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Why You & Yahoo Should Like This Human Rights Law 217

Posted by CmdrTaco
from the say-what-you-wanna-say dept.
Regular contributor Bennett Haselton has written in to say that "The Global Online Freedom Act, introduced last year during a firestorm of controversy over American companies cooperating with totalitarian governments in China and elsewhere, was introduced this month as the Global Online Freedom Act of 2007. When Chris Smith (R-NJ) first introduced the law in 2006, Yahoo was under fire for recently turning over information to Chinese authorities that led to the arrest of a political dissident, Microsoft was attacked for removing pages from MSN Spaces China at the behest of the government, Google was being criticized for removing political sites from search results displayed to China, and Cisco was accused of helping to enable Chinese filtering of the Web. All four corporations testified at a February 2006 House hearing during which Representative Tom Lantos summed up the mood of many of his colleagues by telling the companies, "I do not understand how your corporate leadership sleeps at night." The companies protested that they had no choice but to comply with local Chinese laws, but that they were troubled by their own actions, and -- in a rarity for individual tech companies, much less for a chorus -- they all invited the U.S. government to play a bigger role, while being vague about what the role should be."

GOFA would create a U.S.-government-designated list of "Internet restricting countries" and would in most cases prohibit U.S.-based companies from censoring content or turning over users' information to the governments of those countries. Do these companies want GOFA to pass? And is GOFA a good law? I think, yes and yes, but the answers are more complicated than they seem.

With American "collaboration" less in the news, GOFA made less of a splash when it was re-introduced this year, but it is still the subject of spirited debate. Reporters Without Borders, Amnesty International, and other human rights groups have already signed a statement supporting the July 2006 version of the bill (nearly identical the 2007 version). But blogger-journalist Rebecca MacKinnon argues that by creating a government-maintained list of "Internet censoring countries", the law falls short of calling for support of free speech in all countries (the initial list, for example, includes Iran and China, but leaves out notorious human rights violator and net-censor Saudi Arabia). Danny O'Brien of the EFF backs this position as well, and also argues the organization's long-standing position that "code is speech" and that filtering software should not be subject to export regulations that are proposed in the law.

I agree with MacKinnon that instead of using a list of "Internet restricting countries", we should require the same standards of U.S. companies wherever they do business, or at least, stop playing silly games like leaving Saudi Arabia off of a list of human rights violators because Bush is friends with the ruling family. I agree with the EFF that filtering software should be considered First-Amendment-protected speech like encryption software, and not be included on an export-prohibited "munitions" list. And for reasons listed below, I think that the law won't stop censoring countries from blocking any speech they want. But even with all of these qualifications, I think the law would be a step in the right direction, if only for the rules prohibiting companies from turning over users' personal information to the governments of countries like China and Iran. It's painful to give a pass to countries like Germany that also censor political speech, but I think that the situation is so much worse in places like China that we should do what we can in the short term. And for reasons I'll get into, I think that Microsoft, Yahoo, Google and Cisco are secretly hoping that a law like GOFA does get passed -- even if they can't come out and say so.

First, what the law does not do: There is still nothing to stop a U.S. company from blocking or removing legal, political content at the request of a foreign government. Section 204 says only that American content-hosting companies and content-filtering companies have to provide the U.S. government with a list of sites that have been removed or blocked at the behest of a censoring country.

Section 205 does say that U.S. companies may not block or remove sites that are operated by the U.S. government, or by any entity that receives grants from the International Broadcasting Bureau to help defeat foreign censorship. Presumably that would include Peacefire, at least during the periods when we're under contract to the IBB to develop the Circumventor software (but before you start calling me Hallibennett, I'm not working for the IBB right now, and it was my own idea to write this). So the American government, while requiring schools to block us in the U.S., would actually be helping to get us un-blocked in China and Iran! But Section 205 only says that a U.S. business may not block or shut down such sites. As far as I can tell, that means if the Cisco engineer on site in China sets up their routers for them, the Cisco engineer can't put VOANews.com on the block list. But then the Chinese official can walk across the room and add it to the list himself, can't he? Which is almost certainly what they'll do, since the routers are in their country.

