As European leaders move to ban Internet hate speech and seek support from the United States, civil liberties groups charge that the proposal would violate free-speech rights.
The Council of Europe comprises 44 European countries, plus a handful of non-European nations. Canada, Japan, Mexico, South Africa, and the United States have observer status only, but their comments are sought.
The council recently voted to outlaw "acts of a racist and xenophobic nature conducted through computer systems." The measure was added to the Convention on Cybercrime, criminalizing hacking, intellectual property violations, and use of computers to commit fraud. The first set of rules was signed in November 2001.
The non-European members are being asked to endorse the hate-speech provision at a meeting in late January.
Broad Ban 'Terrifying'
The U.S. Department of Justice has indicated it will not support the broader restrictions because of concern that it is incompatible with First Amendment rights to free speech.
The agreement defines racist and xenophobic material as "written material, images or other representations of ideas or theories advocating, promoting or inciting hatred, discrimination or violence against individuals or groups, based on race, color, descent, or national or ethnic origin, or religion."
"It's a terrifying prospect," says James Gattuso, a research fellow for the Heritage Foundation, a conservative think tank. "It's inherently dangerous for governments to define what appropriate speech is. You can't define or limit speech without chilling speech."
The protocol is subject to interpretation, he notes. "If you have a cartoon criticizing French foreign policy, would the French government have recourse?" he asks. "I don't see anything that would exclude that."
The Electronic Privacy Information Center suspects that the protocol is aimed at right-wing racist speech, says Sarah Andrews, EPIC's research director. She thinks it targets white supremacist or antiabortion groups. A separate proposal on revisionism would prohibit speech about Holocaust denials, she notes.
But either ban is drastically contrary to the U.S. practice of protecting even hate speech. For example, an antiabortion group ran a Web site called the Nuremberg Files, which listed doctors who performed abortions. As antiabortion activists killed these doctors, they were crossed out on the Web site. Critics said the Web site incited violence, and a lower court agreed; but upon appeal the Web site was declared to be protected by the First Amendment. Under the Council of Europe protocol, the Web site would be illegal, Andrews says.
"At the very extreme, historians or journalists writing about these people or [about] Holocaust denials would be prohibited," says Andrews.
The Council of Europe's original Convention on Cybercrime in 2001 also contained a hate-speech measure, but it was dropped at the last minute to gain support from the United States, which signed the treaty along with 29 other countries. However, for the treaty to become reality, the members must enact laws in their own countries.
Nations have been slow to ratify the treaty, says Barry Steinhardt, director of technology and liberty programs for the American Civil Liberties Union and cofounder of the Global Internet Liberty Campaign. Only two Council of Europe members--Albania and Croatia--have executed the treaty's provisions from one year ago.
Ratification in the U.S. requires action by the Senate, which has not happened.
While few countries have taken action, civil liberties groups say the protocol has a chilling effect and are tracking the Council of Europe's actions.
"The U.S. has always maintained that they won't sign on to this protocol, and it would be very shocking if they did so in the end," EPIC's Andrews says.
If European countries find unacceptable material on an American-based Web site, they cannot expect American courts to block access to the material because it would be protected here by the First Amendment, says Paula Bruening, staff counsel for the Center for Democracy & Technology.
"As disturbing as this kind of speech is, it is protected by the First Amendment," Bruening says. "Our vision of the Internet is a free exchange of ideas, but Europe takes a different approach. What we're seeing here is a cultural clash."
The treaty says Internet service providers would not be held responsible for simply hosting a Web site or chat room containing hate speech.
However, if the Council of Europe member countries adopt laws that make it a crime to distribute such material to the public through e-mail or Web sites, this may negatively impact privacy and Internet use by Americans, say some civil liberties groups.
The proposals would require governments to take invasive measures to prosecute individuals, says the ACLU's Steinhardt. He says the United States would have to cooperate in such a case.
American Internet service providers could potentially be forced to shut down their interactive components because people may engage in speech that is offensive in Europe, says Steinhardt.
Some members of the European parliament called for an "unlawful hosting" provision that would have increased the liability of U.S. companies, says Sarah Deutsch, vice president and associate general counsel for Verizon Communications Inc.
The Council of Europe rejected that proposal as problematic, but ISPs are still concerned because Internet jurisdiction is largely unsettled, Deutsch says.
When French organizations brought Yahoo Inc. to court for allowing Nazi-oriented auction items on its Web site, a French court said Yahoo was liable, but did not enforce the judgment. A U.S. court said later that the ruling could not be imposed in the United States.
Some U.S.-based Web sites have chosen to voluntarily block access to some information in respect of other countries' laws, which also raises concerns among civil liberties organizations.
But a Yahoo executive could be arrested when traveling in France because that judgment still stands, says Deutsch. "Some countries hold you liable because citizens can access your Web site," says Deutsch. "Countries need to adopt a common set of principles."