Murphy had installed a Greek satellite company’s decoder card in her pub’s satellite TV system, allowing her access to the Greek telecasts of EPL games. As a result, her pub could show live soccer games at three in the afternoon–something other pubs, subscribing to English broadcast rights-holders Sky Sports and ESPN, could not offer. Sky/ESPN are obligated by their license with the EPL to black out EPL games played from 3-5 PM, a practice aimed at keeping fans in the stadiums instead of the bar stools and sofas across England.[1]

In addition to depressing attendance at matches, the use of foreign decoder cards strikes at the very foundation of the EPL’s broadcast business model: using a foreign decoder allows pub owners to get access to their soccer content at a fraction of the cost of domestic decoder. A public display subscription to domestic service costs a pub about $747 per month, whereas a subscription to NOVA (the Greek satellite provider) costs a fraction of that amount, about $184 per month. The ability to charge English subscribers a premium for their own domestic content has allowed the EPL to sell its domestic broadcasting rights for about $1 billion a year.[2]

This week’s ECJ ruling cut to the core of this business model: they ruled that the national law that made the use of such foreign decoder cards illegal was “contrary to EU law” in that it hindered a “completion of the internal market” for goods or services. Publicans like Ms. Murphy can thus no longer be stopped from (or fined for) ordering and using foreign decoders in their satellite receivers. They furthermore ruled that the EPL cannot circumvent these rules by inserting terms into their license agreements which would prevent broadcasters from selling decoders outside of their licensed territory. The scheme by which the EPL and its partners were able to extract a premium from English subscribers, according to the court “cannot be regarded as forming part of the appropriate remuneration” that rights-holders are due. In yet another potential blow to the EPL (and sports leagues throughout Europe), the court said (in what is likely dictum) that the EPL “cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works” within EU copyright law. The ECJ said that only the anthem, on-screen logos, and other visual elements added by the EPL could constitute copyrightable works.

So what is the EPL to do? Its whole raison d’etre is to leverage the value of bundling the broadcast and sponsorship rights to top-flight English soccer and offer them to the highest bidders. The League took some comfort in the ECJ’s finding that the unique visual elements that the EPL tacks onto its broadcasts are subject to copyright protection. As a practical matter, this seems to be rather slight solace: once it is legal for the bartenders to buy and use these decoders in their pubs, preventing them from showing the part of the broadcasts that feature the League anthem or the League’s iconic logo seems like a chore indeed. As a legal matter, it would seem rather illogical for the EPL to be able to circumvent competition law by copyright protection what it cannot get through contract. As soccer commentators are apt to say in a close match, there is still “all to play for,” as the English court on remand might take a more favorable stance on the copyright issue and thus give the EPL the result they seek.

The issue of international cooperation in the fight against cybercrime will be on the table at the Twelfth United Nations Congress on Crime Prevention and Criminal Justice, due to take place in Salvador, Brazil, from April 12-19, 2010 (see introduction and draft agenda here). The main theme of the Congress will be “comprehensive strategies for global challenges: crime prevention and criminal justice systems and their development in a changing world.” The Secretariat of the United Nations Office on Drugs and Crime (UNODC), in a working paper prepared in anticipation of the Congress, has suggested that “the development of a global convention against cybercrime should be given careful and favourable consideration” (see report by heise.de (in German),  Google translation here). Four regional preparatory meetings were held in advance of the Congress and, as the UNODC’s working paper notes, calls were made at all four for the development of an international convention to tackle cybercrime. The Latin American and Caribbean countries were strongly in favor, noting “the imperative need to develop an international convention on cybercrime” (see Latin American and Caribbean Regional Meeting Report, at para. 41). Will 2010 see the launch of negotiations for a UN Convention on Cybercrime?

A Transnational Problem

In its working paper, the UNODC notes that cybercrime is to a large degree transnational in nature. Issues of national sovereignty can impede criminal investigations in the absence of active cooperation between law enforcement agencies of the jurisdictions involved. The speed at which cybercriminals can inflict harm and move on to evade detection also puts enforcement agencies under heavy time pressures, making the need for international cooperation all the more pressing. The UNODC identifies legislative convergence as crucial to effective cooperation. This is because many countries base mutual legal assistance on the principle of dual criminality, which requires that the offense in question be punishable in both jurisdictions. Divergence in legislation can therefore undermine effective enforcement. Where a particular jurisdiction lacks comprehensive cybercrime legislation or enforces it poorly, it may turn into a safe haven for cybercriminals. This kind of divergence can only be tackled by concerted efforts to harmonize legal standards and enhance cooperation between jurisdictions.