So, I think the regulations against Internet blocking will be easy for foreign governments to ignore. But where the law could make a difference is in the prohibition against turning over users' personal data to law enforcement in censoring countries. Section 201 says that servers located in a censoring country cannot contain personally identifiable user information (so that the local police cannot simply storm in and seize the data). Section 202 says that American companies can only turn information over to law enforcement of a censoring country if the information is needed "for legitimate foreign law enforcement purposes as determined by the Department of Justice". MacKinnon has criticized this aspect of the law as well -- "If Americans don't want the DOJ to have access to their user information, why should anybody else?" Very true. But, even at the lowest point of public confidence in the Department of Justice, I think most people living outside of fortified compounds stocked with beef jerky and gold bullion, can agree that the U.S. DoJ has more integrity and legitimacy than the government of China, and that such a rule would mean fewer Chinese dissidents going to jail.

What do the affected U.S. companies think of the law? Microsoft, Yahoo, and Cisco did not respond to requests for comment. A Google PR person replied to say, "We welcome intiatives that expand access to information and protect the rights of users across the globe. At the same time, we remain concerned that legislation in this area can have unintended consequences, so we intend to study any such proposals closely, and work with proponents and others to reach the right outcome." When I replied that the Global Online Freedom Act had been proposed more than a year ago and had been online in its current form since June 2006, presumably enough time to "study such a proposal closely" and take a position on it, he said they would stick with that statement for now. (In his e-mail, he actually put quote marks around the company's statement, which I thought was a nice dry touch.)

But past statements from the respective companies have indicated they would be amenable to such a law. Bill Gates, never one to be shy about criticizing government regulation that he disagreed with, was asked in a February 2006 interview with the London Times, "Should the US government establish guidelines to regulate how internet companies deal with censorship in countries like China?" and answered, "I think something like the Foreign Corrupt Practices Act has been a resounding success in terms of very clearly outlining what companies can't do and other rich countries largely went along with that." At the February 2006 house hearings to discuss American companies' cooperation with overseas censors, representatives from all companies indicated that they actually wanted the government to play a bigger role -- they were vague about what such a role would be, but this was only a month after the first draft of the Global Online Freedom Act had been proposed, the only such law on the table at the time.

At first this might seem paradoxical -- why would companies seem amenable to, even supportive of, laws that would restrict what they can do? But it actually makes sense if you consider their negotiating position with the Chinese government. Currently, the Chinese censors can tell Microsoft, Yahoo, and Google that they either have to either play by the Chinese rules or get out, and the censors know that the companies will comply (without even necessarily feeling guilty about it -- the companies can always say that the Chinese people are better off with a censored version of their services than no access at all).

But if the companies' hands are tied by U.S. law, then they can basically present the Chinese government with a take-it-or-leave-it deal: You can use our e-mail and messenger and blog services, just know that our government won't let us turn over users' personal information if you ever want it. The Chinese censors are presumably coming from the point of view that they'd rather have a controlled Internet, but that it's more important to reap the economic benefits of having the Internet in their country, even if some control is lost (after all, if they didn't believe that, they wouldn't have connected to the Internet in the first place). Hence it's not likely that they'd throw out Yahoo Mail and Google search and MSN Messenger when so many users depend on these and use them for business as well as personal use. (Even if there are Chinese-made alternatives, there would be the huge cost of switching everyone over, and no longer being able to use the old tools to communicate with American companies.) So a law controlling the actions of U.S. companies would very probably allow them to keep doing business in censored countries, while giving them an excuse not to turn over users' data.

But, that might not work if it looks like the companies pushed too hard for the law themselves. If the Chinese see Yahoo fighting tooth and nail to pass a law that restricts what information Yahoo can hand over to China, the Chinese censors could take that as a slap in the face, and punish Yahoo for defying them even after the law is passed that prohibits Yahoo from cooperating. "Oh, you can't give us that information because of the law? This law right here that you lobbied for?"

So, when the general counsel of Yahoo says, "Ultimately, the greatest leverage lies with the U.S. government"; when the Vice President of Google tells Congress, "And certainly also, finally, there is a role for government. We do need your help, and you can help us"; when the associate general counsel of Microsoft testifies, "It is, therefore, the responsibility of governments, with the active leadership of the United States, to seek to reduce or reconcile these differences", I think what we're hearing are subtly encoded messages saying, "Pass this law, or something like it; we just can't look like we wanted it to pass." So, Congress should give them what they want, even if they can't ask for it directly. And at the same time they would be helping users in censored countries all around the world, before the next one gets sent to jail because an American company turned over their information.

