François Nonnenmacher (EN) | FR

Running two weblogs in parallel is a bit challenging, and the French side of the force is taking all my time as I'm trying to cover a hot political debate here, and launching the first French Google Bomb(*).

Our government is trying to pass a law -- dubbed "confidence in the digital economy" (loi sur la confiance dans l'économie numérique aka LCEN, aka LEN) -- that, with respect to the Internet, will move France 10 years... backwards and have it compared in rather bad ways to Barman, China and Iran! I can't translate all the articles I've written already in the past few days, but here is a backgrounder.

This political project is a mix-bag meant to accommodate many things at once (and that, alone is a problem):

1. clean up a bunch of laws passed since 1986 pertaining to communications
2. (re)define the responsibilities of hosting providers and ISPs
3. transcribe in French law two directives from the European Parliament and the Council: Directive 2000/31/EC on electronic commerce and Directive 2002/58/EC on privacy and electronic communications.
4. modify existing laws regarding cryptology

The first point is related to the regulation of the telecommunications sector and the relations between our former state telecom body (France Telecom) and the public municipalities, allowing them to become operators where the incumbent fails to provide service. This part is not contentious (except where it mandates the phone companies to bill by the second, not using their customary "indivisible first minute" to sell you 30 mn cards that turned out to work for only 20 mn). The third point is an obligation, France should have transcribed the first directive two years ago and the second one last October. The fourth point is a rather pragmatic recognition of the current state of affairs in terms of cryptology and a welcome relaxing of the existing rules (there is one contentious result, but it's fairly obscure and not à propos here). The second point is the gordian node from where the scandal came.

The project started to draw a line between the telecommunications sector, including TV and radio, and the "online communications" world, i.e. the internet. The government initially wanted to include the internet as part of the existing legal corpus regulating TV and radio -- incidentally, that's what our local RIAA wanted too, as this corpus is very protective of their interests. When the project hit the parliament, our MPs started to break it apart and decided to create a whole new legal corpus dedicated to online communication. They were not happy to let the public body that regulates our TV and radio channels regulate the French internet (it was asking for it, but that reasoning couldn't stand when one compares a mere hundred channels with tens of millions of web sites). Then our senators played with it, then our MPs played with it again and now we have a brand new project that sets telecommunications operators apart from TV and radio operators apart from internet operators. Cut down this way it seems rather innocuous, but as of today, it's hard to find a French internet actor -- operators, ISPs, editors, bloggers and surfers -- who isn't raving mad because of it.

I need to explain the context about the freedom of communication in France. Communication is free, provided it does not endorse a precise list of things which are in particular all the legally forbidden discriminations (because of one's race, political opinion, religion), nazism apology and revisionism. France does not have anything like the U.S. First amendment and anybody can be held criminally liable for illegal speech (e.g. calling for murder, racism, etc.). That has been the case for as long as I can remember and I know of no one sensical who wants anything like the U.S. First amendment here, so far we are not a lesser democracy because of this difference (but that's a subject for another debate).

Because our criminal code does finger a few types of content, there was already some heat coming from ISPs and operators hosting web sites. Presently, the operators are not liable for content they merely transport or host on behalf of their clients. However, operators collaborate with justice officers on cases judged in court and the law forbids them to pass along the identity of their clients without a court order. So far, so good, it worked until now without too many cases cluttering our legal system.

This project redefines the responsibilities of the internet operators, making hosting providers liable for any illegal content they host if they do not take it down or prevent access to it as soon as they are aware or made aware of its illegal character (and in addition to the examples above, anything that goes against someone's property would be illegal according to this project, so it's not just criminal content anymore but copyright infringement, etc.). The judge is out, anybody can claim that some content is illegal and hold a provider liable for it. What will happen is that since private companies are not competent in that matter, they will systematically abide and promptly take the content down, leaving their client and the plaintiff sort that out in court, if necessary. Worse, the project wants to force the hosting providers to preventively scan all content for illegal materials and take them down before anyone complains. Not only are they turned into content judges, but they are supposed to do a police job too! Even worse, all ISPs on a simple court order, are supposed to filter the whole internet and prevent French citizens access to any identified internet resource that is deemed illegal, no matter where it is hosted (a measure that only the three aforementioned countries continue to do). Take the Yahoo affair from a few years back (nazi memorabilia on sale), a judge would be able to ask all ISPs operating in France to shut the access to certain pages of Yahoo for the whole country.

That none of this pleases anyone but the parliament, that none of these measures makes sense, is applicable or simply efficient (they either won't work or can be very easily bypassed by just being hosted in a foreign country) has not influenced the authors of the project law nor our representatives. Needless to say, the French internet world is upside down, and will be until our government or senators stop smoking crack (apparently the MPs are hopeless). The project will go for the second time to the senate on Feb. 12 for its second and final review.

(*) The MP whose job is to defend the project in the parliament has claimed during a chat with surfers that monitoring content was very easy because Google does a very good job at finding pertinent content (then providers can easily do it too, QED). So I launched a google bomb on député liberticide (freedom-killer MP) as an acid-test to this claim. It is reported to be the first French Google bomb, and has narrowed its target a few days ago.