Already On the Job: the Council of Europe’s Convention on Cybercrime

Currently, the leading international convention on cybercrime is the Council of Europe‘s Convention on Cybercrime, which was signed in Budapest in 2001 and entered into force in 2004. The Council of Europe, which is not an organ of the European Union, was founded in 1949 to promote human rights, democracy and the rule of law in Europe (see Wikipedia entry here). It current has forty-seven members, including the twenty-seven members of the European Union and Russia. As at December 2009, the Convention on Cybercrime had been signed by forty-six states and ratified by twenty-six (i.e. approved in accordance with domestic constitutional requirements and thus rendered enforceable). Though the Convention was drafted under the aegis of the Council of Europe, it is open to signature by non-members. Four non-members participated in the negotiations of the treaty and signed it (the United States, Canada, Japan and South Africa), and one non-member has ratified it (the United States). The Convention is not, therefore, strictly a regional agreement. Yet the fact that it has only been ratified by one non-European state suggests that it cannot at present be described as a global convention.

The Convention lists a number of crimes which signatories are required to implement in their domestic law, including hacking, child pornography offenses, and certain offenses related to intellectual property violations. It also sets out a number of procedural mechanisms which signatories must put in place, including granting the power to law enforcement authorities to compel Internet Service Providers to monitor a person’s online activities. Chapter III calls upon signatories to cooperate to the widest extent possible in the investigation and prosecution of cybercrime offenses (see the Electronic Privacy Information Center’s summary of the Convention and other resources here).

The Convention on Cybercrime: Can it Become a Global Standard?

The Council of Europe’s Convention on Cybercrime has now been in force for more than five years and has the widest coverage of any international agreement dealing with cybercrime (estimated to cover one third of current internet users). As we have seen, signature is open to countries which are not members of the Council of Europe, and four non-European countries have signed it already. Could the existing Convention on Cybercrime provide a global standard? If so, should the upcoming conference focus on generating the momentum for wider signature and ratification of the Council of Europe Convention?

In his Contribution to the upcoming Congress, the Secretary General of the Council of Europe, Thorbjørn Jagland, notes that the Convention on Cybercrime provides a “clear and comprehensive solution” and has received strong support from the Asia-Pacific Economic Cooperation, the European Union, Interpol and the Organization of American States, among others. Mr. Jagland concedes that it is understandable that, for political reasons, countries may be reluctant to accede to a treaty which they have not participated in drafting. He notes, however, that accession to the Convention guarantees a signatory membership of the Cybercrime Convention Committee and thus involvement in any further development of the treaty. Another downside of launching negotiations on a new, global convention is that it could have the effect of suspending the implementation of legislative reform already underway. Mr. Jagland further questions whether consensus could be reached within the framework of the UN on the kind of procedural law and cooperation measures which the current Convention provides.

Criticism

The Secretary General of the International Telecommunication Union (a branch of the UN), Hamadoun Touré, is reported to be critical of proposals to adopt the Convention as a global standard. The Convention was drafted mostly by and for European states, and is also now somewhat outdated  (see heise.de report here (in German), and Google translation here). Russia, which is a member of the Council of Europe but has not signed the Convention, reportedly backs Mr. Touré’s position. Brazil considered signing the Convention, but then declined to do so, voicing reservations about certain aspects of the Convention, including the provisions relating to the criminalization of intellectual property infringements (see here).

These reservations about the Convention on Cybercrime suggest that negotiating a new UN Convention could prove difficult: globally, there is clearly a divergence of views regarding the appropriate global standards. Furthermore, the procedural and cooperation commitments under the Convention could be difficult to scale up to a global level. The issues these commitments can give rise to are illustrated by the domestic criticisms directed at the government of the United States when it adopted the Convention. For example, it was alleged that the Convention could have the effect of requiring the United States to enforce foreign laws curbing free speech or to monitor the communications of political dissidents on behalf of foreign governments (see Ars Technica report here). Spurious as some of the criticisms may have been, it can be anticipated that attempting to reach a consensus on these matters in a global forum would be fraught with difficulty. Can crucial players such as the Russian Federation or the People’s Republic of China, which are widely suspected of sponsoring various forms of cyberattack for political purposes, be expected to agree to high standards of international cooperation in investigating and prosecution cybercrime? (See, e.g., the 2007 distributed denial of service attacks on Estonia, or the China-based attacks on Google). The UN has a long history of divisions between developed and developing countries, and the Brazilian reservations regarding intellectual property offenses suggest that these divisions could play out once again in negotiations on cybercrime.

