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Global Freedom, or Giant Farce?: Legislating against the Censors
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News and Politics :: Sino-American :: Human rights and personal freedoms :: News and Perspectives ::
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posted Sunday, 25 June 2006
Anybody who has even a passing interest in freedom of speech and China should well remember the rash of headlines that arose early in 2006, in which US companies stood accused of being complicit in acts of censorship overseas, and the embarrassment that was caused when it was admitted that the allegation were not only true, but that also that Congress was powerless to act against those involved.
However, if outspoken Republican Representative Christopher Smith has anything to say about it, such headlines will soon be a thing of the past, and such companies will soon be able to be held accountable.
Movement
Since February 2006, Smith has been fighting hard for the approval of H.R.4780 - better known as “The Global Online Freedom Act”. A bill which is designed to prevent US companies from aiding repressive governments in internet censorship.
Though not yet law, the bill, this Thursday, passed the first hurdle when it was given a unanimous green light by House Subcommittee on Africa, Global Human Rights, and International Operations. It is now waiting to passed up the chain to full committee level. Where its sponsors hope it will be cleared for a smooth passage onto the law books.
Intent?
If signed into law, the bill will set down a list of regulations governing the conduct of US internet and technology companies operating in China, and other environments where strict online censorship regimes exist, in order to ensure that they are 'part of the solution' and not 'part of the problem'.
It is hoped that the bill will further the development of democracy and human rights, and frustrate countries that persist in censoring the internet, by depriving them of US technology and expertise. Forcing them to rely on more expensive solutions or lower grade domestic capabilities, and allowing their citizens increase access to information.
Mixed Reception?
Although the act is seen by its supporters as 'a brave new tool to further the cause of global freedom of speech', and has been welcomed by China watchers and human rights groups alike, some concerns have been raised about not only the bill, but also about its purpose.
Unhelpful?
Among those expressing concern have been industry watchers and corporations with interests in China's booming online market. Both of whom have expressed apprehension over the bill's potential to harm American company's ability to do business in/with China, by tying them down with regulation and restrictions that do not apply to their foreign competitors.
| "If Yahoo isn't doing business in China, someone else will ...[further regulations are] putting American businesses at a disadvantage in the world marketplace." Sonia Arrison, Director of Technology Studies, Free-Market Pacific Research Institute |
Other's who viewed the bill have expressed concern that it might force US companies to leave China, thus reducing any benefits that their presence might have held for the Chinese people, or that it could potentially provoke Beijing into putting in place further rounds of internet restrictions.
| "[The approach taken by the Global Online Freedom Act] could provoke greater restrictions, or even the withdrawal of Internet services in China, which would leave the Chinese people with even less ability to access information and communicate with others." Jack Krumholz, Managing Director of Federal Government Affairs, Microsoft |
Weak?
While industry has criticized the proposed bill for being overly restrictive, some observers have voiced the opposite, and issued the criticizm that the bill doe not go far enough, and that it has been 'watered down'.
In this light, it was duly noted that the bill no longer includes a clause that would provide US companies with a firm list of 'protected words and phrases' that could not be censored or filtered out, under, under any conditions of circumstances.
Nevertheless, the bill has still been seen as an important step
| "[Even though compromises have been made] we believe it's going to help make the Internet freer and help protect the privacy of users in repressive countries" Lucie Morillon, Spokesperson, Reporters Without Borders (RSF) |
Hidden Agenda?
In addition to criticism for being too strong or too weak, some observers have also expressed concern over the 'true motives' of the bill, and have voiced alarm that certain passages and sections appear to be aimed less at 'ensuring freedom of speech' and more at 'ensuring the promulgation of American Ideologies is not blocked by American companies'.
| “This censorship by the Chinese Government promotes, perpetuates, and exacerbates a xenophobic--and at times particularly anti-American--Chinese nationalism, the long-term effect of which will be deleterious to United States efforts to prevent the relationship between the United States and China from becoming hostile.” Section 2, Article 12, H.R.4780 |
H.R.4780 - the Global Online Freedom Act?
The Global Online Freedom Act is split into 4 distinct sections
Section 1 contains official findings and definitions.
Title I contains policy information and proposals to create a supervisors and regulatory body under which H.R.4780 will operate.
Title II contains the the text of the bill (discussed below).
Title II contains mandates on export controls relating to censorship.
Below is a review and commentary on Title's II and III, which contain the main body of regulations that would be brought in under H.R.4780.
