declaration of 1789, which has constitutional value
:
"The free communications of thoughts and opinions is one of the
most precious rights of Man. Any citizen may thus freely speak, write,
print, except where he abuses this freedom in cases determined by the
Law" (10). The Conseil constitutional has found articles 43-2
and 43-3 of the Fillon amendment unconstitutional.
The Conseil constitutionnel reproaches the legislators because they had
not specified the principles to abide by for the making of these recommendations
and decisions that follow. The government has announced its intention
to propose another law which will comply with the decision of the constitutional
Council.
4-2 Freedom of speech
The question becomes: Is it even possible to put into place some measure
of control over the Internet without endangering the freedom of speech
which is constitutionality guaranteed considering the particularities
of Internet services ?
• Broadcast rules should not apply to Internet services
Unlike Broadcast services, any user on the Internet can become a producer
of information. The user need only send a text message or add a web-site
to gain access. Individuals, organisations and companies that provide
information on the Internet are as various as human activity: From commercial
companies, non-profit associations and administrations to universities,
religious or political movements. Although the quality of content can
vary, in theory an individual can have as much success in distributing
information as the largest organisation.
There are cases where an administrative authority has power of control
and to impose penalties. This is the case of the CSA, the broadcasting
authority. Television and radio may have been subject to specific regulation,
with a need for prior licensing, in order to conciliate the exercise of
freedom of communication with "on the one hand, the technical
constraints inherent in audiovisual communication means, and on the other
hand the need to preserve constitutional values: the safeguard of public
order, ensuring the respect of freedom of others and the preservation
of a plurality of expression upon which the means of communication may
have affect due to its considerable influence (11)".
Technical constraints refer to the scarcity of bandwidth on the electromagnetic
spectrum. Because there is not an infinite amount of bandwidth, available
frequencies must be distributed, and this is a role for the broadcast
authority. Moreover, traditional mass media communications have exerted
considerable influence over passive spectators.
In its decision concerning the law on Internet services, the constitutional
council didn't make reference to those "which whose means of
communication may affect many due to their considerable influence".
Thus, the implementation of a committee with powers of control over Internet
communication services that has been given the power to make decisions
on any kind of message, whatever its form, is unwarranted. The authority
has control over services which, if they were provided on any media beside
a computer network would benefit from a relatively free environment without
being directly under the control of an authority. This is the case of
print newspapers, non profit association and political parties.
The CSA may inflict penalties. The Conseil constitutionnel has considered
that in this case the legislators could put an independent administrative
authority in charge of ensuring the respect of audiovisual communication
freedom and give it powers to inflict penalties in the limits necessary
to the carrying out of its mission. But in the case of the CSA, this was
meant primarily for punishing the non compliance of obligations related
to a license (12). In the case of Internet services, the authority would
inflict penalties in reason of non compliance to criminal law.
As well, the Internet, as compared to other media, does not suffer from
a similar scarcity of resources, and there is a much lower threshold of
technical or financial barriers to access. It is also hard to envision
the creation of monopolistic situations for the providers of content,
largely because the Internet provides an inexpensive means of communication
that is far more open than other broadcast or even print media, with a
potentially larger audience as well.
While all these reasons justified the existence of broadcasting authorities
over TV and radio, the regulation of mass media is of a different nature
from the regulation of online services and these two domains should remain
separate (13).
• New laws are not necessary
Existing laws apply to the content of communication services, and there
are already many laws regulating content and framing freedom of speech
: the copyright laws (14), laws concerning distribution of violent or
pornographic messages that may be seen by children (15), laws about the
distribution of child pornography (16), incitement to racial hatred (17),
incitement to commit certain crimes (18), negationnism (19), libel law
(20), laws concerning privacy (21) etc...
If new prohibitions are determined by the legislator, then communication
over the Internet would not benefit from the same freedom of expression
than other means of communication, especially print. Again, there is a
problem concerning civil liberties.