A Global Solution Is Needed

Cybercrime does not only affect developed economies: there are now more internet users in developing countries than in developing countries, and one study suggests that emerging economies may be particularly at risk from cybercrime (see here). It is clear that effectively combating cybercrime will require global cooperation, involving a much broader group of countries than the current signatories of the Council of Europe’s Convention on Cybercrime. This will undoubtedly prove a challenge: going back to the drawing board to draft a global convention from scratch could involve years of diplomatic wrangling that may never bear fruit. Given that the existing Convention has proven reasonably effective and that signatories have gained valuable experience in implementing it, it seems wasteful to ignore it. Yet seeking to make the Council of Europe Convention a global standard in its current form is likely to prove no less controversial, as it would likely be seen as being thrust upon countries which have had no say in drafting it. But the Council of Europe has recognized that the nearly ten-year-old treaty could do with being updated, and it is already open to signature to non-members. Perhaps the upcoming Congress could provide an opportunity to suggest updating the Convention on Cybercrime with a view to extending its membership, building on what it has already achieved while addressing the concerns of non-members.

Among the companies targeted for criticism are Google, Amazon, McAfee, Yahoo, eBay, Microsoft, Apple and Verizon. These hearings may mark the beginnings of legal changes that could require information and communications technology companies to protect users’ rights overseas. The potential legal ramifications of these changes are unclear at present, though they are the subject of heated debates, as we will see below.

The Senate Hearings

U.S. Senator Dick Durbin of Illinois chaired a hearing before the Judiciary Subcommittee on Human Rights and the Law on Tuesday March 2^nd to review the practices of information technology companies in countries that restrict free access to the internet.

Senator Durbin sent letters to thirty companies requesting information on their business practices in China and other countries that censor the internet. The senator also encouraged companies to join the Global Network Initiative (GNI), a group of corporations, academics, human rights groups, investors and others committed to protecting internet users’ rights to freedom and privacy according to a specific code of conduct. (As of now, only the original three member corporations have joined the GNI, which is discussed further in the section below. ) The GNI submitted a written statement for the hearing, available here, which stresses the need for more communication between companies in the information and communications technology sector in order to identify important human rights issues. The GNI also affirmed its view that there is a strong need for more corporations to join the GNI and commit to its principles.

Testifying at the hearing were Michael Posner (Assistant Secretary of Human Rights, Democracy and Labor at the State Department), Daniel Weitzner (with the National Telecommunications and Information Administration of the Department of Commerce), Nicole Wong (Google’s Vice President and Deputy General Counsel), Rebecca MacKinnon (Visiting Fellow at Princeton University’s Center for Information Technology Policy and a drafter of the Global Network Initiative), and Omid Memarian (an Iranian blogger living in the U.S. since his release from detention by the Iranian security services in 2004).

Mr. Memarian testified about how his website was shut down—not by the Iranian government, but by his American domain and host provider, because of restrictions on transactions with Iran. He discussed how such restrictions and sanctions prevent Iranian dissidents from downloading software (including, for example, Google Chrome) and publishing their opinions. He also made several suggestions about how the U.S. government and American corporations could provide technologies that would help promote internet freedom in Iran, and further argued that a freer Iran would greatly help the security of the region.

Nicole Wong’s testimony reviewed Google’s recent problems with China and affirmed Google’s unwillingness to keep censoring search results for Chinese users. She stated that Google would “reconsider [their] approach” in China if the situation worsened after more monitoring. Beyond restating Google’s decision to stop censoring search results in China, she did not commit to any concrete action. However, she discussed various strategies that governments could use to combat censorship. She also analyzed the issue from an economic perspective, elaborating on the damaging effects of internet restrictions on both the “host” country and on foreign companies.

Rebecca MacKinnon testified about authoritarian regimes’ exploitation of the internet to cement their power and suppress dissent. Ms. MacKinnon discussed and countered the view, popular in the 1990s, that the internet by its nature would elude and eventually defeat authoritarianism. It was then widely believed that no government could truly stop the spread of information over the internet. The internet, the theory went, would be an invaluable and unstoppable weapon in the hands of dissidents.

Contrary to predictions, as China and Iran in particular have demonstrated, authoritarian governments have adapted to and co-opted the internet. Filtering, deletion of content by internet companies, cyber-attacks, politically motivated law enforcement, and device-level controls are the major techniques a government may use to control the spread of potentially threatening information over the internet.

Mr. Posner and Mr. Weitzner made general comments in support of internet users’ liberties and of using business regulation to promote free exchange.

