February 23, 1999

ACCESS AND ANONYMITY SEVERELY PUNISHED BY FRENCH COURT

by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—Like the biblical Jacob, modern governments are wrestling with anonymity. Jacob’s adversary (described in the scripture merely as a “man”) gives him both a wound and a blessing. When Jacob begs, “Tell me your name!” the man retorts, “Why do you ask my name?” and departs. Four thousand years later, we still find in anonymity elements both harmful and liberating.

On February 10, an anonymous Web publication brought down a popular benefactor in France. Valentin Lacambre, who made a living registering and managing domain names, had set up a server called Altern that offered free Web sites. Over 47,000 people took advantage of his offer, submitting every imaginable sort of political, cultural, and other content.

Naturally, a few illegal fish swam into this bouillabaisse, but Lacambre tried to act responsibly in ridding his server of them. “The police come regularly to ask me for information,” he told a ZDNet reporter, “and I give it to them.”

Nobody really knows why this delicate balance failed to protect Altern and Lacambre last year when the famous model Estelle Hallyday sued him for violations of privacy. Nineteen photos of her in a state of undress—popular material that people have reported seeing elsewhere—were found on one of the Web sites on his server.

In France, as in the United States, courts have ruled fairly consistently that access providers should not be held responsible for content placed on their servers by other people. It was the supposed anonymity of the Web site that stripped Lacambre bare of this protection.

On June 9, 1998, according to Meryem Marzouki of civil-liberties group IRIS, a court ordered Lacambre to remove the Hallyday photos but stopped short of making any judgment about his liability. The court did set a dangerous precedent, though, by forcing him “to put in place means that would render impossible any diffusion of the photographic images.” In other words, as Marzouki says, he would have “to check each day, each hour, each minute, all his 40,000 hosted web sites, looking for Estelle Hallyday photographs.”

Lacambre appealed the decision on the basis that the guarantee was impossible to achieve. On February 10, a court found that he could be held responsible for the violation of privacy because the Web site was anonymous.

Certainly the Web site with photos was unlabeled. But as I’ve explained, it was far from anonymous in the sense that Lacambre could have revealed the pornographer’s identity at any time. Neither Hallyday nor the courts asked him to, though.

How does one attain anonymity? You can use an “anonymizer” service that strips away identifying information from electronic mail, but no posting you make to a mailing newsgroup in that manner has the permanence of a Web site. Most anonymizers keep information on your true origin anyway, so that replies can be directed back to you.

Some computers on the Internet have poor enough security for individuals to connect freely and send electronic mail without revealing their actual location. But because “spammers” (senders of unsolicited bulk email) search out and exploit these sites heavily, their administrators frequently are told of the problem and tighten their access.

Is a truly anonymous Web site possible in the same fashion as an electronic mail message? In theory, but not in practice.

To allow people to hide their locations, a system administrator would have to create a world-writable directory (meaning anybody can put data there) and allow anonymous connections (as many FTP sites do already). So long as the system administrator refused to log connections, no trace would remain of who uploaded files.

But the result would be that people would overwrite files they didn’t like, and that some who disapprove of anonymous services would immediately and repeatedly fill the server’s disk with garbage. No, anonymous sites are not practicable. It is not possible on the Web to wrench the socket of someone’s thigh and just walk away.

Lacambre’s case has been publicized by IRIS, APRIL (Association for the Promotion and Research of Free Information), and many other political and cultural supporters, winning him a great deal of political sympathy and even pledges of financial aid. An impressive 198 organizations—let alone individuals—have signed an online IRIS petition, and another 12,000 a simple petition saying “Altern.org should be able to continue managing free Internet sites.” For many of these activists, including IRIS and APRIL, the key issues are freedom of expression and the survival of a “non-commercial Internet.”

Anonymity on the Web, which has many social benefits, is first to go under this court ruling. No one has defended anyone’s right to display nude photographs of a famous person. But whistle-blowers and protesters against political repression, who can hand out leaflets anonymously on the street, should have the right to make use of the immensely more powerful online medium.

After anonymity, the next Internet institution threatened by the court decision is free Web service, or even a public Web service of any sort. How can a provider ensure that thousands of clients identify themselves clearly on every Web page? The degree of surveillance required by the court decision makes the framers of the Communications Decency Act look like Jean-Jacques Rousseau by comparison. And indeed, Lacambre has provisionally removed his 47,000 sites rather than subject himself to the requirement that each site be checked continually.

In the United States, where the fear of copyright infringement rivals the fear of pornography in driving debate over the liability of Internet providers, the Digital Millennium Copyright Act of 1998 has erected an acceptable compromise in rights and responsibilities. A tangle of rules protect universities, service providers, and other sites offering Internet services to clients from liability for those clients’ copyright infringement. In return, the service provider has to register with the Copyright Office so that a copyright holder complaining of infringement can easily make contact.

I do not necessarily offer the Copyright Act as a model for a French solution, but the ruling of February 10 shows that something needs to be done there to restore an open Internet. It is ironic that the ruling cites a “violation of privacy” in order to squelch one of the most valuable sources of privacy, the ability to express oneself anonymously on the Web.

On a mailing list in support of Lacambre, many protesters point to another irony: that a French court delivered a blow against the promulgation of Internet access during French preparations for a “Festival of the Internet” to take place from March 19 through 21. Punning on the French for “Festival of the Internet” (Fête de l’Internet), a site called Mini-Rézo lamented attacks on Lacambre and another Internet site in an article called “Defeat of the Internet.” The article traces the ruling to a mentality that “considers the liberty of expression dangerous…the widely circulated myth that this liberty is totally uncontrollable and left to criminal elements.”

The circumstances of the ruling have led many political observers to deduce that it was politically motivated. They point to the omission of the natural and basic step of asking Lacambre to remove the material or identify its owner, to the staggering restitution demanded—400,000 Francs, typical for a case against a tabloid newspaper but not a small entrepreneur earning 10,000 Francs a year—and to distortions of fact in the ruling. For intance, the court insisted that Lacambre profited from his Web sites, even though he was offering them for free and never required advertising or any other revenue-generating compensation.

Activist Christine Treguier lays out the political battle as follows: “Now that France has released cryptography and big business can start up, they (the authorities, the multinationals, the private businesses) want to clean the yard. Move away, you dirty, chaotic internauts.”

There are plenty of precedents for digging up publishing infractions as a weapon of political censorship. In France, we can go back to the 1857 in the Second Empire, and the trial against the liberal journal La Revue de Paris.

A government prosecutor snared the journal for serializing a novel that was “an outrage to the public and religious morals.” But most observers knew that the journal’s real crime was to publish leftist opponents of the regime. The Revue had already received two warnings for this, and was to be shut down permanently the following year on the charge that it encouraged sedition.

The morality trial proved to be simple buffoonery, ending with all defendents acquitted. It succeeded only in drawing the public’s attention to the daring views in the novel being condemned—Madame Bovary—and the talents of author Gustave Flaubert, who conducted a tiresomly conventional lifestyle.

While I doubt that any of the 47,000 site on Altern contained work of the quality of Madame Bovary, I would like the chance to explore what these earnest souls have to offer and I wish that Lacambre had been vindicated like Flaubert. Limits are acceptable on the absolute concealment of identity, but the infractions of a few should not be grounds for denying the rights of all to free and even anonymous expression.


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