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Why You & Yahoo Should Like This Human Rights Law

Comments Filter:
  • Grow a pair (Score:5, Insightful)

    by udderly (890305) * on Wednesday January 31, 2007 @01:01PM (#17829276)

    I think what we're hearing are subtly encoded messages saying, "Pass this law, or something like it; we just can't look like we wanted it to pass." So, Congress should give them what they want, even if they can't ask for it directly.

    Translation: We don't have the balls to stand on principle and we don't want the loss of revenue that would result from getting out of these markets, so we have to be able to say that our gov't made us do it.

  • Uhhuh (Score:3, Insightful)

    by TodMinuit (1026042) <todminuit&gmail,com> on Wednesday January 31, 2007 @01:06PM (#17829328)
    I do not understand how your corporate leadership sleeps at night.

    Ambien

    The companies protested that they had no choice but to comply with local Chinese laws, but that they were troubled by their own actions

    Until they got the check and the good PR.

    And is GOFA a good law?

    No it's not. Such a law won't stop anything from happen, it'll merely move it out of the hands of US companies. I don't think that's a good thing.
  • by Billosaur (927319) * <wgrother@HORSEop ... minus herbivore> on Wednesday January 31, 2007 @01:15PM (#17829468) Journal

    But if the companies' hands are tied by U.S. law, then they can basically present the Chinese government with a take-it-or-leave-it deal: You can use our e-mail and messenger and blog services, just know that our government won't let us turn over users' personal information if you ever want it. The Chinese censors are presumably coming from the point of view that they'd rather have a controlled Internet, but that it's more important to reap the economic benefits of having the Internet in their country, even if some control is lost (after all, if they didn't believe that, they wouldn't have connected to the Internet in the first place). Hence it's not likely that they'd throw out Yahoo Mail and Google search and MSN Messenger when so many users depend on these and use them for business as well as personal use. (Even if there are Chinese-made alternatives, there would be the huge cost of switching everyone over, and no longer being able to use the old tools to communicate with American companies.) So a law controlling the actions of U.S. companies would very probably allow them to keep doing business in censored countries, while giving them an excuse not to turn over users' data.

    At which point the Chinese government will erect the Great Firewall of China (adding in their buddy North Korea for good measure), and then force their citizens to use government-sponsored computers, routers, network connections, mail clients, etc. And then Chinese censors will be able to have the data anytime they want it. China has all the capability needed to do this, so it's not beyond the realm of possibility.

  • Re:Grow a pair (Score:5, Insightful)

    by TheWoozle (984500) on Wednesday January 31, 2007 @01:18PM (#17829500)
    What country do you live in? When was the last time you heard of Wall Street being bullish on a stock because the company was a champion of human rights?

    In the USA, officers of a company have a legal obligation to not intentionally harm the company's stock value through policy decisions. It's entirely possible that if the company leadership "grew a pair" and the result was being kicked out of China, the stockholders would file suit.

    Capitalism doesn't work the way you suggest. Unless you want to re-write the ground rules to introduce factors other than "what will make us the most money" into the equation, then you're stuck with the current greedy, take-no-prisoners, CYA corporate status quo.
  • I'm confused (Score:5, Insightful)

    by BrianRoach (614397) on Wednesday January 31, 2007 @01:18PM (#17829504)

    Ok ... someone please elxplain, because I don't get it.

    Doing internet business in communist and other countries which have oppressive regimes and following their local laws rather than US law (free speech, censorship, etc) is bad.

    Pouring billions of dollars into their economy via manufacturing and giving them "preferred trading status" while following their local laws rather than US law (wage minimums, working conditions, etc) is good (See: China).

    Makes perfect sense if you're a politician I suppose.

    - Roach
  • by AHumbleOpinion (546848) on Wednesday January 31, 2007 @01:20PM (#17829536) Homepage
    "Yahoo was under fire for recently turning over information to Chinese authorities"
    "Microsoft was attacked for removing pages from MSN Spaces China at the behest of the government"
    "Google was being criticized for removing political sites from search results displayed to China"
    "Cisco was accused of helping to enable Chinese filtering of the Web"


    This is a poor list. Turning over identifies and removing/filtering content are vastly different activities. You trivialize the former by lumping it in with the later.
  • by moeinvt (851793) on Wednesday January 31, 2007 @01:30PM (#17829650)
    What a bunch of elitist jackasses we have in the halls of Congress!