The Corporations’ Response

The point of the hearings, as suggested by Senator Durbin’s letters to the various companies, was to highlight the role corporations can play in either reinforcing or undermining government surveillance and control of the internet. Senator Durbin’s opening remarks discussed how pressure from U.S. companies and the government influenced the Chinese government to back down from its decision to require all computers sold in China to include filtering and information-gathering software. Ms. Mackinnon also discussed ways in which corporations could fight internet censorship, from locating servers outside the territories of authoritarian countries to refusing to comply with informal demands from governments to creating surveillance-circumvention technologies.

However, only three corporations in the sector have committed to the GNI code of conduct: Google, Microsoft, and Yahoo. Whether these companies will adhere to the code of conduct is uncertain, as the New York Times points out.

Additionally, AT&T, Skype, and McAfee have committed to discuss joining GNI.  Facebook and Twitter were invited to send representatives to the hearings but declined. Senator Durbin expressed his disappointment in this unenthusiastic but probably inevitable response.  Without legal pressure, it is unlikely that corporations will take actions against their own self-interest by defying laws in countries where they do business.

Possible Legal Consequences

At this time, enactment of any new legislation is far off. The bulk of lawmakers’ attention is focused on exhorting companies to voluntarily comply with GNI standards.

However, many have made legislative proposals and suggestions. For instance, Rebecca MacKinnon has argued for legal changes allowing targets of state repression to sue U.S. companies who turned over information on them. Additionally, Senator Durbin is working on legislation to compel companies to either defy censorship overseas or face civil or criminal penalties at home, the St. Louis Post-Dispatch and PC Magazine report. He has not stated what actions would trigger these penalties under the hypothetical bill. However, this is not a new idea: some activists have been proposing the Global Online Freedom Act (GOFA) for years, as the Guardian reports, which would make it illegal for a U.S. company to provide information or technology aiding restriction of internet services. Brendan Ballou, who blogs on Harvard Law Professor Jonathan Zittrain’s website, analyzes some aspects and limitations of the GOFA here.

Criminal or civil penalties in the U.S. may simply present U.S. companies with the following calculation: will defying the U.S. law cost them more or less than circumventing internet restrictions in China or Iran? The efficacy of such a bill is questionable. It may present some companies with a difficult choice: they must either violate the law at home, or abroad. Furthermore, many of the technologies that make internet-restriction possible were developed in U.S. and European countries at the behest of their governments, to aid in lawful surveillance in those countries. Nokia Siemens made this point in response to a European Parliament resolution condemning its technological aid to the Iranian government and calling for a ban on surveillance technology exports to certain countries, as Ars Technica reports.  This suggests that the scope of the bill will have to be very clearly defined if it is to differentiate between surveillance carried out in the most repressive countries and surveillance in western democracies.

Ragbag security legislation

The bill is a ragbag of security-related provisions, spanning a diverse range of issues such as online identity theft, video surveillance, stadium violence, and dangerous driving. The law apparently also authorizes the French authorities to use malware to obtain evidence on criminal suspects, for example by covertly uploading software to their PCs to log their keyboard inputs. While the express purpose of the bill is to set out the framework for the operations of law enforcement agencies for the next five years, it focuses particularly on the technical means that can be employed by the police and judges.[2]

The provision that has proven most controversial is draft article 4, which provides for the filtering, on the authority of ministerial orders, of websites hosting child pornography. The 312 to 214 vote in favor by the Assemblée is unlikely to mark the end of the controversy, as the upper house, the Sénat (Senate) has yet to debate and approve the law. This post considers the text of the provision and the debates surrounding it, before comparing the proposal to similar proposals and existing filtering systems around the world.

Filtering by ministerial order

Draft article 4 is explicitly targeted at, and limited to, the “requirements of the fight against images or representations of minors” prohibited by the Code Pénal (Criminal Code), i.e. child pornography. There is no leeway under the current wording of the article for blocking sites other than those which provide access to child pornography. In terms of procedure, as pointed out by the Ministry of the Interior’s press release on the law, “the rule is simple: the Minister for the Interior communicates to ISPs a blacklist of sites and online content to be blocked, and it is the ISPs who prevent access to those sites and content from computers located in France.”

Legislative Debates

Article 4 was one of the main points of contention in the legislative debates over the bill. According to Le Monde, the (right wing) majority accused the left, which opposed the bill, of turning a blind eye to the kind of materials easily available online. The left, on the other hand, protested against the “diabolization” of the internet, a hostility which Green députée (Representative) Martine Billard sees as rooted in the government’s frustration with its inability to control the internet. The opposition further attacked the bill on the grounds that it fails to address either the victims of the crimes at issue or those who create the images, but rather focuses only on the means of transmission.

