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More on the Hague Convention
RadioheadKid writes: "An article at Cnet news discusses the implications of the Hague Convention on Jurisdiction and Foreign Judgments. According to Richard Stallman of the Free Software Foundation, "People don't realize what a disaster this could be." It appears that the treaty may not make it to ratification, but "we can't assume it will die of its own accord," Stallman said. "We have to stop it." One of the examples of the implications of this treaty is US based web sites having to comply with the narrow laws of countries like China or Morocco." Quite an informative article about the current state of the treaty. CPT has a set of pages with lots of background information on the treaty.
The Internet spans the globe. The site that waves the flag of your most hated enemy may be being hosted by your next door neighbor. No Law will prevent people from publishing content that you deem to be inappropriate.
Unfortunately, because of the flexibiltiy of the underlying protocols of the Internet, anyone with a TCP/IP pipe to the internet can have access to everything on the interent. No filter will block access. No amount of legalities and red tape will make objectionable content go away. Good or bad, the Internet is all or nothing.
Remember, any TCP/IP pipe will do. Porn can be sent by ping packets. Hate mail can be piggybacked onto a music file, or imbedded in a text document. Propoganda can be passed through port scans. Remember, good or bad, the Internet is all or nothing. You can try to cut off all forms of communication. But even then, what's to stop someone from bouncing a signal off of a satellite, or using spread spectrum radio, or carrier pigeons, to get their connection.
Your only hope is to train your people to accept the good and reject the bad on their own.
...US because the US (with their obviously perfect legal system) will have to follow other countries rules.
Our legal system is far from perfect. Any sane person in the US will tell you that.
But, that has absolutely nothing to do with this.
Under the US Constitution I, as a US citizen, have certain inalienable rights pertaining to free speech (among other things). I should not be held to the laws of another country if they don't like what I've said on my web page. A treaty that (may be) signed that I have had no say in can not over rule the laws I live by.
It's interesting (and sad, really) how you took this discussion and tried to turn it into a diatribe as to how the US is trying to force their 'perfect' laws on everyone in the EU.
And that is one of the major problems with the world today.
The law is too complex for anyone to completely understand it, let alone a layman, whose interest in the law extends only so far as not wanting to break it and be arrested.
Any law too complex for your citizens to understand is a bad law. Any set of laws too complex to be understood is bad. Requiring people to follow laws that they can't know is bad.
Why are we in this sitation?
Most politicians have law degress and are lawyers. (Anyone got numbers on the US senate congress/senate?) We let politicians pass laws, and lawyers benefit from more, complex, laws. Anyone see the conflict of interest here?
There are many partial solutions to this, but I'm inclined to agree with Shakespeare for the most part...
Ummmmm...
You missed the point. That's saying the constitution of any state notwithstanding, not "this Constitution".
In other words, the constitution of the great State of Del. doesn't matter a hill of beans next to any federal treaty, law, or the constitution.
Similar concerns have been raised in recent controversies involving the death penalty. There are countries that will refuse to extradite criminals to the US if they believe those criminals are likely to be subject to the death penalty. This group includes some of the US's closest allies, and countries with whom the US has specific agreements or even treaties. Those countries don't care. They are willing to stand up for their view of a basic human right not to be executed by the state, superseding even alliances and treates.
Why is this relevant? Because it's all about rights, and about governments' responsibility to protect the rights of their citizens (and, occasionally, others). Would any US court, legislature, or executive agree to enforce other nations' laws that it believes violate basic rights? I doubt it. They know that the people (i.e. the voters) really like their rights, and will deeply resent having those rights trampled on. For example, American anti-gambling laws might be held to apply to a British site because, while there's no law against gambling in Britain, there's no constitutional right to gamble either. However, if the Chinese or Singaporeans expect the US to enforce their laws against criticism of the government they'll be disappointed, because we *do* have a constitutional right to free speech.
