{"id":131,"date":"2006-02-16T10:29:58","date_gmt":"2006-02-16T14:29:58","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ugasser\/2006\/02\/16\/global-online-freedom-act-of-2006-evi"},"modified":"2006-12-10T05:42:44","modified_gmt":"2006-12-10T09:42:44","slug":"global-online-freedom-act-of-2006-evil-is-in-the-details","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ugasser\/2006\/02\/16\/global-online-freedom-act-of-2006-evil-is-in-the-details\/","title":{"rendered":"Global Online Freedom Act of 2006: Evil is in the Details"},"content":{"rendered":"

<\/a> I\u2019ve just read Rep. Chris Smith\u2019s<\/a> discussion draft of a \u201cGlobal Online Freedom Act of 2006<\/a>,\u201d which has been made available online on Rebecca MacKinnon\u2019s blog<\/a>. Rebecca nicely summarizes <\/a>the key points of the draft. From the legal scholar’s rather then the activist’s viewpoint, however, some of the draft bill\u2019s nitty-gritty details are equally interesting. Among the important definitions is certainly the term \u201clegitimate foreign law enforcement purposes,\u201d which appears, for instance, in the definition of substantial restrictions on Internet freedom, and in sec. 206 on the integrity of user identifying information. According to the draft bill, the term \u201dlegitimate foreign law enforcement purposes\u201d means<\/p>\n

\u201cfor purposes of enforcement, investigation, or prosecution by a foreign official based on a publicly promulgated law of reasonable specificity that proximately relates to the protection or promotion of health, safety, or morals of the citizens of that jurisdiction.\u201d<\/div>\n

And the next paragraph clarifies that<\/p>\n

\u201cthe control, suppression, or punishment of peaceful expression of political or religious opinion <\/span>does not constitute a legitimate foreign law enforcement purpose.\u201d [Emphasis added.]<\/div>\n

While the first part of the definition makes a lot of sense, the second part is more problematic to the extent that it suggests, at least at a glance, a de facto<\/span> export of U.S. free speech standards to the rest of the world. Although recent Internet rulings by U.S. courts have suggested an expansion of the standard under which U.S. courts will assert jurisdictions over free speech disputes that arise in foreign jurisdiction, it has been my and others <\/a>impression that U.S. courts are (still?) reluctant to globally export free speech protections (see, e.g. the 9th Circuit Court of Appeal\u2019s recent Yahoo! ruling.)<\/p>\n

Indeed, it would be interesting to see how the above-mentioned definition would relate to French legislation prohibiting certain forms of hatred speech, or German regulations banning certain forms of expression\u2014black lists, by the way, which are also incorporated by European subsidiaries of U.S. based search engines and content hosting services.<\/p>\n

While the intention of the draft bill is certainly a legitimate one and while some of the draft provisions (e.g. on international fora, code of conduct, etc.) deserve support, the evil\u2014as usual\u2014is in the details. Given its vague definitions, the draft bill (may it become law) may well produce spillover-effects by restricting business practices of U.S. Internet intermediaries even in democratic <\/span>countries that happen (for legitimate, often historic reasons) not to share the U.S.\u2019 extensive free speech values.<\/p>\n

Addendum: Some comments on the draft bill from the investor’s perspective here<\/a>. Note, however, that the draft bill also includes foreign subsidiaries of U.S businesses to the extent that the latter control the voting shares or other equities of the foreign subsidiary or authorize, direct, control, or participate in acts carried out by the sbusidiary that are prohibited by the Act.<\/p>\n","protected":false},"excerpt":{"rendered":"

I\u2019ve just read Rep. Chris Smith\u2019s discussion draft of a \u201cGlobal Online Freedom Act of 2006,\u201d which has been made available online on Rebecca MacKinnon\u2019s blog. Rebecca nicely summarizes the key points of the draft. From the legal scholar’s rather then the activist’s viewpoint, however, some of the draft bill\u2019s nitty-gritty details are equally interesting. […]<\/p>\n","protected":false},"author":202,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1173,1151,1180,116,279,1182,1174],"tags":[],"class_list":["post-131","post","type-post","status-publish","format-standard","hentry","category-corporate-social-responsibility","category-e-compliance","category-freedom-of-expression","category-policy","category-privacy","category-search","category-sphere-of-influence"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/posts\/131","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/users\/202"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/comments?post=131"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/posts\/131\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/media?parent=131"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/categories?post=131"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/tags?post=131"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}