Procedural Safeguard

One crucial amendment to the bill was introduced during the debates in the Assemblée Nationale by député Lionel Tardy, a member of the majority UMP party. The amendment requires the approval of a judge before the ministerial order to block a given site can be put into effect. According to Le Monde, the bill sponsors expressed their reservations regarding this amendment (and in particular its potential to slow down the enforcement procedure), but in the end chose not to oppose it. This decision may have been based on a recognition of the validity of the opinion of the Commission des Lois (Law Commission), which was of the view that the absence of this procedural safeguard could lead to the law being struck down as unconstitutional (as happened to the HADOPI law last year).

Criticism

None of the critics of LOPPSI argue that child pornography ought not to be fiercely cracked down on. Rather, a leading theme of criticism of the bill is a concern that, by enshrining a ministerial power to order the blocking of internet sites, LOPPSI lays the foundations for a system of internet filtering that could easily outgrow its original purpose. French cybercrime expert Guillaume Lovet (quoted here), notes that the legislation gives the French government a “foot in the door,” and observes that it reflects a growing international trend of “legislate first, address accountability later.”

Blogger Jean-Michel Planche notes that, if the law is passed, the internet will become the first infrastructure network (e.g. roads, electricity, gas, postal services) to come under the control of the Ministry of the Interior, and wonders what implications this may have as the internet’s role as a platform for all kinds of social and economic exchanges grows.

A number of critics have also questioned the effectiveness of the bill, remarking that this type of ISP-level filtering would do little to prevent the determined and tech-savvy from accessing offending websites, for example through virtual private networks (VPNs) (see e.g. this online LOPPSI forum).

International trends

The explanatory notes to LOPPSI mention the fact that “neighboring democracies” such as Denmark, the Netherlands, Norway, Sweden and the United Kingdom have put in place technical measures enabling the blocking of access to specified sites from within their territories (though these have not been formalized in LOPPSI-like legislation; Le Monde provides a useful map which identifies various countries around the world which have adopted targeted filtering of child pornography sites). The experience of filtering in these countries is not encouraging with regard to the accountability of blacklisting systems.

The blacklists maintained by a number of countries, including Denmark, Norway, Australia and Thailand, have been leaked through Wikileaks over the last few years. The Thai government’s blacklist, aimed at child pornography, allegedly included 1,203 political sites which were thought to criticize the Thai king, in breach of Thailand’s strict lèse majesté laws (see ZeroPaid post here). But even in the case of western democracies, blacklists have been accused of being open to abuse: Forbes reported that the blacklist compiled by the Australian Communications and Media Authority, which is meant to target child pornography and terrorist websites, was found to include the websites of a tour operator and a Queensland dentist’s practice. The U.K. filtering system came under fire in 2008 when it was found that six major British ISPs had blocked access to a Wikipedia page which contained an image reproducing a controversial Scorpions album cover (see report from The Register).

An interesting contrast to LOPPSI is the fate of a recent German filtering proposal, the Gesetz zur Erschwerung des Zugangs zu kinderpornographischen Inhalten in Kommunikationsnetzen (Law on the Restriction of Access to Child Pornography Content in Communication Networks), which was initially approved in the summer of last year by the German lower house, the Bundestag (see Deutsche Welle report). Unlike the French bill, the German law would not have blocked access to the offending sites but would have thrown up a warning page displaying a large red stop sign. The stop sign would notify web users of the nature of the content they were seeking to access, but nevertheless allow the users to proceed if they so choose. The proposal met with considerable public opposition, including an online petition signed by more than 130,000 people (the biggest online petition in Germany to date). Elections in September 2009 resulted in changes to the governing coalition, and the liberal FDP made it clear, during the talks that led to it joining the government, that it would not support the filtering provisions. The filtering strategy was formally dropped on Feburary 8, 2010, in favor of a policy targeted at deleting offending websites rather than blocking them (see Opennet report).

