Internet Censorship in France: should we criminalize viewers?

“From now on, any person who habitually consults websites that advocate terrorism or that call for hatred and violence will be criminally punished” — Nicolas Sarkozy, March 22, 2012.

In the wake of a terrible tragedy in Toulouse in which Mohamed Merah (killed by police after a long standoff) reportedly murdered three Jewish children and four adults in southwest France, French President Nicolas Sarkozy has announced his intention to create criminal penalties for habitually visiting websites that advocate terrorism or hate crimes. While the emotions behind Sarkozy’s statement are readily understood, the message has been met with much criticism.

Using HADOPI procedures, France already has mechanisms for monitoring illegal Internet use. These laws are invasive enough that they are part of the reason why France has been on Reporters without Borders’ surveillance list for “enemies of the Internet” since 2011. If Sarkozy pursues increased Internet regulation to combat terrorism, one major risk would be over-blocking, either through the potential for abuse or by emboldening authoritarian governments in their own pursuit of internet censorship.

It seems that Sarkozy has reacted emotionally to the terrible tragedy that occurred, and that his plan has not been well thought out. First of all, the law would be easily evaded. Users could access questionable sites from a variety of locations to avoid being flagged as regular visitors. By moving from cybercafés to free hotspots or using anonymizing tools like proxy servers and VPNs, it will be hard to determine who frequents the targeted sites.

Second, it seems unlikely that further criminalizing access to hate speech or terrorist content will prevent tragedies like the one that prompted the call for further restrictions. In fact, we do not even know if Mohamed Merah frequented terrorism or hate-focused websites. The law itself would encourage those involved with terrorist groups to take further steps to disguise their browsing habits to avoid drawing attention to themselves. Furthermore, the law will be of no benefit in identifying terrorist groups or individuals who do not get information from or communicate through the Internet. Highly organized criminals who operate with a high level of sophistication will easily evade these restrictions, making the restrictions largely unhelpful for law enforcement agencies.

Third, criminalizing access to Internet content is a short sighted and ineffective solution that is more likely to restrict access to legal content than actually assist in preventing terrorism. There are a host of reasons to visit controversial sites, such as journalistic or academic research or out of mere political curiosity. To say that visiting certain websites in and of itself constitutes a crime is like saying those who regularly visit gun shops should be charged with attempted murder. Moreover, the proposal would require devoting countless man hours and resources to investigating people who are unlikely to be affiliated with or in support of terrorist groups. This could divert resources away from more established and effective enforcement methods.

Finally, Sarkozy’s proposal raises a lot of questions: who will define a “call for hatred,” compile the list of sites to be watched, and carry out this surveillance? French law tends to use an expansive definition of hate speech. In 2000, Yahoo was found guilty of violating the hate speech law by auctioning Nazi memorabilia. Actress Brigitte Bardot, an animal rights activist, was fined for racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep (Eid-al-Kabir). John Galliano was fined for an anti-Semitic rant in Paris. Although such comments are shameful and reprehensible, many in France feel they fall short of being criminal. So where would Sarkozy draw the line?

Extremist violence wasn’t born on the Internet, and it is hard to make a clear connection between viewing questionable websites and committing criminal acts. A tempering of the raw emotions that arise after tragedies like the shootings in Toulouse is necessary to implement intelligent and pragmatic law enforcement strategies. Intelligence gathering is a crucial piece of the puzzle, and one that could arguably be better served by a more judicious approach to monitoring Internet activity. If France ultimately decides to criminalize browsing and block access to alleged terrorist sites, what control mechanisms will be implemented to prevent the potential abuses that could result from having such a strong grip on internet access? While Sarkozy’s comments last month raised this issue, it is clear that there are many factors that need to be carefully considered before France implements it.

Jean-Loup Richet – Special Commentator to Herdict