Looked at in one way, the laws a country might enforce under Hague would practically consist of the union of signatories' laws, minus those that the country in question considers to violate citizens' rights. Intellectual property laws, however you feel about them, are likely to remain in that set; I don't know of any country that considers the use of someone else's ideas or expressions to be a basic right. Slander and such are trickier. I'm still trying to sort through the issues of procedure, standing, limitations of rights under local law, etc. so I don't know how that one might play out.
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This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Guess what, if the Hague Convention is ratified, Freedon of Speech will no longer have Constitutional force.
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Let's see, the Chinese gov't has been around for 52 years (since 1949), the US gov't for 212 years (since 1789). Seems to me the US gov't is the more long-lasting of the two.
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If you are going to have common laws, they had better respect common freedoms.
I would be (somewhat) happier about the Hague Convention if it incorporated the free speech clauses from the European Declaration on Human Rights, as Jamie Love etc were lobbying for (and even that would be a lot weaker than the 1st Amendment in the US). But it was rejected out of hand.
Reminder: the convention is about allowing a judgment in Country A against a national of country B be enforced against their assets in Country C.
If Country A has dodgy laws or a dodgy judiciary, you had better not have assets in any Country C which does not explicitly reject those laws.
There's a big difference between Chinese *culture* and Chinese *government*. The Chinese government, as it is now, has only existed since 1949. Chinese culture, on the other hand, is the oldest culture in existance and has existed, in one form or another, for 2,000 years.
Also, just because a government has existed for a long period of time doesn't make it a great form of government. That's a fallacy. The duration of existance does not measure the amount of good or evil an entity is.
Trolls make great pets. Adopt one today!
It's a funny thing, reading over these comments, seeing all the outrage that U.S. sites might be forced to be censored to comply with corrupt or narrow-minded laws from Morocco or China.
Reading about this Convention from somewhere outside the States, I couldn't care less about the theoretically-possible Chinese conspiracy to deprive the world of truth and goodness. It will never happen. The villain ain't gonna be China.
Let's think... what country's legislators and judiciary have both the clout and the audacity to effectively pursue extraterritorial legislation and censorship? (Hint... ask Jon Johanassen.)
The Convention scares me alright, but not because of China.
If we're going to all wear Star Trek clothing, let's use the uniforms from the Original Series, where women wore really short skirts.
Maybe in the UK, but not here. We Americans are rather proud of the freedoms we've fought for. No our legal system is not perfect. But if you want to stir up American sentiment - tell them their right to free speech is going to be subject to some foreign judicial body. I'll pickup an M16 myself and overthrow any legal body that sells my First Amendment rights out from under me.
The whole EU concept has some good ideas and some bad ones. But I personally feel it'll be a massive failure beyond just a trade association. Europe is a bit too diverse to fit under one political umbrella. Trade wise its fairly easy - even with teh Euro. But beyond that, there will be too much infighting in a political sense to align laws across EU nations in any meaningful manner.
I'm proud of my country and accept it for what it is, good things and bad. But I sure as hell am not gonna give up my freedoms to some greater world body in teh name of free trade, globalization, whatever. Our ancestors fought like hell for the freedoms we now enjoy and no world court is gonna change that.
I'm all for Free Trade, etc. But when it comes to fundamental rights, things get a bit more dicey. SO to me, simply saying that a treaty like this will infringe on my right to say China sucks and so does the EU is good enough for me to hate it. You may say that's xenophobic, but its not. Its nationalistic and unfortunately we've lost some of that in the US lately.
I never have understood why you can't be nationalistic and proud of your country without being an isolationist. It happens everyday - Countries agree to do things that will improve their country (free trade, whatever) while sayin gthat you'll just have to live with teh rest and if not, too bad.
Of course what really drives me nuts is my governments tendancy to try and prove to teh world we're right about everything which is stupid. WE're not. I personally think China can do whatever it wants to but don't expect us to lay down and let them run over us if there aren't concessions made in areas we care about.
The EU was formed to counter the US economically. That's it. The rest is jsut window dressing. But anyoen who thinks the US is going to give in and accept outside judgement on what it does within its borders is smoking dope.