Conclusions

Looking at the wording of article 4 of LOPPSI alone, the concerns of some of the bill’s critics may seem overblown. Few dispute the pressing need to fight the dissemination of child pornography online. Even if ISP-level filtering is unlikely to deter the most resourceful seekers of such content, what limiting effect it does have must surely be welcomed. Regarding the criticism that the bill focuses only on intermediaries, it is clear that other legislation targets the creators of child pornography. Furthermore, in many areas of law enforcement, targeting intermediaries often proves to be the most effective means of achieving effective enforcement. Regarding blacklists, there is a valid argument that releasing the blacklist publicly could compromise the aim of suppressing access to the sites concerned, as it would provide potential offenders with an “address book” of prohibited sites, which the more tech-savvy could then easily access. However, the patchy record even of liberal democracies suggests a strong need for accountability mechanisms in the administration of any kind of blacklist system. In this respect, the amendment introduced by Mr. Tardy is a welcome and necessary procedural safeguard. Nevertheless, there is little doubt that its sufficiency, and indeed the legitimacy of any kind of filtering strategy, will be much debated as LOPPSI makes its way through the French legislative process.

[2] Note that French criminal judges can be much more intimately involved in investigation and evidence gathering than their common law counterparts.

Google’s recent announcement that it is no longer willing to censor content on its China-based search engine, google.cn, has once again highlighted the difficulties U.S.-based online service providers face in the Chinese market. The reason given by Google for the move was a “highly sophisticated and targeted attack on [its] corporate infrastructure originating from China,” which was apparently aimed at accessing the gmail accounts of Chinese human rights activists. Though this has little to do with international trade or the World Trade Organization (WTO), a number of commentators have attributed much of Google’s loss of patience with the Chinese government as stemming from the government’s pattern of using of internet filtering and blocking against foreign service providers. Foreign Policy suggests that the Chinese government is using its “Great Firewall” as an instrument of online protectionism, by systematically excluding foreign providers in favor of domestic services. Thus, Google‘s search engine is being edged out by Baidu, Facebook by Ren Ren Wang and Kai Xin Wang, Youtube by Tudou and Youku, and so on.

Professor Tim Wu of Columbia University first made the case in a 2006 paper that there may be good grounds under WTO law to challenge certain aspects of internet filtering. The argument has since gained currency. In 2007, the California First Amendment Coalition (CFAC) drafted a briefing (pdf), alleging that China “is actively preventing U.S. internet companies from doing business in China while at the same time promoting Chinese internet companies engaged in the same or similar activities,” and setting out the legal basis for a claim. In February 2009, The European Parliament also adopted a resolution regretting “the increasingly abusive recourse to censorship in respect of online services and products which operates as a disguised trade barrier.”

What form would a trade challenge take? There may be a case under the General Agreement on Tariffs and Trade (GATT) (pdf), which covers trade in goods, with respect to digital content products (primarily in relation to audiovisual content), but the arguments most relevant to search engines and social networking services are those that arise under the General Agreement on Trade in Services (GATS) (pdf). While the GATT has been around since 1947 and provides relatively strong protections for free trade in goods, the GATS, which was signed in 1994, is widely perceived as a weaker instrument – and also one which is comparatively untested. One of the crucial structural differences between the GATT and the GATS is that the GATT applies to all categories of goods except those a Member (i.e. a signatory state) specifically excludes, whereas the GATS works on the basis of “positive lists”: Members assume obligations by making specific sectoral commitments (which may be limited and subject to conditions). Thus, for example, a Member might accept GATS obligations in relation to the cross-border supply of data processing services, but make no similar commitments in relation to financial services.

The applicability of GATS to online services such as Google’s search engine or Facebook’s social networking site is not a straightforward matter, as China’s commitments were formulated on the basis of a classification of services which was drafted at a time when the internet was still in its infancy. As Wu shows in his paper, there is a good case to be made that those categories could be interpreted as covering a range of online services. He also notes that paradoxically, despite having some of the most comprehensive internet regulations in the world, China has undertaken very significant commitments in the relevant sectors.

On the assumption that relevant online services, such as search engines and social networking sites, are covered by China’s sectoral commitments, what kind of arguments could be mounted under the GATS?

• Article III imposes on Members obligations of transparency, including a requirement to publish promptly all relevant measures of general application which may affect the operation of the GATS. The administration and technical details of the Chinese internet filtering system are notoriously opaque, and Article III could perhaps be invoked to compel the Chinese authorities to be more open about how the system works, and in particular how decisions to block particular sites are made.

• Article VI requires Members to ensure that, in relation to services for which specific commitments have been made, all measures of general application are administered in a reasonable, objective and impartial manner. There may be reason to doubt that filtering policies are administered on the basis of objective and impartial criteria, and it seems that there is little “due process” in decisions to block particular websites, which Article VI may be interpreted to require.

