The dark side of the Internet

Freedom has always been part of the American mythology. The Constitution's Bill of Rights bristles with freedoms. "Freedom of the Seas" was one of President Wilson's Fourteen Points at Versailles. Roosevelt had his Four Freedoms. Even the Soviet Union's Leonid Brezhnev loved freedom. He said his only problem with free elections was that "you don't know who is going to win." And now, there is a new freedom: Freedom of the Internet. And the jury's still out on who will win.

In France, there is a law that prohibits racism in writing, on television or on the radio. In 2000, French lawyers used the law to prevent Yahoo! from hawking a vast collection of Nazi mementos at auction. The transaction was not illegal in California, where Yahoo!'s servers resided, but the information on the Yahoo! Web site was fully available in France.

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Yahoo!'s argument was essentially that the Internet was a sovereign entity that created its own law, and that it would be impossible to comply with the laws of every jurisdiction receiving a transmission. The Web, by its very nature, interacts with people throughout the world, argued Yahoo! founder Jerry Yang. It would be an unconscionable burden on Yahoo! and its business if it had to comply with differing laws in myriad jurisdictions.

For historical comparison, one can draw this parallel: Eminent 19th-century English judge Lord Ellenborough, when confronted with a judgment from authorities in Tobago, where the defendant named had never been, nailed a copy of the summons to the courthouse door. The judge expressed his response with the rhetorical notation: "Can the island of Tobago pass a law to bind the whole world? Would the world submit to such assumed jurisdiction?"

Yang's statements on the Internet's "necessary" sovereignty implied that the world, in the case of Yahoo!, should so submit.

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Yang lost the suit because it came out that there was identification technology available to Yahoo! that could effectively block out most French consumers. After exploring some legal and extralegal alternatives, Yahoo! saw the light and decided to comply with French law by removing all Nazi memorabilia from its sites, saying that it "will no longer allow items that are associated with groups which promote or glorify hatred and violence."

Many forget that Yahoo! was hailed at the time as a champion of Internet freedom for defying French regulation. Five years later, however, it agreed to act as the handmaiden of the Chinese government in identifying dissidents sending incendiary messages from Yahoo! e-mail accounts. By 2005, Yang had changed his tune, saying that, "to be doing business in China, or anywhere else in the world, we have to comply with local law."

Internet freedom, however, still does not reign supreme. A federal judge in San Francisco recently closed down Wikileaks.org, a Web site specializing in the disclosure of confidential information.

Apparently, a Cayman Islands bank, Julius Baer Bank and Trust, sued Wikileaks because a former employee posted on the site some secret internal documents it claimed were purloined from the bank. According to Wikileaks, the documents revealed alleged "trust structures used for asset hiding, money laundering and tax evasion."

But closing down a Web site is a largely futile process. Islamic terrorists often have Web sites they use to win over adherents to jihad, raise money and advocate violence. Least conspicuous among visitors to these sites are counter-terrorism agents looking to thwart attacks and make cases.

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Some civilians have been active in trying to remove the sites from the Web, but the terrorists simply go to another Internet host, either at home or in some other, more "terror-friendly" state, and the Web sites reappear online.

In the Wikileaks case, the court, by way of permanent injunction, ordered the Internet "registrar" to disable the Web address and lock it down to prevent transfer to another registrar. But the Web site remained available at its IP address and at "mirror" sites registered abroad.

Meanwhile, Wikileaks' lawyers were preparing an attack on the court's order as a "prior restraint" of speech, analogous to the 1971 Pentagon Papers case. The judge later reversed his decision and allowed the site to re-open, citing First Amendment concerns and noting that the injunction was moot since all the information was out there anyway. The Court realized that the genie was out of the bottle.

State censorship and regulation of content seem alien to the US Constitution and way of life. In his 1933 monograph "Other People's Money and How the Bankers Use It," Justice Brandeis wrote that, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

But, the Internet plays host to congeries of illegal activities, from terrorist Web sites to exhibition of private documents to libelous statements to seemingly ubiquitous pornography. The great Judge Learned Hand wrote of "freedom for the ideas we hate."

Hardly seems like freedom to those who are hurt. But, if there is a line to be drawn online, where will that line be?

James D. Zirin is a New York-based lawyer. He is co-host of Digital Age, a cable television show about the Internet's intersection with the issues of the day.