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What are the Chinese going to do when they find out that every access to an American website from a Chinese IP address receives a copy of goatse.cx?
--Blair
This issue isn't anything new, especially for the United States. From the very earliest days of interstate commerce, this has been a sticky issue for any business. For any state they have a legal business presence in ("nexus"), they must meet the legal requirements of that state, creating difficulties as you adjust your business to meet the requirements of multiple (sometimes overlapping and contradicting) jurisdictions. At least at that level, however, problems aren't usually too bad, mostly because states have (in general) similar laws, and to some extent people have the protection of the full-faith-and-credit clause of the constitution.
Expanding this past national borders, however, proves tricky. For example, there has been much haggling in the EU regarding various commercial codes, export/import controls, etc. (I don't have a reference handy, but as an example, there have been some disputes over what legally can be sold as wine and chocolate).
Introduce this on a truly international scale, and you've got a mess. As the cptech web site succintly calls it: "The consequences of global enforcement of non-harmonized laws".
Anyways, I wouldn't worry about it too much, since the US has a rather cavalier attitude concerning treaties it has signed... as one good example, the US signed the Vienna Convention which ensures access of foreign nationals access to their consul if they get arrested, to ensure that their legal rights are retained. While the US loudly protests when our citizens are denied this right, our US states regularly violate this (see the discussions regarding virtually every execution of a foreign national in the last few years), and many state governments have stated that since it is a US treaty and not a treaty with the state, it's not enforceable.
The author of the article forgets one key component of enforcing a judgment: jurisdiction. He makes it sound as if all one has to do is go to France--for example--sue someone there, and bring the judgment to any Hague Treaty signatory to get the judgment enforced. However, the Hague Treaty is about jurisdiction, too. It has detailed rules governing how courts can establish jurisdiction over foreign parties.
There are two things which prevent judgments from being enforceable in foreign countries. The first is the simple idea of sovereignty: France cannot send its police over into the United States to seize the bank account of a person who has a French judgment against him. France has no power to enforce its laws outside its own borders (and the Hague Treaty will not change this). The second thing is related to sovereignty: a French court does not have jurisdiction to resolve questions of my rights unless I am within France's borders or have established some kind of contact with France that makes France's jurisdiction over me reasonable. In other words, if I am not within France's borders, France does not have the sovereign power to decide my rights, because France's sovereignty stops at the border. However, theoretically, if I have established some kind of sufficient contact with France (opening a store there, or selling goods over the internet specifically to people in France), then it sould be reasonable for France to decide my rights (even if they cannot force me to show up) and have that decision, or judgment, be enforceable.
Things do not work this way now. Right now most countries generally have laws governing jursidiction over foreign parties. For example, French law says that if you are a French citizen, you can obtain a judgment over a foreign party for a dispute that arose anywhere in the world just by bringing the case in French court. Then god help that foreign party when they show up in France and the French citizen gets to enforce that judgment. Further, in the United States we give respect to foreign judgments based on the principle of comity. Comity is basically reciprocal respect: the U.S. will enforce French judgments if France will enforce U.S. judgments. (Note that in practice, right now, the U.S. has more respect for French judgments than France has for U.S. judgments.) However, this principle of comity is limited by our notions of due process of law. The U.S. will not enforce judgments that fail to meet a minimum standard of due process protections. For example, I doubt if a U.S. court would enforce a judgment from a secret, Iranian military court (where people are tried without even being allowed to be present to mount a defense or confront their accusers).
The Hague Treaty will change all this for its signatories. First, of all, it provides general rules for jurisdiction. Thus, France would not be able to keep its law that any French citizen can sue any foreign party in a French court and get an enforceable judgment. Each country would have to provide reasonable rules for jurisdiction. Second, the principle of comity (as between signatories) would drop out of the picture. In the U.S., we would already have adequate assurance that a foreign judgment meets our standards of due process. France would be forced to give the same respect U.S. judgments as the U.S. gives to French judgments.