This was what caused the most trouble with the American legislation with
the Communication Decency Act :
by prohibiting "indecent" and "patently offensive"
materials on Internet services, it tried to apply restrictions on speech
over the Internet that were used formerly for television and radio broadcast.
The Supreme court has held that the government may, consistent with the
Constitution regulate indecency on radio and television (22). But characteristics
of Internet communication are different from mass communication media.
So these restrictions are not justified concerning Internet communications
(23).
For example, why shouldn't the journalist expressing himself over the
Internet benefit from the same freedom of speech that his colleagues using
print media enjoy?
French legislator wanted to react against the distribution of racist and
negationist messages, and the distribution of child pornography images
which can unfortunately also be found over the Internet. The distribution
of such messages and images are already prohibited under French law. Most
of the time, racist messages come from outside France, sent by people
who cannot be reached by our judicial system.
The idea was that French law concerning Internet service should apply
to any service, even located abroad, as long as it is accessible in France
(24). Forcing foreign services to submit to French law appears as a breach
of sovereignty of other nations. It may also be contrary to the principle
of free circulation of services in the European Union. Imagine French
reaction if Saudi Arabia, a country which has Internet access, notified
the editors of a woman's magazine such as Elle (or a producer of French
wines) that the company was not following Saudi Arabian law! And imagine
the reaction of the United kingdom, if our French CSA would notify a U.K.
bookmaker's Web service that it must comply with French law concerning
bets on sports !
These examples are provocative, but it is to such a result that the application
of the amendment Fillon would have lead. Such notifications even to neo-nazi
sites would have meant bad publicity to the CSA and any public response
would also serve to act as powerful advertisements for sites which received
notification.
As in the Gübler case, or in the case of some Neo-Nazi sites that
German authorities have asked Deutsche telecom to block access to, this
would have resulted in actions causing the opposite of the desired effect
and would likely result in additional mirroring of sites, thus making
full compliance with the ban impossible. As an example: Deutsche Telecom
was ordered to filter access to a negationnist Web site. Some American
libertarians decided to put mirrors (ie to duplicate the site) of this
Web site on the servers of prestigious Universities such as MIT, Stanford
and Carnegie Mellon (25).
Why notify foreign sites of the decisions of a French authority? In democratic
countries, an authority cannot decide what is lawful or unlawful without
due process. The possibility of challenging the decision must be guaranteed,
and most especially where freedom of speech may be involved.
Freedom of communication is the rule, within the limits set by the court
system, and clearly marked by reference to specific offences defined by
law.
Over the Internet as elsewhere, an occasional trespass over those limits
that frame our freedom of speech are inevitable. But are those transgressions
coming from French users so pervasive that they would justify an aggressive
limitation to the free flow of information? A few cases sensationalised
by the media, handled without serenity and distance, should not overshadow
the great diversity of communications that take place over the Internet
and the variety of information that can be found.
Existing laws must be enforced, but new laws are not necessary.
"Vigorous enforcement of current obscenity and child pornography
laws should suffice to address the problem the government identified in
court and which concerned Congress. When the CDA was under consideration
by Congress, the Justice Department itself communicated its view that
it was not necessary because it was prosecuting on line obscenity, child
pornography and child solicitation under existing laws, and would continue
to do so" (26).
5- THE SERVICE PROVIDER
5-1 Liability
As it may be difficult in an international network to identify or to prosecute
the transmitter of illegal information located outside a country's jurisdiction,
there is a trend to make the ISP responsible for the content of the messages
that go though their services. However, Internet Service Providers (ISPs)
cannot police all the data that traverses their systems, or assume responsibility
for it, any more than the post office can assume responsibility for content
that is sent through traditional mail.
The Internet provider has various functions. It hosts Web sites, transports
data, it is an intermediate for the storing of newsgroups on its news
servers, of Web sites on its proxy servers and it transmits messages posted
by its clients or users back to the web.
The Internet provider is a point of access and of connection to the Internet.
