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The recent announcement that Yahoo Auctions will limit sales of German Nazi-era medals, photographs, belt buckles, driver’s licenses and similar alleged threats to European democracy and social order won’t end what the French call “L’affaire Yahoo.” In the United States, most Internet censorship disputes involve sexually explicit material. Across the Atlantic, the cultural guardians of Europe’s budding Internet Taliban agitate against political pornography. Both sets of Net hysterics are misguided. But those in Europe have an easier time making their arguments stick because they don’t have to confront inconvenient First Amendment free speech protections. The continent’s tribal wars and authoritarian traditions have left a rich residue of political extremism to occupy the Old World’s newest censors. Inquisitions on computers and politics also provide an opportunity to vent fears about Information Age imperialism and globalization. So the cybercensors fret about Napster allowing neo-Nazis to trade skinhead rock songs. In Germany, they bash Microsoft for buying software from a company owned by a Scientologist and call for the banning of Windows 2000. And all the European Net nannies worry about American, Canadian, British, Swedish or other free speech zones that don’t automatically suppress mention of the Third Reich. But even some French observers initially found a Paris court’s attempt to find a way to censor Yahoo whimsical. A headline in Le Monde last summer said the case “embarrassed” French justice. Yahoo has subsidiaries in France and other European countries. The servers for Yahoo-France are located in Santa Clara. Last year, a French court found that Yahoo and Yahoo-France violated French law by allowing French citizens Web access to Nazi memorabilia and militaria on the U.S. auction site. In France, it’s illegal to exhibit such items for sale. French Judge Jean-Jacques Gomez initially appointed a committee of three experts, one each from France, Britain and the U.S., to determine whether Yahoo had the technological means to block French Web surfers. The British and American experts agreed that compliance was impossible. The French court issued an injunction anyway. It, in essence, ordered Yahoo to determine the nationality of surfers visiting its servers in Santa Clara, Calif., and to ensure that French users can’t view materials which are illegal under French law. In December Yahoo filed a declaratory relief action in federal court in San Jose, Calif., seeking to block enforcement of the French order on the grounds that the Paris court lacked jurisdiction. Yahoo’s California counsel Michael Traynor says that the company “will go forward” with the federal court action despite the decision to end Yahoo Auction sales of the disputed materials in the United States. (They were never sold on Yahoo-France’s site.) A representative of the League Against Racism and Anti-Semitism, one of two plaintiffs in the Paris action, told The Wall Street Journal that his group opposes a Yahoo subsidiary’s continued hosting of the entire text of Adolph Hitler’s “Mein Kampf.” That book is banned in many countries. Some American companies avoid such suits in Europe by blocking access to banned materials from European Web addresses with country identifiers. And Amazon.com sells “Mein Kampf” on its U.S. site, but not on its German or French ones. Filters are easily evaded by signing up for AOL or any other Internet service that doesn’t use country identifiers in its address. French, German and other European surfers also have access to anonymizer programs. But the Paris court cited filters and self-identification procedures as a way of complying with its order. “The solution is half-assed and trivially avoidable,” wrote the court’s British expert Ben Lurie in an online statement entitled “An Expert’s Apology.” He called the prescribed technical remedies “inaccurate,” “ineffective” and “pointless.” What exactly was the French tribunal thinking when it suggested that Yahoo could simply ask site visitors in Santa Clara to identify their nationality? Did it expect Gallic troublemakers to blithely respond, “Oh, yes, I’m French. Sorry for the bother, and don’t show me anything naughty.” Yahoo-France already posts warnings that viewing certain U.S. sites could violate French law. Perhaps the subsidiary’s parent could add something more imploring, along the lines of “Dear Monsieur/Madame Potential Nazi Skinhead, Holocaust Denier, or Klaus Barbie fetishist. Would you be so kind as not to view anything that’s against the law in France? If you see some Hitler stamps or soup bowls with swastikas, you might undermine the legitimacy of the Fifth Republic. That would be culturally insensitive, and we’d feel really bad about it. So have a nice day and go away.” The danger to Europe doesn’t come from skinheads with guitars, Nazi coin collectors or multinational companies. It comes from politicians and voters. French neo-fascist Jean-Marie LePen received 15 percent of the vote in the 1999 presidential election. Members of Joerg Haider’s Freedom Party serve in the Austrian government. The Italian fascist MSI party was in the 1993-94 Berlusconi coalition government. Even tame, out-of-the-way Denmark has an eager neo-fascist movement. For ideological cross-dressers, there’s the improbable “fascist Maoism” of Belgian Jean Francois Thiriart. The Internet and the World Wide Web aren’t creating European political extremists. Neither are Web servers in Santa Clara. The Internet is “pure information,” argues Lurie in his “Apology.” Lurie is right, his French employer is wrong, and the United States should never allow a foreign tribunal to circumvent constitutional free speech guarantees. That’s why the jurisdictional issues raised by the Yahoo declaratory relief action must eventually be resolved by a U.S. court. It’s against the law to publicize Falun Gong activities in China. Should those laws be enforceable against Web servers in the United States? Making human rights complaints violates Myanmar law. Should the United States help keep that government’s thugs from being exposed on the Web? For now the best defense of Internet free speech comes not from the American legal system, but from the Net itself. Information lost on one site is easily transferred to another. Lurie says that the Paris case is ultimately being fought over “what people think.” He finds the precedent set by the case to be that “the Internet does not adapt well to the control of subject matter, not that governments will intervene and censor it successfully.” And that’s a state of affairs even a French court can’t change. George M. Kraw is a San Jose, Calif., attorney. His e-mail address is [email protected]

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