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Reciprocal Blindness

Reciprocal Blindness

The Yahoo! France case and the iCraveTV case raise the same fundamental issue. In each, there is a behavior that is legal in one country (selling Nazi paraphernalia for the United States, streaming free TV across the Internet for Canada), and illegal in another country (selling Nazi paraphernalia in France; streaming free TV in the United States). In both cases, the judge in the country whose laws were being violated exercised his power to stop the violation (Judge Gomez ordering Yahoo! either to remove the Nazi material or to block it from France; Judge Ziegler ordering iCraveTV to either remove broadcast television from its site or block it from Americans). But in one case, this result was vilified as “censorship” while in the other, it was barely noticed.

This is reciprocal blindness. We see a fault in others that we can’t see in ourselves. To an American, blocking the speech of Nazis is “censorship.” And it adds insult to injury to demand that such speech be censored in the United States — where it is legal — just because it is not legal in France.

But why isn’t it “censorship” to block free TV in Canada just because it is illegal in the United States? In both cases, speech legal in one country is being blocked in that country by a court in a second. The United States blocks Canadians from getting free TV just because free TV is illegal in the United States. The French blocks Americans from getting Nazi paraphernalia on the Yahoo! auction site just because that paraphernalia is illegal in France.

Indeed, in one important respect, the iCraveTV case is worse than the Yahoo! case. In the Yahoo! case, the Court considered evidence about whether Yahoo! could take technical measures to block French citizens.[9] As Joel Reidenberg emphasizes[10], its trigger for liability was the conclusion that there were reasonable technical means for blocking French citizens from the Nazi material. Those means weren’t perfect, but the Court estimated that over 90 percent of French users could be identified.[11] But in the iCraveTV case, the technical means, though promised to be 98 percent effective, were deemed not enough. The restriction of the American court was thus greater than the restriction of French court.

Americans don’t have any monopoly on blindness. And I don’t pick this case to pick on Americans. Instead, this brace of cases teaches a general lesson. There will be no nation that has no speech that it wishes to regulate on the Internet. Every nation will have something it wants to control. Those things, however, will be different, nation to nation. The French will want to regulate Nazi speech; the Americans will want to regulate porn; the Germans will want to regulate both; the Swedes will want to regulate neither.

This chapter is about these overlapping desires for control. How will the Internet accommodate this mix? Whose rules will apply? Is there a way to avoid either anarchy or total regulation? Will the most restrictive regimes determine the freedom left for the rest of us?

In my view, we’ve seen enough to see how the story will unfold. I describe that unfolding in the balance of this chapter. But first, we should be clear about the reason why this regulation of cyberspace will occur. We should all recognize the interest the government has here and just how strong, or weak, that interest is. And, more importantly, we should recognize how the architecture of the network has changed to make securing that interest possible. As Jack Goldsmith and Tim Wu write,

Yahoo!’s arguments were premised on the 1990s vision of a borderless Internet. Half a decade later, this vision is fast being replaced by the reality of an Internet that is splitting apart and reflecting national borders. Far from flattening the world, the Internet is in many ways conforming to local conditions.[12]

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