Section 201 – Jurisdiction
When found to be enforcing censorship or handing over user data to the Chinese government, both of which run counter to western ethics, one of the primary defenses offered by companies such as Google and Yahoo has been that they were required to do so by local law, and so had no choice but to comply.
| "We are mindful that governments wherever we do business around the world impose restrictions on access to information and of course we are obliged by law to follow them." Debbie Frost, Spokesperson, Google |
Section 201 aims to counter this defense by prohibiting US companies from running their services within Chinese legal jurisdiction.
| "Any United States business that creates, provides, or hosts any Internet search engine or maintains an Internet content hosting service may not locate, within a designated Internet-restricting country, any computer hardware used to house, store, serve, or maintain files or other data involved in providing such search engine or content hosting service.” SEC. 201. PROTECTION OF SEARCH ENGINES AND CONTENT SERVICES. |
Such legislation would legally prohibit US companies from operating ...
- A blog hosting service
- A web page hosting service
- An email service
- A message board service
- A file storage service
This would effectively prevent any US company from being forced to comply with local Chinese laws by preventing them from entering Chinese jurisdiction, but may force many companies not only to pull their operations centers out of Chinese territory, but also to pull their services out of the Chinese market.
Under Chinese law, many services are prohibited from operating in 'an official capacity' in China, unless they maintain their hosting services in Mainland China, and are liable to be blocked for 'operating without authorization'; A euphemisms that commonly means 'operating without restrictions'
Most services that have fallen foul of this are blogging services that offer free Chinese language accounts and search engines with Chinese language interfaces which are not subject to censorship. Skype, the internet telephony service, was also blocked in China for this reason.
Such blocks are commonly put in place soon after a domestic Chinese competitor has been launched.
| "For those foreign companies, if they are going to operate in China they have to abide by Chinese laws." Liu Jianchao, Spokesperson, foreign Ministry, China |
Ironically, the list of ' Internet-restricting country', the countries to whom section 201 applies, does not include western nations such as France or Germany. Both of these countries require that web services operating in their territory to comply with strict regulations that bar the promotion, retail, or open discussion of a variety of elements relating to WWII and the Nazi. All of which are officially recognized as protected forms of speech and expression under the US constitution.
This has lead some critics to voice that the bill appears only to be concerned with protecting type of free speech that 'harm or contradict' America's overseas economic and political rivals, rather than protecting 'the greater principles of free speech', as it constitutionally bound to do inside US territory.
Section 202 – Search Engines
While Section 201 was added in order to counter the 'local law' defense offered by the likes of Google and Yahoo - and applies to many companies in a variety of web based interests, including email and FTP service providers - Section 202 was added to deal directly with the problem of US search engines manipulating their search results to exclude sensitive topics at the bequest of governments like Beijing.
| “Any United States business that creates, provides, or hosts any Internet search engine may not alter the operation of such search engine with respect to protected filter terms either-- (1) at the request of, or by reason of any other direct or indirect communication by, of a foreign official of an Internet-restricting country; or (2) in a manner intended or likely to produce different search engine results for users accessing the search engine from within an Internet-restricting country as compared to users elsewhere.” SEC. 202. INTEGRITY OF SEARCH ENGINES. |
Under Section 202, companies may not
- Exclude protected words and phrases (for example, democracy or 'land rights') from their searches on request of a restrictive foreign government
- Amend their search engine to give preference to pages that show that government, their country, or any issues relating to them, a favorable light
- Award a lower preference to pages that show the above in an unfavorable light.
| “American IT companies who thrive on sharing information and ideas should not be complicit in aiding the repressive Chinese government in censoring and suppressing dissent” Chris Smith, Architect, H.R.4780 |
However, it is not yet clear exactly how Section 202 will deal with 'legitimate' acts of censorship for non political reasons.
Under a 'strict interpretation' of section 202, a US search engine operating in China could be legally prohibited from honoring a request from Beijing to prohibit users from sexually explicit imagery, images of animal cruelty, or sites that openly encouraged, or celebrated, the murder of Chinese citizens.
At this stage, it can be presumed that US federal law will be applied in situations where conflicts exist, though it has been acknowledge that federal law does permit numerous items that are prohibited, for legitimate and non political reasons, in more conservative countries. Including adult images and items of 'hate speech'.