It does not create content of communications. Storage of information on
its servers is incidental to its function and is necessary to improve
communication. For example, the implementation of a news server is necessary
for the user's access to newsgroups. News servers are incidental to the
way messages are transmitted though Usenet, from one news server to another
and so on.
The Internet provider also transmits messages sent and received posted
in the newsgroups. In all those cases, the Internet provider is a carrier
of information, it is not responsible for the behaviour of users, and
for the content of information that it makes available.
However, there is a difference between the carrier and the Internet provider
: since it is possible to access the information it transmits, it may
exercise control over information distributed. It is for this reason that
its situation is uncomfortable. It can technically have control over information
added to the system, but it is not currently possible to exercise this
control due to the huge volume of data that goes though its systems.
Under article 121-3 of the French penal Code, there is no crime or felony
without intention to commit it. This rule can apply to Internet providers.
No provision of law forces it to screen and control all information and
messages.
The mere fact that among the information transmitted by the Internet provider
can be found illegal messages is not enough to charge him with criminal
intent, except where the access itself to the Internet were to be considered
illegal. The Internet provider must knowingly distribute illegal information
to be liable (27).
If the Internet provider is informed that an offence has been committed
though its systems, and does not uses its powers to stop the distribution
of illegal messages, if this could be useful to prevent further distribution
of the said message, then it could be held liable. But the Internet providers
cannot police all the data that traverses their system. Moreover, the
Internet provider is not a judge, a lawyer, it has only technical competencies.
It should not give legal interpretation.
In the UEJF case, Axone, one of the defendants explained :
"It considers that it has no duty to act as a substitute for
authors in the assessment of liability, and to judges in the legal qualification
of distribution of information. It remains to victims and to public prosecution
to start claims and proceedings against authors, with eventually requiring
from Internet providers a particularly measure in the case it would be
possible and effective...Concerning the Web services it hosts, it can
take some measures only in the cases where obviously and without any excuse
the said information is a criminal offence. Otherwise, it would be acting
as a substitute for the judge and could not provide its clients the service
they expect. To expect systematic control over information available on
the network, including those coming from its client is excluded".
ISPs are not content providers; they channel content provided by their
users. It is outside the scope of the ISP to monitor, evaluate, and attempt
to remove all objectionable content. The UEJF 'service claim and the amendment
Fillon were based on the belief that it is possible to block access to
some messages and information sites.
5-2 Filtering newsgroups
In the World-Net and Francenet case, two Internet providers have been
charged with distribution of child pornography. The two ISPs were charged
because they have made pornographic images of children available to their
subscribers on their news server. It is not known why these two particular
Internet providers have been prosecuted : the same images must have been
available on the news servers of other Internet providers as these two
Internet providers were fed in news by other Internet providers. It is
not known either in which newsgroups the illegal images were found.
The number of newsgroups in the world is estimated at about 17 000. Each
day, hundreds of thousand of messages are posted on these newsgroups.
However, a lot of Internet providers do not distribute all the newsgroups.
The Internet provider may choose to distribute or not a particular newsgroup.
Once it has accepted to distribute the newsgroup, it cannot control all
messages posted on the newsgroup, it cannot verify if messages posted
in a newsgroups correspond to the theme of the group as the process of
transmission of messages from one server to another is entirely automated.
How can an Internet provider determine whether a newsgroup is illegal
?
The header of the newsgroup may suggest criminal activities, but it will
not generally be a proof that a newsgroup is illegal. For example,
Only an exam of messages posted in newsgroups may confirm or infirm that
a newsgroup carries illegal messages. Moreover, content of newsgroup is
continually changing. The question arises to know how many messages with
illegal content make the newsgroup illegal. The newsgroup
In practice, it is difficult to monitor all newsgroups. Control of all
messages by Internet providers is not possible. Access to some newsgroups
can be denied, but distribution of illegal messages may still be done
in other newsgroups. Moreover, newsgroups are available on servers located
outside France, which give access to all newsgroups, whether or not they
are available in France. For example, you can subscribe if you are over
18 years old for 12 dollars a year to an American server, Zippo, which
gives you access to more than 17 500 newsgroups, including controversial
newsgroups (28).
