Two years after a French judge ordered Yahoo to prevent his countrymen from seeing the Nazi memorabilia available through its online auction site, the company still has not complied. Yahoo Web pages accessible in France continue to hawk Nazi coins, Nazi stamps, even copies of Mein Kampf.
The French consider this brazen display of Third Reich collectibles an outrageous violation of their sovereignty, since anything that incites racial hatred (as coins imprinted with swastikas and stamps depicting Hitler presumably are bound to do) is illegal in the land of Voltaire. To Yahoo, by contrast, the demand that a U.S. company operating on U.S. soil comply with French speech restrictions is an outrageous violation of the First Amendment.
The U.S. Court of Appeals for the 9th Circuit grappled with these clashing views the other day, when it considered whether to uphold a lower court's decision siding with Yahoo. "All the French court's saying is, 'Whatever you do, don't impact France,' " suggested Judge Warren Ferguson. "That's called homeland security."
Judge Melvin Brunetti seemed to see things differently. Yahoo's servers "are not doing anything at all to you," he told the lawyer defending the French court order. "They're just sitting in the United States."
Fortuitously, a study released the day after oral arguments in the Yahoo case points the way to a resolution of this seemingly intractable conflict: Rather than compel American companies to shield French citizens from offensive speech, France should take a cue from China and do the shielding itself.
Harvard law professor Jonathan Zittrain and technology analyst Benjamin Edelman have compiled a list of some 19,000 Web sites that "were inaccessible from China on multiple occasions while remaining accessible from the United States." These include sites run by human rights groups, dissidents, universities, foreign governments, news outlets, and religious organizations.
Zittrain and Edelman tested about 200,000 potentially sensitive sites, of which fewer than 10 percent were blocked. You might therefore conclude that the Chinese government's shield is not very effective. Among the top 100 sites suggested by the Google search engine in response to the words "freedom china," for example, only 32 were blocked.
On the other hand, "more than 60% of Google's top 100 'Tibet' sites were found to be blocked," along with nearly half of the top "Taiwan" sites. That suggests China's censors are doing pretty well where it matters most.
Different countries have different censorship priorities. Zittrain and Edelman report, for instance, that only 13 percent of the sexually explicit sites they tested were blocked in China, compared to 86 percent in Saudi Arabia. Surely France could achieve similar success if it focused on material that inspires racial, ethnic, or religious hatred.
And France would not be alone in this endeavor. It could draw on the help of all the other European countries that prohibit hate speech. The European Commission's proposal to harmonize hate speech standards across the continent should make it possible to work on a filtering system jointly.
The scope for cooperation would be expanded further by the Council of Europe's Protocol to the Convention on Cybercrime Concerningthe Criminalization of Acts of a Racist or Xenophobic Nature Committed Through Computer Systems. That treaty amendment would prohibit "distributing, or otherwise making available,…any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals based on race, color, descent or national or ethnic origin, as well as religion."
Translating the protocol into filtering software may be tricky. Ideally, the filter should be sophisticated enough to catch a statement like, "Those French sure are thin-skinned and intolerant." But China has shown that you can make a dent in the problem of dangerous speech even if you can't be 100 percent successful.
More important, filtering methods are bound to improve. Zittrain and Edelman note that China's censors are starting to look for key words or phrases on Web pages instead of taking the relatively clumsy approach of targeting entire sites.
China also is experimenting with a technique that redirects people who try to visit sensitive areas of the Internet to safe substitute sites. Perhaps one day wayward Web users not only won't know what they're missing; they won't even know that they're missing it.
With guidance from pioneers such as China and Saudi Arabia, France and other enlightened countries can dare to dream of that day.