Section 203 – Public Record of Censorship
Section 203 mandates that companies are no longer able to keep secret the censorship agreements that they make with 'Internet-restricting countries', and that they must report back to Washington on any agreements that they make to censor or restrict their services.
| “Any United States business that creates, provides, or hosts an Internet search engine shall provide the Office of Global Internet Freedom, in a format and with a frequency to be specified by the Office, with all terms and parameters submitted, entered, or otherwise provided by any foreign official of an Internet-restricting country, that are used to filter, limit, or otherwise affect the results provided by the search engine when used by other users.” SEC. 203. TRANSPARENCY REGARDING SEARCH ENGINE FILTERING. |
Section 203 has been welcomed by anti-censorship activists, and it holds a two fold purpose.
1) A company that must reveal the extent of its censorship is less likely to engage in censorship because of the damage that it would do to its reputation if the full extent of its actions became public knowledge.
2) A government that can no longer make secret demands for censorship is less likely to issue demands for censorship because the act of asking will, itself, draw attention to the issue.
Despite being welcomed, some controversy exists over Section 203 because so little protection is given to any data that is gathered. Leaving records open to potential misuse by Washington or groups close to Washington.
As such, observers have voice fears that such data could be used to 'tune' inflammatory or potentially inflammatory websites and information campaigns so that they could either pass though Chinese filters, or be targeted at issues that have newly become sensitive. A situation that could provoke foreign censors into putting in place tigter restrictions or to crack down harder the domestic web users.
Concerns have also been raised over the fact that Section 203 mandates that US companies must also report back to Washington on any demands for censorship that are made on them, by prescribed governments, regardless of whether or not the company acquiesced to them.
In China requests for censorship are often considered to be 'state secrets' in China, and revealing that such requests had been made could put US companies in breach of domestic Chinese law.
Reveiling requests could also open US companies up to increased federal scrutiny, especially if a company resieved more requests for censorship than its rivals.
Section 204 – Protecting Propaganda?
Though most sections of the proposed bill have raised mixed feelings among observers, and have variously been criticized for being too strong, too weak, to vague, or too specific, the section that has raise the most concern among some observers is Section 204.
Section 204 specifically, and exclusively, exists to protect websites originating from, or close to, Washington, and applies regardless of their content, merit or legitimacy.
| "A United States business that maintains an Internet content hosting service may not conduct Internet jamming of a United States-supported website or United States-supported content in an Internet restricting country." SEC. 204. PROTECTION OF UNITED STATES-SUPPORTED ONLINE CONTENT. |
While the inclusion of this section would prevent the blocking of US government websites, including those maintained by NASA, the FBI and the Library of Congress, critics have voiced concern because the bill also offers 'specific and individual protection' to website that fall outside of the 'normal remit' of a state government. Including those that actively interfere in the internal affairs of other countries by encouraging the over throw of their governments or systems.
Section 204 would offer full legal protection from blocking to state run sites like “Voice of America” and “Radio Free Asia” which are not independent, operate based on US foreign policy, and are known to be actively hostile to both the Chinese government and its system of governance to the point of acting to encouraging 'regime change'.
Outside of the political sphere, Section 204 would also offer full protection to Washington sponsored/backed sites that go against legitimate domestics policies of the Chinese government. Including sites that contain false or misleading data in relation to abortions and contraception, and sites that whitewash genuine scientific data on issues such as climate change.
Section 205 – Enhanced protection from blocking or deletion
Section 205 carries a similar purpose to Section 203, and differers only in that it applies to actual content, rather than the ability to locate content through a search engine.
| “Any United States business that maintains an Internet content hosting service shall provide the Office of Global Internet Freedom, in a format and with a frequency to be specified by the Office, with copies of all data and content that such business has, at the request of, or by reason of any other direct or indirect communication by, any foreign official of an Internet-restricting country-- (1) removed from the content hosting service of such business; (2) blocked from availability on the Internet; or (3) blocked from transmission via the Internet into or within an Internet-restricting country.” SEC. 205. TRANSPARENCY REGARDING INTERNET CENSORSHIP. |
Under section 205, a US company operating in China must inform Washington of all content (including, but not limited to, websites and blogs), that it deletes from its hosting services, or which it blocks access to through its network or network hardware. It must also inform Washington of any requests that it receives for such actions, regardless of whether it has complied with them.
Owing to its similarity to Section 203, most of the same benefits and concerns exist.