5-3 Filtering access to information sites (29)
One may think that in order to prevent access to a determined site, it
is enough to prevent access to the Internet Protocol address of the computer
where the site is located and implement this on routers or on address
name servers (server which associate IP addresses to domain names).
The problem is that a computer may host many services, which are not going
to be all illegal. So if you block access to one computer, you block access
to all services hosted on the computer. There are also technical problems
to this solution. Censor can be bypassed by accessing to re-routers, and
one can imagine that those kind of sites are going to be more and more
numerous, either for technical reasons, because this facilitates communications,
either for bypassing censorship. Addresses could also be blocked by the
Internet provider on the basis of URLs. Thus only specific services would
be blocked and not all services hosted on the computer. This system would
be very difficult to manage. An URL address can be changed very quickly,
so the URL of sites that are censored would have to be monitored constantly.
This kind of screening could be bypassed by users who would like to access
the forbidden sites, with the appropriate tools which are available on
the Internet. In both cases, and it would be worse for URL addresses,
screening would slow down communications because before each request,
machines will have to check if address 'site is not on a "black list".
If speed of transmission is reduced, then the whole system of computer
networks would be affected.
The best example that shows the limitations of filtering sites, is the
example of Deutsche Telekom and the site of the neo-nazi Zundel. Deutsche
Telecom had to filter access to this Web site. Some American libertarian
decided to put mirrors (i.e. to duplicate the site) of this Web site on
the servors of prestigious Universities such as MIT, Stanford or Carnegie
Mellon (30). So not only filtering was ineffective, but it gave some questionable
publicity to the site.
China has recently blocked about a hundred Web sites, including web sites
of American newspapers, CNN, Taiwan 's government, dissidents, human rights
organisations sites. How can China do this ? In China, all Internet users
(who are about 100 000) have been ordered to register with the police
and all Internet servers must go through the Ministry of Posts and Telecommunications.
Once officials decide a site should be banned, routers are programmed
so that information from it will not be accepted (31). In democratic countries,
you cannot ask all users to register with the police. Usually, Internet
system communications are not centralised. Governments would have great
difficulties in effectively filtering what millions of Americans and millions
of Europeans ( and not only 100 000 people) get access to.
Under the amendment Fillon, the Internet provider was not criminally liable
under two conditions :
• that it provides to its clients software that enables them to
filter access to sites. These softwares are called parental control softwares.
• that it blocks access to a service on which an unfavourable decision
has been published on the Official Journal.
The Internet provider would be liable if it didn't block access to those
sites. So instead of clarifying the status of Internet providers, this
law created new obligations for Internet providers without taking into
account technical and practical difficulties of filtering access to information
sites and newsgroups.
6- ENFORCEMENT ISSUES : CONTROLLING
THE INTERNET
6-1 Identify responsible parties
If laws are to be enforced, the authors of offences must be identified.
The transmitter is assumed to be responsible for the content of the information
transmitted. If the information transmitted is illegal, consists of libel
or other speech prejudicial to third parties or constitutes a criminal
offence, it become necessary to identify this person (or persons) in order
to make the claim or start prosecution. In most cases, the authors and
editors of such information can be traced, directly or indirectly.
• Identifying the responsible parties of information services
(Web services)
Each computer connected to the Internet must be identified by a fixed
location. Just as you need to know the physical address of the person
you are writing to in order to send him mail, a computer must know the
Internet address of the machine to which data will be transmitted. If
you want to access information available on a server connected to the
Internet, you must supply a request for its unique address on the network.
Each computer on the Internet uses the Internet Protocol, which requires
a unique address represented by groups of numbers separated by dots. Each
IP address corresponds to a domain name. Domain names are attributed and
managed by different entities depending on its origin. There is a group
for each country connected to the Internet, and these national groups
are identified by a two letter code such as
There are also 4 international groups known as <.com, <.net,
And you obtain :
France Online (FRANCE-DOM)
6201 Sunset Bldv #124
Los Angeles, CA 90028
USA
Domain name : france.com
Administrative contact, Technical Contact :
Frydman, Jean-Noel, (JF57) jnf@france.com
record last updated on 05-Janvier-96
record created on 10-Feb-94
Domain servers in listed order :
Research for domain names of the group <.fr are
made in the database of the NIC France (34).
