Censorship, Human Rights, and Capitalism

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Tech companies from Silicon Valley to Singapore helped make the Internet happen. But the very technologies that facilitate and direct Net communications in the United States--routers, packet tracking technologies, filtering software, and the like--can be used to censor content and to restrict the rights of people living in other countries.

Congress wants to do something about the use of U.S. technology to oppress people. Its chosen method: new regulations on how companies, especially search engine and Web hosting firms, do businesses abroad.

The goals are laudable: I wholeheartedly approve of protecting freedom of speech and information, and of preserving human rights. I'm less sanguine, however, about the means proposed for achieving these goals, as described in the Global Online Freedom Act of 2006 (H.R. 4780), a bill currently pending in the House of Representatives.

Not only am I unsure whether the bill would work effectively, but I believe it raises some thorny issues: How far can our government go in mandating that private businesses serve as unofficial partners or affiliates of the State Department? To what extent can the government dictate how U.S.-based companies behave and do business in other countries?

The bill also muddies the waters further on an increasingly complex problem of the Internet age: Whose laws should dictate how a cyberbusiness functions--those of its home country, or those of the country in which it conducts business at any given time?

The Problem

Larger questions aside, the problem of Internet censorship is real, and it already has put people in jail. You may have read about several cases involving Google, MSN, Yahoo, and other companies that operate in China, for example. These firms have either cooperated with the Chinese government to help identify political dissidents who posted on blogs or other Web pages, pulled content deemed objectionable by the government, or agreed to restrict search results or to direct users to government-approved sites when they search for certain terms. (Google has since pulled back search records out of China in a move to protect users.) Other companies directly market their Internet tracking and filtering products to governments such as China's in order to help those countries' officials keep tabs on, and restrict, their citizens' surfing habits.

Representative Christopher Smith (R-New Jersey), one of the Global Online Freedom Act's chief sponsors, included a long list of other recent cases in the speech he gave before the House when he introduced the measure earlier this year. Not only does cooperation with repressive regimes hurt the citizens of those countries--an undertaking we shouldn't aid and abet anyway--but such cooperation hurts the United States' foreign policy goals and the spread of democracy, argue the bill's proponents.

Certainly, a lot of money is at stake. Representative Smith mentioned that Cisco alone, which he says has a 60 percent share of the Chinese market for networking gear, earns an estimated $500 million annually from sales in that nation.

Must Cisco or Google or Microsoft forgo that kind of revenue because of the way their products may be used or because a government may use the information they gather as part of doing business to oppress its citizens? Your moral mileage may vary. Even Smith's bill doesn't answer that question with a resounding no, but it does set up certain rules, which are quite detailed for search engines and Web hosting companies.

Congressional Solution?

To start, the bill would have the U.S. president draw up a list of countries that the United States deems repressive; U.S. firms doing business within those countries would be affected by the legislation.

The bill would create a new office within the State Department that would track suppression of Internet-related speech in different countries and would coordinate efforts among government agencies dealing with these abuses and other government bodies. This office would also be responsible for working with business and industry leaders to set up a voluntary code of conduct for companies working overseas.

For search engines and Web content hosting firms, the bill gets more specific. While it wouldn't prohibit such companies from doing business in oppressive countries, it would restrict how far they can go in accommodating the desires--and the laws--of those nations.

Under this act, these types of U.S.-based firms could not abide by the requirements of the local government in censoring or restricting search results or in denying access to sites such as Voice of America (a U.S. government-backed international news agency). The act would also prohibit these types of companies from having facilities with hardware that serves or stores data in the countries deemed restrictive.

The bill also would use a more traditional way of regulating business overseas--export licenses--to achieve Congress's goals. The government already employs this method to restrict the products companies may sell overseas (remember the controversy over the ban on exporting encryption technology?). The proposed act hints at, but does not detail, new export restrictions to come. Given the thrust of the act, companies that make filtering technology, packet analysis technology, and networking gear are likely targets for new restrictions on overseas sales of these products.

Potential Consequences

Yahoo, which has been engaged in controversial business overseas, has defended its compliance with censorship laws. While not condoning the oppressive practices of some of the countries Yahoo works in, company officials have argued that the firm's presence encourages debate on censorship issues and that its products have given residents of these nations access to more information than they would have otherwise. Though this claim is difficult to verify, Yahoo may have a point. At the very least, a lack of any non-government-supplied service does curtail user choice.

And the removal of choice may be the unintended consequence of the bill. Compliance with government regulations on censorship and sharing of user data in police investigations is often a requirement for doing any business in the nations in question. Since this would be illegal under the proposed act, U.S. search engine companies and content hosts probably wouldn't be able to do business at all in these countries.

The as-yet unspecified new export restrictions might have the same effect on a broader range of companies, as well.

Setting Priorities

Given the issues here--human rights, freedom of speech and information--many of us may be tempted to say that firms should not engage in business activities that help imprison people simply for speaking out. By that logic, any law that stops this from happening is a good one.

But this viewpoint assumes that private companies should be obliged to help enforce U.S. foreign policy abroad. Is that the precedent we want to set? How far do we go? Do we make companies support wars overseas that company boards and workers may object to? Do we make tech corporations lower the costs of their products to nations we like but keep them high elsewhere because we want to encourage technological development in some countries but not others? It would be like California telling a manufacturer based in the state that its plants in other states must adhere to California's clean-air rules.

Defense of human rights and free speech is such an important aim that we may as a country decide that, yes, in this case it's okay to make private firms work with the State Department to this degree (remember, the act even dictates what data companies may or may not store at any offices they have overseas). I believe, however, that we need to discuss the implications and perhaps make it far more clear in the bill that this level of cooperation is the exception, not the rule.

Whose Laws?

Moreover, if the bill passes into law, we'll be telling companies that their home country's laws trump local laws regardless of where their offices are located or where transactions are occurring. That invites other nations to tell their businesses that they operate under French or Russian law, say, even when they're in the United States. This could turn into the 21st century's version of tariff wars. Far-fetched? Maybe. But defining and enforcing sovereignty when you're dealing with a borderless Internet is already a problem; a law like this one could exacerbate it.

The goals of this kind of legislation may be admirable: I personally believe companies should think long and hard about whether they want to be party to censorship and potential oppression wherever they do business. But this particular bill could do more harm than good.

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