With this said, the one area in which Section 205 stretches substantially beyond Section 203, is that Section 205 applies not only to service host and providers, but also to ISPs and infrastructure providers.
As such, Section 205 compels all US ISPs operating in China to provide Washington with a list of all sites which they
A) bar access to on Beijing's request
B) have been asked to bar access to on Beijing's request.
The reasons for this are the same as for Section 203 (See Section 203 – Public Record of Censorship, points 1 and 2).
While welcomed as a means to protect private web users from having their individual content blocked, some concerns exist as the wording of the legislation could be used to compel a web company to provide Washington with information on deleted content, but also the content itself.
Additionally there are concerns that Section 205 could be used to compel hardware providers to hand over similar information to service providers.
At present, the depth of the information that would be by Washington is unclear, as is the extend to which Washington would hold a company responsible if their product was used in censorship , or if they provided training that was later used by Chinese censors (See Section 301 for further information).
Section 206 – Personal Privacy
Section 206 is designed to prevent US companies from handing over information on users and account holders to restrictive governments who wish to prosecute them for breaching on online publishing.
It was written specifically to ensure that US companies are prevented from naming or identifying dissidents who speak out against their governments, or who call for greater human rights.
This clause comes in the wake of a number of incidents in which Chinese activists have been sentences for “sedition” “inciting Sedition” or “revealing State Secrets” after their personal details were surrendered by online service providers.
| (a) User Protection- Any United States business that maintains an Internet content hosting service may not provide to any foreign official of an Internet-restricting country information that personally identifies a particular user of such content hosting service, except for legitimate foreign law enforcement purposes as determined by the Department of Justice. (b) Private Right of Action- Any person aggrieved by a violation of this section may bring an action for damages, including punitive damages, or other appropriate relief in the appropriate district court of the United States, without regard to the amount in controversy, and without regard to the citizenship of the parties. SEC. 206. INTEGRITY OF USER IDENTIFYING INFORMATION. |
However, observers have noted that this might be 'legally difficult' to implement Section 206 in regards to China, and could even be rendered completely useless because of conflicts and vagaries in its wording.
A case in point is the journalist 師濤 (Shi Tao), who was sentenced to 10 years in Prison in April 2005 for 'endangering national security' by 'revealing state secrets'.
師濤 (Shi Tao) was detained on 24 November 2004 after he transmitted the abstract of an official document to a foreign sources. Later, Yahoo provided Beijing with information from his “Yahoo mail” account that helped Beijing to personally identify him as being the sender of the abstract. According to Yahoo, it had no choice but to comply with Chinese law (Some arguments of jurisdiction exist but will be put aside for the purposes of simplicity).
| "Just like any other global company, Yahoo! must ensure that its local country sites must operate within the laws, regulations and customs of the country in which they are based," Mary Osako, Spokesperson, Yahoo (Hong Kong) |
This data was used as a keystone in his conviction, but may not be protected by H.R.4780.
H.R.4780 specifically states that any action that it data may only be handed over for if required for 'legitimate foreign law enforcement purposes'. Which it defines as being ...
| (A) IN GENERAL- The term `legitimate foreign law enforcement purposes' means for purposes of enforcement, investigation, or prosecution by a foreign official based on a publicly promulgated law of reasonable specificity that proximately relates to the protection or promotion of the health, safety, or morals of the citizens of that jurisdiction. (B) RULE OF CONSTRUCTION- For purposes of this Act, the control, suppression, or punishment of peaceful expression of political or religious opinion, which is protected by Article 19 of the International Covenant on Civil and Political Rights, does not constitute a legitimate foreign law enforcement purpose. Title 1, Section 3, Article 8, LEGITIMATE FOREIGN LAW ENFORCEMENT PURPOSES |
In turn, this definition gives reference to Article 19 of “The International Covenant on Civil and Political Rights”. Which is where things become difficult.
Article 19 specifically and irrevocably excludes activities that conflict with the 'national security' of a state, from legal protection.
| “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” Article 19, Section 3, International Covenant on Civil and Political Rights |
師濤 (Shi Tao) knowingly transmitted a document that he had been informed was classified, and was specifically ordered not to transmit or reveal, to a foreign source. This put him in breach of Article 4, clause 3 of the “State Security Law of the People's Republic of China”, which classifies “stealing, secretly gathering, buying, or unlawfully providing State secrets” as being an infringement of national security. Thus protecting it as a legitimate act of law enforcement under Chinese law.