• Article XVI was invoked, with partial success, by Antigua against the United States in the U.S. – Gambling WTO case, which concerned US laws prohibiting the provision of online gambling services. Article XVI obliges a Member to provide market access to foreign providers in those sectors for which the Member has made sectoral commitments. One of the difficulties in invoking this provision is that the measures which it prohibits are quantitative in nature: Members cannot impose limitations on the number of service providers, on the total value of services, on the total number of operations, etc. In U.S. – Gambling, the WTO Panel, which was subsequently upheld by the WTO Appellate Body on this point, found that the U.S. ban on gambling services amounted to a “zero-quota,” and was effectively a quantitative measure in violation of Art. XVI. In the case of Chinese internet filtering, this argument may prove harder to advance, as filtering, though disruptive, would not appear to impose a total ban on any particular category of online services. Even where specific services are blocked, this affects particular service providers, and would not appear to amount to a quantative restriction.

• Article XVII sets out the national treatment obligation under the GATS. National treatment requires that Members accord services and service suppliers of other Members treatment no less favorable than it affords to domestic like services and service suppliers. It is clear that domestic suppliers of online services in China are also subject to filtering and onerous content monitoring obligations. Yet, for the purposes of the GATS, what matters is the de facto effect of these measures. If foreign websites are affected differently, for example, by being slowed down by filtering at the link between the Chinese internet and the outside world (as suggested by the CFAC’s Peter Scheer here), or being blocked even though similar domestic services are not (as appears to be the case with Facebook), then an argument could be made that China has modified “the conditions of competition” in favor of domestic services suppliers, contrary to Art. XVII.

One of the thorniest issues in a challenge to the Chinese internet filtering would be the applicability of the General Exceptions provided in Article XIV. Unless the measure at issue constitutes a means of unjustifiable discrimination, the GATS cannot be invoked to prevent the adoption of measures which are “necessary to protect public morals or to maintain public order” (among other justifications). Supposing that an argument could be made on the basis of one or more of the articles mentioned above, the Chinese government would undoubtedly seek to rely on Article XIV. This would compel the WTO Panel or Appellate Body to pronounce on whether internet censorship can or cannot be justified on grounds of public morals or public order. By international standards, it would seem clear that some measure of censorship is justified: governments around the world filter certain types of content, such as child pornography or content which incites racial or religious violence. Yet, even where a Member shows justification under an Article XIV general exception, the claimant Member may nevertheless prevail by showing that, though the measure was justified, there exists a reasonably available alternative which is less trade-restrictive. There is no doubt that Chinese internet filtering is a good deal more restrictive than the international norm (though this may be changing). The competence of the WTO is firmly rooted in “trade,” and ruling on this issue would in all likelihood drag it into more controversial territory.

It seems that there is a reasonably good case to be made that the Great Firewall of China is effectively being used as a trade barrier, and susceptible to challenge under the WTO framework. Yet the political fall-out that bringing such a claim would generate should not be under-estimated. Trade tensions between the U.S. and China are already simmering, as evidenced by last year’s U.S. safeguard measures adopted on Chinese-made tires and the Chinese anti-dumping and anti-subsidy investigations into certain “Detroit Three” vehicles launched shortly after. Striking directly at the internet censorship system, which the Chinese government sees as vital to national political stability, would undoubtedly amount to a declaration of trade war. In fact striking at the political heart of another Member’s system would be a move unprecedented in the history of the GATT and the WTO. In the wake of the Google announcement, the English-language Chinese publication, the Global Times (often described as voicing the more stridently nationalistic end of the Chinese official line) has already denounced U.S. attempts at “imposing” a freer flow of information as a form of “information imperialism.” There is a deep historical distrust in China of “Unequal Treaties” imposed by Western powers, and it could be that a WTO claim would compromise China’s future commitment to the WTO system itself, as well as causing deep and lasting resentment. Hilary Clinton’s speech of last week on internet freedom suggests that the U.S. government is still committed to dialogue and a negotiated solution. Yet, merely knowing that WTO law provides grounds for a statable claim could prove a significant bargaining chip in negotiations, which might at least result in the toning down of some of the more discriminatory aspects of Chinese internet filtering policy.

• Twitter is a source of evidence for a murder charge, reports the New York Daily News.  But could those tweets be copyrighted?  Law.com’s Law Technology News weighs in.

• The Electronic Frontier Foundation provides a good, link-heavy analysis of the unanswered questions surrounding Google’s decision to stop censoring their Chinese services.

• For some reason, Psystar keeps fighting Apple, posts Gizmodo.

• Custom and Border Protection’s laptop searches may have gone too far, as revealed in a series of Freedom of Information Act requests for documents, reports Gizmodo.  EFF is looking for potential plaintiffs.

• The Wall Street Journal Law Blog analyzes how advances in medical science have impacted the rights of surrogate mothers.