    They start bloody military conflicts where thousands are killed and maimed, trample on The Constitution, run up $8 trillion in national debt for future generations to pay off, etc. etc. and then have the AUDACITY to suggest that some corporate execs should be overwhelmed with guilt about filtering search results and shutting down web pages?
  • Re:Grow a pair (Score:1, Insightful)

    by Anonymous Coward on Wednesday January 31, 2007 @01:31PM (#17829666)
    Not to mention, at some level, this isn't a "human rights" thing, it's a "sovereignty" thing -- companies are bound to obey the laws of the countries they do business in. This ridiculous proposed law giving Google the "freedom" to disobey Chinese censorship laws is a complete non-starter, for the obvious reason that a Chinese court isn't going to care what the relevant US law is... nor should they. All this will do is prevent Google, Yahoo, et al., from doing business in China, and I suspect guys like Baidu.com will be more than happy about it.

    Indeed, this will likely have a detrimental effect on Chinese freedom, since US-owned companies are more free to bend Chinese laws without fear of physical reprisal or of nationalization.
  • Re:I'm confused (Score:3, Insightful)

    by skiingyac (262641) on Wednesday January 31, 2007 @01:33PM (#17829690)
    You're confused?

    1) We spend billions of dollars and kill millions to fight terrorism and oppressive dictators in various countries, "because its the right thing".

    2) We make drugs illegal and drug dealers import them from said countries instead of growing them here & taxing the crap out of them, and we manufacture billions of $$ of weapons and when they're not top-of-the-line anymore or we just have too many, we sell them to random places and they end up in the same said countries. I'd imagine all that money & ammo has some effect on our success in #1.

    Policy doesn't have to be logically consistent, it has to create/perpetuate a self-sustaining system in the short/medium term.

    (not the way I'd do it, just telling it like it is)
  • Re:Grow a pair (Score:3, Insightful)

    by Acy James Stapp (1005) on Wednesday January 31, 2007 @01:40PM (#17829766)
    IANAL

    The board of directors has a fiduciary duty to look after the interests of the corporation. These interests are typically financial but if the corporate charter has goals other than profit, such as "do no evil", the directors can be liable for failing to uphold them.
  • Re:Grow a pair (Score:3, Insightful)

    by ajs (35943) <ajs@@@ajs...com> on Wednesday January 31, 2007 @01:47PM (#17829870) Homepage Journal

    In the USA, officers of a company have a legal obligation to not intentionally harm the company's stock value through policy decisions. It's entirely possible that if the company leadership "grew a pair" and the result was being kicked out of China, the stockholders would file suit.
    Show me the law.

    There is, to my knowledge, no such law. What officers of a company have is a fiduciary duty [wikipedia.org] to increase stockholder value according to the terms of the stockholder's purchase of stock. This includes, and is almost entirely circumscribed by the details of the S1 or "red herring" filing with the SEC. If your S1 says, "we will lose money, year after year, until everyone allows freedom of the press in their countries," then that's what your stockholders can hold you to. They understood the terms under which they were getting in bed with you (or should have... that's their duty), and can't complain when you do what you said you would.

    This is one of the reasons that Google's S1 is important. It doesn't guarantee that they'll do the right thing, but if they do, and stockholders complain, they can always point to their S1 and say, "what part of 'Don't be evil' did you not understand?" It's not a marketing thing, it's a legal disclaimer.

    In this case, it's not clear to me if Google did the right or the wrong thing, and I don't think we can answer that objectively ... yet. Yahoo! and Cisco, on the other hand, have clearly hurt the Chineese people in tangible ways (Cisco is probably responsible for far more arrests than Yahoo!, but they don't get the same bad press because you can't point to specific instances where their monitoring tools have identified activists). For them, there's no other alternative, since their actions would have to be outright illegal for them to not pursue any profit that they can.

    I have to say that, post-Google's IPO, I would never issue an S1 that didn't contain at least a vague morality clause like Google's. It's actually good business practice.
  • Re:Grow a pair (Score:2, Insightful)

    by Anonymous Coward on Wednesday January 31, 2007 @02:06PM (#17830068)
    Actually, capitalism is entirely neutral.

    The officers of a company are not obligated to worry about stock values. They are obligated to act in the interest of the stockholders. If the stockholders value stock value above all else, then the officers of the company must act in a way which maximizes stock value. However, stockholders may hold core ethical values (e.g. environmentalism) above profit, in which case the officers of the company must act accordingly.

