It’s Location, Location ...
Every country has its own way of regulating libel, gambling, pornography or hate speech. But the Internet, on which all those things are available anywhere in the world, has effectively erased those boundaries, forcing courts to scramble for ways to enforce local laws. At least one foreign court and U.S. legislature have turned to a burgeoning technology called geolocation to keep those borders intact at least virtually.
The technology allows Internet service providers to determine where a subscriber is by tracking the user’s numeric address, the unique number assigned to each computer by the ISP. But critics say the technology is too unreliable to resolve jurisdiction disputes.
“I don’t know how you could say with 100 percent accuracy where every Web surfer is coming from,” says Tyler Mitchell, a Canadian systems analyst who is writing a book on geolocation. “What you can do is locate someone within a certain geographic range, but there’s a big margin of error.”
For example, since numbers are assigned to ISPs, which then dole them out to their customers, the technology often can determine only where a person’s ISP is located, not the individual user.
A second technique, used by advertising companies, can locate a user by how long it takes signals to ricochet between that person’s computer and an advertiser’s computer. However, free online services like anonymizer.com can disguise the person’s whereabouts.
But that hasn’t stopped courts and lawmakers. A French court in 2000 ordered American ISP Yahoo to use geolocation to identify where people were logging on to its site. The ruling came in an ongoing legal dispute between the Silicon Valley-based Internet server and two French nonprofit organizations that sued Yahoo for making Nazi memorabilia accessible online, violating the nation’s criminal code.
A Tall Order
Noting that Yahoo already used geolocation to target display ads, the French court ordered the company to identify and block Web surfers in France from visiting auctions that violated French law.
At trial, Yahoo called in Vint Cerf—a scientist often called the father of the Internet—to testify that the order was beyond the capability of the technology.
“It wouldn’t matter if the technology was 100 percent accurate,” says Yahoo senior counsel Mary Catherine Wirth. “To comply with the court order we’d have to do advance review of all content uploaded by hundreds of millions of users to see if they violate any law anywhere on Earth. It’s just not possible.”
Yahoo filed suit in the U.S. District Court for the Northern District of California seeking a declaratory judgment that enforcement of the French court’s order would violate the First Amendment. In 2001, the California court agreed. In August, the 9th U.S. Circuit Court of Appeals reversed on grounds that the court had no personal jurisdiction over the defendants. Yahoo v. La Ligue Contre Le Racisme et l’Antisemitisme, 379 F.3d 1120. Yahoo has asked for an en banc hearing.
In Pennsylvania, a law that was aimed at blocking access to child pornography took an approach similar to that of the French courts, ordering Internet servers to block Pennsylvania residents from accessing child porn. Geolocation was discussed, but ultimately the statute ordered ISPs to use Internet filters, which also use numeric addresses to find computers on the Web.
U.S. District Judge Jan E. DuBois in Philadelphia ruled in September that the statute violated free speech rights because it blocked more than 1 million legitimate sites, but shut down only about 400 offenders. Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 606.
Geolocation technology is getting more sophisticated, but the real problem, lawyers say, is that courts haven’t agreed on how the Internet fits into common-law schemes of jurisdiction.
“There needs to be a sensible standard to decide jurisdiction on the Net,” says Washington, D.C., lawyer Kurt Wimmer, who practices media law. “Otherwise, publishers have to worry that something they’ve published offends the law somewhere in the world.”