• IBM gets the more U.S. patents than any other company for the 17th consecutive year, says MSN’s Moneycentral.  But Microsoft’s much smaller patent portfolio is worth more, reports The 271 Patent Blog.

• The Prior Art offers a fascinating look into the jury’s decision in i4i v Microsoft, complete with juror interviews.

• Chief U.S. District Judge Vaughn Walker in San Francisco decided to allow showing the trial challenging California’s Proposition 8 on YouTube, reports the San Francisco Chronicle.  The Wall Street Journal Law Blog questions whether that’s a good thing.

• Patent Librarian notes that Wikipedia citations in patent applications are up 59%, but Patently-O puts that increase in perspective.

• A report commissioned by the French government recommends taxing Google on their online advertising revenues in France to help fund legal outlets to buy media hurt by online piracy, reports the Mercury News.  President Sarkozy supports the measure, says PC World.

• The Wall Street Journal reports that Philip K. Dick’s estate claims Google infringed on its intellectual property by using the name “Nexus One” for the new Google-branded phone.  It brings to mind this recent post by Seth Godin.

• The Electronic Frontier Foundation responds to Bono’s recent New York Times Op-Ed, in which the musician / global icon lamented media piracy and suggested digital tracking be used to help criminal enforcement.

• Law.com provides an insightful guide to mining web 2.0 as a source of evidence.

• The Colorado Department of Transportation created an iPhone app to tell users if they’re too drunk to drive, the latest in a series of state efforts “to reach out to the Twitter-iPhone-Facebook generation,” according to the Wall Street Journal.

• The Ninth Circuit Court of Appeals affirmed [decision, pdf] a district court ruling that tasers should only be used in limited circumstances, as they pose a greater threat to their targets than other non-lethal police weapons.  The San Jose Mercury News reports on the suit that originated from a city police officer using a stun gun on a San Jose State student.

• Broadcom agreed to settle the securities fraud class action against it, says the Wall Street Journal Law Blog.

• The L.A. Times reports that the California Science Center has been sued for canceling a showing of film attacking Darwinian evolution and promoting intelligent design.

• Blizzard helps police make a drug arrest of a suspect tracked by his World of Warcraft account, posts kokomo perspective.

• Patent Docs reviews Senator Patrick Leahy’s proposals for patent reform.

• Third Circuit gives “Spam filter ate my filing notice” excuse a second chance, from the Technology & Marketing Blog.

• EFF sues to find out how the government spies on us using social networks; Indiana University students makes a Freedom of Information request to find out much the big telcos charge the government to spy on their networks, says Wired.

• The New York Times opines in favor of the Empire State’s decision to collect sales tax on online purchases from out-of-state retailers delivered in New York.

• Lazy IP enforcement leads to prosecution of the wrong guy, who makes a big deal out of it, says Ars Technica.

• FTC isn’t done with Intel yet, now looking into anticompetitive behavior with regard to Nvidia, reports BusinessWeek.

• Google to end free access to subscription news, blogs Gizmodo.

• And for an international perspective: BioTechBlog reports on IP and the biotech industry in India.

“Most entertaining video”

The case relates to the uploading to Google Video of a mobile-phone video showing an autistic high school student being bullied by his classmates. The video was allegedly uploaded to  the Italian-language Google Video on September 8, 2006, and not removed until November 7. According to the prosecutors, the video appeared in the site’s “most entertaining videos” section, ranked as the twenty-ninth most viewed. The video was only taken down after Down-syndrome advocacy group Vivi Down appealed to the Italian authorities, who in turn demanded that Google take down the video (it would appear that though the victim was in fact autistic and did not have Down Syndrome, Vivi Down’s involvement was prompted by derogatory references to Down Syndrome in the offending video). According to Google, it did everything that was required of it under the applicable laws, and removed the video within hours of being notified. The four Turin youths involved in the bullying were subsequently tracked down (with the help of Google), and sentenced to one year community service with a center for children with Down syndrome.

Google: ISP, content provider, or something else?

The issue of knowledge appears to be precisely what the Milanese prosecutors are focusing on: they argue that Google must have known of the existence of the video well before November 7. According to their submissions, in light of comments posted to Google Video voicing outrage at the video, “[i]t is reasonable to imagine that comments like this were followed by requests by these same people that the video be removed” (quoted in the New York Times article). If it were indeed the case that Google had actual knowledge of the video (which they vigorously deny),  and delayed in taking it down, then a finding of liability would not be particularly inconsistent with web hosting liability laws on either side of the Atlantic.

Calls for filtering?