Even if the service you are looking for does not have its own domain name,
it would be hosted by a server with a known domain name. You can communicate
with the administrative contact for the known domain name and inquire
about the identity of the editor of the service : he or she should know
the identity of editors of services it is hosting on its computers.
• Identifying the authors of messages
In a message posted in a newsgroup or in an e-mail correspondence, the
electronic address of the sender generally appears. In this address, you
will find the domain name of the Internet provider after the arobace @.
For example, you have no idea who hides behind "100268.563@compuserve.com",
but Compuserve should know the person who holds this account because it
belongs to one of its subscribers.
If the sender of the message has not put an electronic address on the
message, you are still be able to find out from which server the message
was sent. In e-mail messages, you can read the path of the message, all
the servers and routers it went though. Each log of users are recorded
in the machines from where the message was originally sent. So with the
help of the Internet provider, you can find out who sent a particular
message.
The same principles apply for messages posted to newsgroups.
Some people may be able to send messages anonymously, but this require
good technical competencies, and cannot be done by the majority of users.
It is much more easy to use the services of an anonymous remailer.
6-2 Anonymous remailers
On the Internet, users can send messages anonymously by routing them through
an anonymous remailer. The anonymous remailers delete the identifying
information about the incoming e-mail, and substitute a pre-defined header
identifying the remailer35. Anonymity makes it more difficult or impossible
to identify the person responsible for a harmful behaviour. Anonymity
is heavily criticised, but it presents also positive sides.
• Advantages and disadvantages of anonymity
On the one hand, anonymous messages make law enforcement impossible or
much more difficult. It is thus impossible or more difficult to prosecute
wrongdoers or get compensation. Anonymity encourages wrong behaviours
by eliminating accountability and responsibility. On the other hand, anonymous
communications are essential to permit political dissidents or minorities
to express themselves without fear of retribution from repressive governments.
It may help to get information about illegal activities.
Some argue that in those situations, the anonymous character of the messages
deprives it from any credibility, and that in some countries, the question
is more to get an access to the Internet and to be able to communicate
with the outside, than to have anonymous communications. Anonymous can
also be important to protect privacy. It allows communication about sensitive
subjects such as rape, child abuse, AIDS etc..
On the Internet, a lot of personal data can be gathered, stored, and analysed.
All messages posted to newsgroups are stored in a database (36) on which
anyone can make research on line by name and get all the messages posted
by a person to newsgroups. Some authors defend the idea that anonymity
might be a tool to protect your privacy on line (37).
• The different levels of anonymity
Some remailers permit the identification of the author of a message. The
remailer deletes information about the sender's identity, but keeps this
information in its databases. The remailer attributes you a kind of pseudonymous
e-mail address that allows you to send and receive messages anonymously.
One of the most famous remailer of that kind was the remailer of Johan
Helsingius in Finland,
As the remailer does keep the information about the identity of the senders
of messages, it may be possible to get the identity of that sender from
the remailer. Thus, the Church of Scientology obtained from the Finnish
police a warrant against Johan Helsingius 'service remailer to obtain
the identity of a person who, according to the Church, had posted documents
that infringed its copyright rights (39).
This kind of remailer does not seem to be secure enough for very sensitive
information and illegal activities. An article on Sunday, August 25 issue
of the British London Observer newspaper accused the Finnish remailer
for being used for distribution of "90% of child pornography on the
Internet". Helsinki police said that it had found no evidence of
child porn being transmitted from Finland (40).Johan Helsingius had restricted
the operations of his remailer so that it cannot transmit pictures. Other
remailers permit total anonymity, as all data concerning possible identification
of the sender is deleted by the remailer (41).These kind of remailers
use both encryption devices and chain remailing. In such cases, the risk
is for the remailer, rather than the poster. This is an example of a message
received from such a remailer :
Date: Sat, 7 Sep 1996 04:10:23 -0700
subject: http://www.HIPCRIME.com
To: sedallian@internet-juridique.net
From: nobody@cypherpunks.ca (John Anonymous MacDonald)
Comments: There is no way to determine the originator of this message.