Whether a US court would rule in favor of Yahoo, in this case, remains a matter of debate because similar laws exist within the US, and for similar reasons. Though their implementation is divergent.
In addition to containing a clause protecting individual information, Section 206 contains a clause enabling the victim of such a release to carry their case to a US court.
It remains to be seen exactly how practical this will be. Particularly as most individuals who are subject to such releases of information, by service providers, are in custody by the time such releases become known, and are thus unable to bring a direct legal action in the US.
Section 207 – The Sting
Section 207 covers the Sting provided for by H.R.4780, including the upper limits for fines and jail terms. It includes specific limits for corporate and individual liability.
| (a) Civil Penalties- (1) Any United States business or United States person that violates section 206(a) shall be fined not more than $2,000,000. (2) Any United States business or United States person that violates sections 201, 202, 203, 204 or 205 shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General. (b) Criminal Penalties- (1) Any United States business that willfully violates, or willfully attempts to violate section 206(a) shall be fined not more than $2,000,000, or if a natural person who is an officer, director, employee, or agent of a United States business, or stockholder acting on behalf of such United States business, shall be fined not more than $100,000, or imprisoned not more than 5 years, or both. (2) Any United States business that willfully violates, or willfully attempts to violate section 201, 202, 203, 204 or 205 of this Act shall be fined not more than $10,000, or if a natural person who is an officer, director, employee, or agent of a United States business, or stockholder acting on behalf of such United States business, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both. (3) Whenever a fine is imposed under paragraph (2) upon any officer, director, employee, agent, or stockholder of a United States business, such fine may not be paid, directly or indirectly, by such United States business. SEC. 207. PENALTIES. |
Section 301 – Exportation of Censorship
While Sections 201 – 205 deal with companies that are directly involved in censoring their own services, Section 301 covers companies who are complicit in the 'technical' aspects of censorship through the export of computer hardware used to block Chinese web users from accessing certain pages, and the software which scans pages that are being downloaded for restricted key words.
| “Not later than 90 days after the date of the enactment of this Act, the Secretary of State, in consultation with the Secretary of Commerce, shall promulgate regulations to ensure the establishment of appropriate foreign policy control and export license requirements before any person subject to the jurisdiction of the United States may knowingly export any item subject to sections 730 through 774 of title 15, Code of Federal Regulations (commonly known as the `Export Administration Regulations') to an end user in an Internet-restricting country for the purpose, in whole or in part, of facilitating Internet censorship.” SEC. 301. ESTABLISHMENT OF EXPORT CONTROLS. |
Section 301 mandates that new legislation be put in place, but is not in itself a firm legislative clause, so its full impact cannot be actively gauged.
The Code of Federal Regulations named are also too long to be covered in this report, but the full text of the can be found Here (http://www.law.cornell.edu/cfr/)
Section 301 is most likely impact upon companies like Cisco Systems and other providers of 'duel use' system; systems that can be used for legitimate network management and administration but which can be, and often is, used to facilitate online censorship.
Technology companies in the United States have provided the technology and training to authoritarian foreign governments to assist such governments in filtering and blocking information that promotes democracy and freedom.
In the case of Cisco systems, features in their products that are designed to allow a network administrator to legitimately close off vulnerable sections of their network, direct traffic in the most efficient manner, or prevent unauthorized traffic from being directed to restricted areas, can be used to block Chinese users from accessing 'forbidden' website.
| "Our routers have embedded technology in them that allows network administrators to manage their networks ..... this technology can be used to block access to sites they don't want users to access." John Earnhardt, Senior Manager for Policy Communications, Cisco Systems |
Similarly, training in network management provided by these hardware suppliers, such as Cisco, can be used to educate network censors, while software provided to scan website in 'real time', for legitimately blockable material - including pornography and hate material – can also be used to block sites on democracy and human rights.
Section 302 – Follow up
Section 302 mandates that a report be submitted to detail progress towards the fulfilment of Section 301. It requires no discussion.
| Not later than 120 days after the date of the enactment of this Act, the Secretary of State, in consultation with the Secretary of Commerce, shall submit to the appropriate congressional committees a report describing the actions taken to implement the requirements of section 301 of this Act. SEC. 302. REPORT |
Please note: The elements contained here may be subject to change or revision as the pass though the legislative process. They may also be scrapped or added to.
This should not be taken as a complete representation of the final bill, or a complete review of its contents.
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Superb. Thank you.