Twitter’s Country-Specific Content Blocking Raises Questions about the Efficacy of Geolocation (Guest Blog Post)

By Guest Blogger Marketa Trimble

Twitter’s General Counsel announced last week that the company, for the first time, “withheld” content from users from a certain jurisdiction. As Twitter explains on its website, its “goal is to respect [its] users’ expression, while also taking into consideration applicable local laws.” This blog’s prior post about Twitter’s policy.

The first implementation of the policy announced earlier this year reinforces the need to answer two key questions: Will geolocation be sufficient for websites to comply with territorially-defined laws, and if so, what will the legal status of the evasion of geolocation be? The need for the answers is pressing, particularly if Twitter’s action is indeed a “precedent-setting move” – as Adam Holland of Harvard University’s Berkman Center for Internet and Society suggests in his commentary at Chilling Effects.

Twitter’s compliance on the internet with territorially-defined laws relies on geolocation tools, but whether geolocation will be accepted by jurisdictions as a reliable method of territorially limiting access to content has been disputed because the barrier that geolocation tools raise is not impermeable and its tools can be evaded. In Germany – the jurisdiction for which Twitter is “withholding” content – courts have accepted geolocation as a means of achieving legal compliance, as a case concerning online gambling illustrates. A German court in Nordrhein-Westfalen, when ordering website operators to use geolocation tools to limit access to certain online gambling content from the state of Nordrhein-Westfalen, did not question the proposition that existing geolocation tools were sufficient to safeguard territorial limitations on the internet. The court described geolocation as “a viable and technically feasible method of determining website visitors’ locations” (Oberverwaltungsgericht Nordrhein-Westfalen, 13 B 646/10, July 2, 2010, par. 34; see the German text of the decision), notwithstanding the fact that the tools at issue in the case employed only a user’s IP address to determine the user’s location, and also the fact that the user could evade the tools if the user wished to do so (Twitter apparently also uses a geolocation tool that employs a user’s IP address to identify the user’s location).

If jurisdictions do accept geolocation as an acceptable method to achieve compliance with their territorially-defined laws, two issues need to be addressed: the proper minimum standard for sufficient geolocation and the proper legal support for geolocation tools. Defining the minimum standard for geolocation presents the same problems as the determination of any other standard: the geolocation standard should not be so low as to make geolocation unreliable (e.g., asking users to select their location from a drop-down menu is unlikely to be sufficiently reliable for purposes of legal compliance), but the standard should also not be so high as to impose an unacceptable burden on business or lock in patented technologies without concomitant and workable licensing options. Whether geolocation based solely on IP addresses is sufficiently robust might be questioned, and companies offering enhanced solutions that go beyond IP addresses will certainly lobby for a higher standard. The area of online gambling might provide a useful insight into the process of geolocation standard setting, as U.S. state gambling authorities search for standards that they deem adequate for licensing online gambling operators and their geolocation suppliers.

The legal standards for geolocation tools must also address the possible evasion of geolocation. If technological solutions are subject to shortcomings – as geolocation tools certainly are – the law may provide support by penalizing those who circumvent the solutions and those who provide tools to circumvent the solutions. Current laws do not address evasion of geolocation directly, but some existing legal doctrines could apply to users who evade geolocation and those who provide evasion tools (see my recent article on legal implications of the evasion of geolocation). The discussions of the Stop Online Piracy Act, which was apparently the first bill to include a provision explicitly targeting evasion of geolocation (see §102(c)(4)(A)(ii) of H.R. 3261 (2011)), exposed the difficulty of penalizing providers of tools that enable evasion of geolocation, particularly if some of those same providers have been heralded for their role in supporting free speech worldwide.

Both the minimum standard and the legal support for geolocation might be most effectively addressed through international cooperation. I have recently proposed such cooperation in the area of online gambling (see my recent chapter), but the features of the proposed cooperation might be applicable generally. It is unlikely, however, that the online gambling proposal could garner support at present because of the strong public resistance generated by the Anti-Counterfeiting Trade Agreement negotiations, which made the public wary of any international cooperation affecting the internet. In the United States, the resistance to enforcement measures affecting the internet was exacerbated by reactions to the discussions of the Stop Online Piracy Act, which made the public aware of the difficulties associated with any national legislation limiting access to content on the internet.

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