If you wish to be blocked from receiving all anonymous mail, send your
request to the
In France, anonymous messages are often associated
in our collective memory, with denouncement, and more especially denouncement
of Jewish to the Gestapo during World War II. Among French Internet users,
anonymity is generally not well perceived. There are no any anonymous
remailers in France. Encryption is heavily regulated, so chain remailers
with encryption devices could not anyway be implemented in France. The
chances that the server could get the necessary authorisations from the
government are very low...To identify a person who used an anonymous remailer
would necessarily imply international proceedings and judicial assistance,
making locating that person much more costly and difficult.
Remailers that cannot permit any identification at all of senders are
a concern because they prevent law enforcement against the person responsible
for an offence. As long as those kind of remailers are tolerated in other
countries, however, they are available for all Internet users, even those
located in countries where such remailers are not present.
6- POLICING THE WORLD : CONCLUSION
In an international network, new issues arise. An information prohibited
in one country may be legal in another one. Some countries may judge unacceptable
speeches and images we find normal. We can give as an example the fatwa
against the writer Salman Rushdie. International judicial proceedings
are more complex and slow. Extradition is usually only requested for very
serious crimes such as murders and terrorism.
It is said that in an international context such as the Internet, any
national action will prove ineffective, and that only international solutions
to the regulation of the Internet would work. However, to imagine the
elaboration of a world ethic is not serious. Even here in Europe, each
country has its own moral standards. Country may have different opinions
on points that can be considered as fundamental. An international law
that would regulate the content of Internet services remains hypothetical,
as it would imply a harmonisation of the laws of all the countries connected
to the Internet, which is not possible at the moment. And which countrie's
ethic would be applied ? American ethic ? Chinese ethic ? German ethic
? Many countries would consider an ethic that does not reflect their values
unacceptable and a breach of their sovereignty.
Cultural differences between the various countries connected to the Internet
will remain, and I don't think it is a sufficient reason to impose new
limitations on communications on the Internet. If a Web site is legal
in the country where it is located, if a message is lawful in the country
from which it is sent, it should not be censored. But each country should
enforce its own local laws to information sites and to the person who
transmit illegal messages located on its territory. Most serious behaviour
and offences can be prosecuted.
For example, child pornography is prohibited in most countries. If some
Web sites make child pornography available, the editors of those site
can certainly be prosecuted in the country where it is hosted. In France,
a man who was distributing such images has been arrested (42), in the
United -States, the FBI has arrested several persons in September 1995,
after a two-years investigation, in Great-Britain, several persons have
been prosecuted and sentenced for distribution of child pornography over
the Internet, including a three-years sentence (43).
Many countries also regulate distribution of pornographic material to
protect children. Under French law, "the fact to manufacture,
carry, distribute by whatever means et whatever the medium a violent or
pornographic message or which is a serious attack on human dignity, or
to do business out of such a message, is punished by 3 years imprisonment
and 500 000 francs penalty when this message may be seen by a minor"(44).
What should be developed is an international cooperation between policies.
Squads specialised in computers can be created, and those specialised
squads can denounce to each other offences that are committed by users
located in their jurisdiction. Then, the local police can take the necessary
measures. This could be implemented for serious offences such as child
pornography.
So we can say that each country connected to the Internet has a duty to
enforce its own laws. Making new laws for facts that are already offences
do not appear necessary. Filtering access to the Internet is not a viable
solution, and making new regulations and implementing new authorities
will not succeed to prevent citizens of one country to get access to foreign
sites. In democratic countries , it will be difficult to impose effective
barriers and control what users access to without attacking civil rights.