    Yes, on the surface, it looks like capitalism favors efficiency above all else. A company which inefficiently uses environmentally sound manufacturing practices has a competitive disadvantage against a polluting, but more efficient competitor. However, the reality is that this simply reflects the values of consumers. As long as consumers value a lower price over environmentally sound manufacturing processes (for instance), corporations will act accordingly or die. It is survival of the fittest - and the consumers create the environment.

    So, who is really to blame? Well, the officers are not directly to blame. But their only defense is that they were "just following orders". So there is absolutely nothing wrong with denigrating them. (They could, after all, go find work elsewhere.) Likewise, the stockholders are not responsible for the environment they find their business in, but they are responsible for its actions. So it is perfectly acceptable to denigrate them as well.

    However, only consumers who refuse to use such products have any right to denigrate the companies which provide them! Consumers who use these products and do not demand companies meet their own core values are the ultimate cause here. They've created the environment in which these corporations must survive. To denigrate the corporation for trying to survive in this environment while simultaneous actively creating such an environment is hypocrisy.
  • Re:I'm confused (Score:3, Insightful)

    by Kelz (611260) on Wednesday January 31, 2007 @02:33PM (#17830424)
    Here the question becomes: Does China need US (no pun intended) more than WE need THEM?
  • by forand (530402) on Wednesday January 31, 2007 @03:04PM (#17830844) Homepage
    So you are one of those that thinks because I do something wrong I can't see you doing something wrong? This is such a bunch of crap. If Charles Manson was the first to come out and say that Enron was a dirty company with horrible financial records would it make it less true? Politicians are in the business of standing behind curtains making bad deals and telling us all how to live. Sometimes they get it right and sometimes they don't lets hold them accountable for their actions but if they get something right we shouldn't throw it out because they are bad people.
  • by element-o.p. (939033) on Wednesday January 31, 2007 @03:27PM (#17831144) Homepage
    Not to be a troll, but it's not these companies but rather the U.S. politicians that should have trouble sleeping at night! From the summary:

    ...Yahoo was under fire for recently turning over information to Chinese authorities that led to the arrest of a political dissident...Representative Tom Lantos summed up the mood of many of his colleagues by telling the companies, "I do not understand how your corporate leadership sleeps at night."

    Meanwhile, AT&T is turning over phone records to our fricken' government without either a warrant or a subpeona, legislation like the Patriot Act and CALEA is trampling over 200 years of civil rights, and detainees are rotting in Guantanamo Bay while Alberto Gonzales is saying that there is no guaranteed right to habeas corpus in the Constitution.

    Give me a break--it must take some serious cojones to point the finger at China while doing as much as possible to emulate them right here in the good ole U.S. of A. <shakes head in disgust>
  • Re:I'm confused (Score:3, Insightful)

    by BrianRoach (614397) on Wednesday January 31, 2007 @03:39PM (#17831278)
    "Only at certain levels are standards connected to human rights, but reality dictates that if a country is only at a certain level of economic development you can only expect a certain standard of work conditions for example. "

    If that's the case why isn't the same assumption made regarding rights?

    You're saying we assume that a developing nation won't have our standards for work conditions, etc ... but they should have our standards when it comes to things like our standards for speech and expression. That doesn't make any rational sense to me.

    - Roach
  • by RexRhino (769423) on Wednesday January 31, 2007 @05:54PM (#17833766)
    Yes, only when the U.S. government has absolute power to dictate the actions of companies, even outside the U.S., including punishing them for actions that are legal both countries, can this scourge of overzealous government control be ended!

    The key to fighting totalitarianism, is to give the government totalitarian control so it can fight totalitarianism!
  • Re:I'm confused (Score:3, Insightful)

    by BrianRoach (614397) on Thursday February 01, 2007 @02:17AM (#17839390)
    "Ummm, doesn't that prove the point. We go to the cheapest country to do industry, and eventually the industry in that country changes to the point where workers are receiving higher wages, equipment costs more, and they become more technically accomplished in their own right."

    Where along the way did the working conditions improve or conversion to democracy occur? They simply wanted more money for what they were doing, and I doubt it went to the workers.

    Last time I looked neither Korea nor Pakistan has a roaring economy, and have in fact lost a great deal of its newfound manufacturing jobs to China. Unless they want to undercut China, they're not getting those jobs back either unless your big wheel makes back around to them again in 30-50 years.

    - Roach

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