The upshot is that the article ignores the concept of jurisdiction. Just because a French business obtains a judgment against me in France, even under the Hague Treaty, that judgment is not automatically enforced unless it is valid, i.e., the French court had jurisdiction over me. If the French court did not follow the Hague Treaty rules on jurisdiction, which should be fair to all countries, then that judgment will not be valid (think of it as an ultra vires exercise of sovereignty) and it will not be enforceable in other Hague signatory nations.
For those of you with access to Westlaw or Lexis, you can read more about the concept of jurisdiction and the Hague Treaty in a Cornell Law Review article, Jurisdictional Salvation and the Hague Treaty, by Professor Kevin Clermont, published in issue 1 of Volume 85 (November 1999). This is the legal cite: 85 Cornell L. Rev. 89. (You can also read my article for some background on the law of jurisdiction in the U.S., 85 Cornell L. Rev. 1742 (Sept. 2000).)The author of the article forgets one key component of enforcing a judgment: jurisdiction. He makes it sound as if all one has to do is go to France--for example--sue someone there, and bring the judgment to any Hague Treaty signatory to get the judgment enforced. However, the Hague Treaty is about jurisdiction, too. It has detailed rules governing how courts can establish jurisdiction over foreign parties.
There are two things which prevent judgments from being enforceable in foreign countries. The first is the simple idea of sovereignty: France cannot send its police over into the United States to seize the bank account of a person who has a French judgment against him. France has no power to enforce its laws outside its own borders (and the Hague Treaty will not change this). The second thing is related to sovereignty: a French court does not have jurisdiction to resolve questions of my rights unless I am within France's borders or have established some kind of contact with France that makes France's jurisdiction over me reasonable. In other words, if I am not within France's borders, France does not have the sovereign power to decide my rights, because France's sovereignty stops at the border. However, theoretically, if I have established some kind of sufficient contact with France (opening a store there, or selling goods over the internet specifically to people in France), then it sould be reasonable for France to decide my rights (even if they cannot force me to show up) and have that decision, or judgment, be enforceable.
Things do not work this way now. Right now most countries generally have laws governing jursidiction over foreign parties. For example, French law says that if you are a French citizen, you can obtain a judgment over a foreign party for a dispute that arose anywhere in the world just by bringing the case in French court. Then god help that foreign party when they show up in France and the French citizen gets to enforce that judgment. Further, in the United States we give respect to foreign judgments based on the principle of comity. Comity is basically reciprocal respect: the U.S. will enforce French judgments if France will enforce U.S. judgments. (Note that in practice, right now, the U.S. has more respect for French judgments than France has for U.S. judgments.) However, this principle of comity is limited by our notions of due process of law. The U.S. will not enforce judgments that fail to meet a minimum standard of due process protections. For example, I doubt if a U.S. court would enforce a judgment from a secret, Iranian military court (where people are tried without even being allowed to be present to mount a defense or confront their accusers).
The Hague Treaty will change all this for its signatories. First, of all, it provides general rules for jurisdiction. Thus, France would not be able to keep its law that any French citizen can sue any foreign party in a French court and get an enforceable judgment. Each country would have to provide reasonable rules for jurisdiction. Second, the principle of comity (as between signatories) would drop out of the picture. In the U.S., we would already have adequate assurance that a foreign judgment meets our standards of due process. France would be forced to give the same respect U.S. judgments as the U.S. gives to French judgments.
The upshot is that the article ignores the concept of jurisdiction. Just because a French business obtains a judgment against me in France, even under the Hague Treaty, that judgment is not automatically enforced unless it is valid, i.e., the French court had jurisdiction over me. If the French court did not follow the Hague Treaty rules on jurisdiction, which should be fair to all countries, then that judgment will not be valid (think of it as an ultra vires exercise of sovereignty) and it will not be enforceable in other Hague signatory nations.