Instead of being afraid of this, we should remember that citizens of other
countries may want too access our own sites. For example, they can access
the Web sites of newspapers that may be prohibited in their countries.
Countries such as China and Singapore are trying very hard to prevent
their citizens to access some Web sites that do not comply by their political
standards.
Instead of censorship, there should be promotion of education and responsibility.
People of different backgrounds should obtain access to the Internet in
order to provide cultural diversity. The AUI thinks that Internet could
be a tool for democratisation, as individuals, small parties and association
can also get access to the Internet. But in order for the Internet to
be a tool for democracy, the users must be educated so that they can learn
how to read and interpret the vast flow of information available, as well
as contribute to it.
Notes :
1) AUI's Web site :
5) "Il est défendu aux juges de (se) prononcer par voie
de disposition générale et réglementaire sur les
causes qui leur sont soumises; que, par ailleurs, la liberté d'expression
constitue une valeur fondamentale, dont les juridictions de l'ordre judiciaire
sont gardiennes, et qui n'est susceptible de trouver de limites, que dans
des hypothèses particulières, selon des modalités
strictement déterminées".
6) The <.alt hierarchy newsgroups are created without vote from Internet
users, unlike the newsgroups of other hierarchies. In the <.alt hierarchy
can be found most of the controversial newsgroups about sex and violence,
but also covering topics such as tv fan-clubs, medical interests, computer
programming , cooking and music.
7 ) Law n° 96-659 of July, 26, 1996, JO July 27, 1996, available at
:< http://www.telecom.gouv.fr/francais/activ/telecom/reglemen.htm.
8) The Official Journal publishes all French laws and regulations .
9) Decision n° 96-378 DC of July 23rd, 1996, JO July 27, 1996.
10 ) "La libre communication des pensées et des opinions
est un des droits les plus précieux de l'Homme : tout Citoyen peut
donc parler, écrire, imprimer librement, sauf à répondre
de l'abus de cette liberté dans les cas déterminés
par la Loi."
11) Decision n°88-248 DC of constitutional Coucil of January 17, 1989
concerning the law modifying the law n°86-1067 of September 30, 1986
on freedom of communication.
12 ) For an exemple of a penalty inflicted on a radio see : TGI Paris
5 février 1992, MP c/ Bellanger, Légipresse, mai 1996, III,
p.49.
13 ) AFTEL, "Le droit du multimédia", rapport réalisé
sous la direction de P. Huet avec le concours de H. Maisl, J. Huet et
A.Lucas 1996, p.171.
14 ) Articles L 111-1 and following of Intellectual Property Code.
15 ) Article 227-24 of penal Code.
16 ) Article 227-23 of penal Code.
17) Article 24 of law of 29 July 1881 on freedom of print.
18) Articles 23 and 24 of law of 29 July 1881.
19) Article 24 bis of law of 29 July 1881.
20) Article 29 of law of 29 July 1881.
21) Article 9 of civil Code.
22 ) FCC v. Pacifica Foundation, 438 U.S. 726 (1976).
23 ) ACLU v. Reno, 11th June 1996, 929 F. Supp. 824 (E.D. Pa. 1996), available
at :
31)
34) <http://www.nic.fr/info/whois.html.
35) About anonymous remailers see :
37) Michael Froomkin, "Flood Control on the Information Ocean : Living
with Anonymity, Digital Cash, and Distributed Databases", presented
September 21, 1995 at the Conference for the Second Century of the University
of Pittsburgh Scool of Law : The Adequacy of Current Legal Paradigms to
Meet Future Challenges; available at:<http://www.law.miami.edu/~froomkin/.
38) Johan Helsingius' press release of 30th August 1996.
39) "Alt .scientology.war", Wired magazine, December 1995, p.172.
40) Helsinki, Reuters, August 1996.
41) This is for exemple the case of the server of Community Connexion,
43) Yaman Akdeniz, "Pornography on the Internet" , L'Internet
Juridique,