For those of you with access to Westlaw or Lexis, you can read more about the concept of jurisdiction and the Hague Treaty in a Cornell Law Review article, Jurisdictional Salvation and the Hague Treaty, by Professor Kevin Clermont, published in issue 1 of Volume 85 (November 1999). This is the legal cite: 85 Cornell L. Rev. 89. (You can also read my article for some background on the law of jurisdiction in the U.S., 85 Cornell L. Rev. 1742 (Sept. 2000).)
In the UK, the internationalisation war is basically being fought about the country's place in the EU. Unfortunately, much of the debate is drowned in Xenophobic rhetoric, and I'm not convinced this sort of article (or at least parts of it) are going to do anyone any favours. Whilst of course different people hold different viewpoints, many people go on record as saying this is going to be terrible for the US because the US (with their obviously perfect legal system) will have to follow other countries rules. In the context of a debate about coming under international juristriction, such US-centric moans are absurd, just as the UK-centric ones about the EU are absurd. Nobody is suggesting that the convention is trying to lump the bad bits of other countries laws onto the whole world - the problem with the convention is that people disagree about which parts /are/ bad (most legislators think their own country's laws are the way to go). I'm as much terrified of what I see as insane and dangerous laws about freedom of speech, bearing arms, etc. being forced upon the UK (/EU) as I am of having to obey the DMCA.
So basically, xenophobically claiming that this convention is going to hurt *MY* country doesn't engage with the debate, and if these people, even RMS, want to make a serious defence against it, they're going to have to do so on the basis that legislative imperialism is bad, not simply on the basis that US law or UK law is perfect and we don't want other countries screwing it all up for us. Accept that different countries do things different ways and you might show that this is bad - it's only those that think there's a perfect universal law that would support such legislation.
It was my understanding that Yahoo et all did this to prevent being kicked out of countries like France, etc. But for the vast majority of websites in teh US that DON'T have an international presence, I can't imagine the Hauge sending troops in to turn down my website on US soil and any attempt to do so will surely bring in teh Supreme Court on constitutional free speech issues. What am I missing?
Heck get real - if you don't like whats on a US site, block it like China does but leave me the hell alone. The who pull the network cable out of my PC over my dead body thing ;)
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And for...
And against...
And For...
So in other words...Imagine that. The RIAA endorsing a forum that gives them complete control, regardless of what almost every other major business in the US wants. Hmmmm...
Random Musings
Despite all the objections we have, the main reason I see our legislators rejecting it is that it obligates US-based ISPs to be content police for every jursidiction on earth, which is clearly ridiculous. AOL, @Home, and Earthlink will scream bloody murder about this obligation, and they'll be fighting the good fight for once. If anything remotely like this is to be ratified, it should place the burden on China, Morocco, et al to reject content they find unacceptable, even if that means banning everything from outside thier borders... after all, I mean, if Morocco has a law against all depiction of nudity (for instance), I suppose I respect that law, but let THEM enforce it. That's not the job of my U.S.-based ISP, thank you very much.
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Or Europe based web sites having to comply with the narrow laws (concerning e.g. nudity, drugs, or cryptography) of hyporcrite US.
Pot, kettle, etc.
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OTTERS RULE.
Perhaps this is a good time for those of us who read /. to consider the reality of the US system of government. Senators, congresspersons, and even presidents cannot know absolutely everything about every issue. They simply haven't the time, energy, or desire. And we can't condemn our representatives for this.
Instead, we need to individually contact our representatives. They aren't all evil, and they actually do care about their constituents. But they have to make decisions based on the information that they receive. It is our responsibility as citizens to help our government make proper decisions.
It is irresponsible for us to simply complain when our government is on the brink of doing something terrible for our rights and needs. We must instead be an interactive force in government. The NRA and AARP are so successful as lobby groups because of their members. Perhaps it's time for geeks to think about membership in a similar lobbist group. Shoot, if the FSF gave out membership cards and bumper stickers for $50 a year, I'd do it.
Long, cute, or funny Sigs are just another form of over compensation, used by geeks, nerdz, etc.