Why You & Yahoo Should Like This Human Rights Law

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.

Make internet technology a munition then

[xtal]

..and refuse permission to export to countries that don't respect civil rights. There. Even playing field.

This is a joke; they're all hypocrites, they all worship the almighty dollar over human liberty. Every company listed literally is falling over themselves to access new markets.

If you want to trade with countries like this, at least have the balls to owe up to what you're doing. You obviously don't feel THAT bad. I'm sure someone rotting away in jail because of your reporting feels much worse.

the game

[rolyatknarf]

So these companies get the US government to prevent them from handing over information to a foreign government. Then, when that foreign government wants to track down a violator of their rules these companies get to play the:

Same Lame Blame Game

"There is nothing we can do to help you because our US government prevents us from doing that". Now their ass is covered and someone takes the heat for them. They want to take no risk or responsibility. Nothing new about this. Profit without liability.

Re:Uhhuh

[morgan_greywolf]

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.

Right, but then companies will have no choice but take a 'take-it-or-leave-it stance' with the Chinese government. It's a game of 'good cop/bad cop'. When the Chinese government comes in and says, "give me your subscriber list", the companies can now pass the buck, point a thumb back at Uncle Sam and say, "Huh, sorry, you'll have to take that up with them. In the meantime, the only other thing we can do is stop providing services in your country."

Re:So umm

[skiingyac]

I was at a conference a few months ago and had lunch with someone from Iran. He talked about how he was unhappy with how Iran's president was pissing off the rest of the world, etc. He said he voted for him, but he likened the election to being given a choice between two spoons, clean ones which he took from the table and held up. Maybe one is a little shinier, but they're both spoons. And he lamented how people guessed wrong and they are now stuck with some crazy guy for 4 years.

I've not been able to vote for too many presidents, but I can't say I was ever thrilled with either of the 2 spoons... er, candidates.

Re:Grow a pair

[drinkypoo]

Perhaps, rather than continually applying legal hacks like this, something should be done to address the root problem. If shareholders are the cause of corporate decisions, make them responsible for them as well.

So in other words lets completely dismantle our financial system so that we can maintain the moral high ground......while we're all reduced to living in shacks and eating ramen noodles for dinner.

So what you're saying is that instituting a policy of responsibility would destroy civilization?

I think it's the only thing that can save it.

Just think, if shareholders didn't just share in dividends, but were required to pay money (probably in the form of loss of shares) as part of any financial punishment levied against a corporation for its wrongdoing, they might actually employ some kind of responsibility in their investments! And then, corporations would be forced to be good citizens if they didn't want to scare off every investor!

Gee, wouldn't that be terrible?

Nice FUD, twink.

Re:I'm confused

[rawb]

I'm not confused at all. Both US parties, for the most part, support free speech at least enough to give lip service to it. Championing that globally is "American".

Half of America doesnt believe in the minimum wage or government oversight on business at all. So it's no surprise at all that we don't champion those rights abroad.

Hell, America was one of the biggest impediments (and still is) to including social issues like wages and access to services in the universal declaration of human rights.

Re:Grow a pair

[KlomDark]

No, simply make them liable for investing in immoral companies. If the immoral company gets shut down, they lose their money. That should be good enough, rather than having to make their liability something like fines or jail time. Just enough of a nudge to make them consider investing in companies that are not into nefarious activity.

Just a minor change to the law that makes it so companies cannot be sued by shareholders for merely upholding good moral standards: Company gets kicked out of China for refusing to submit to an immoral request? Not a reason to sue (or at least win the case) for negligence.

Wouldn't that be a nice long term effect on things? I think it would be. Sure, people could still try to sue, but if a court found that the company was acting in the best interest of mankind or freedom, then the case gets thrown out.

Re:Grow a pair

[Irish_Samurai]

Finally, another voice who recognizes what a board really is legally bound to do. There is no law stating that officers of a public company have to maximize profits. They have a legal responsibility to act in the manner directed to them by the majority of voting shareholders. As you stated, this is most often a directive of "maximize profits", but not always.

Every time someone states that Milton Friedman quote as a law, the trader loses his license.

Re:Grow a pair

[alan_dershowitz]

Companies are also bound by the laws of the country they are INCORPORATED in. This has always been the case. A company doesn't have the right to incorporate in the USA if it can't follow US laws, and it doesn't have the right to operate in China if it can't obey Chinese laws. This necessarily excludes some types of business ventures with some types of foreign governments.

No one is asking anyone to violate any nation's sovereignty and no one is taking away the right to run a business as one sees fit. American companies just want to have their cake and eat it too, make profit outside the USA doing while doing things not legal within our borders. I personally think that if an American company runs manufacturing facilities outside the USA they should still be bound by USA pollution standards, because it's all the same air and water.

This would only apply to Google if the law PASSED, I realize this.

Useless Without International Sanctions

[logicnazi]

I have to say that I'm extremely exasperated by the complaints against google for censoring their content. Yes, censorship is bad but it really pisses me off when people blame a company just for being tangled up in some unpalatable area even if their actions are a net benefit. The, quite compelling, justification that google gave for engaging in censorship was that if they didn't do it the Chinese would have access to even less information and that more censor friendly companies would take over.

This law still presents the danger of similar bad consequences. To the extent that foreign companies can still censor material we may see companies like Google who reluctantly censor material at government request replaced with foreign companies eager to please censoring government to curry favor. The net effect of this might be to create a second economy in censor friendly IT information. The last thing we want is to have a Chinese company position itself as a more censor-friendly alternative to google to all the oppressive regimes around the world.

So I'm unsure about the goodness of this bill. It may be on net positive or it may not.

What I would surely support would be an international treaty, signed by as many free societies as possible, that agrees to impose penalties on ANY company that colludes with government censorship. If the Chinese alternative to google can't avail itself of EU/US financial markets, get ad money from companies operating in these environments or otherwise access the free world it would prevent a censor friendly company from rising to offer an alternative to the free speech friendly services. Even better it would provide the best kind of pressure, internal demands by corporations who want to make money, on places like China to relax their censoring laws so their companies can compete in the world market.

Not to mention the fact that an international treaty like this would be more resistant to things like the US-Saudi friendship.

Re:I'm confused

[Mike1024]

Ok ... someone please elxplain, because I don't get it. [...] Doing internet business in communist and other countries [...] is bad. [...] Pouring billions of dollars into their economy via manufacturing [...] is good (See: China).

I think the idea is doing business in oppressive countries isn't intrinsically bad, but actually acting to help with the oppression [bbc.co.uk] is bad.

To use an emotive example, if I sold a million dollars worth of paper clips to nazi germany, that would be OK, but if I sold a million dollars worth of gas chambers to nazi germany, that would be immoral - even if paper clips and gas chambers are equally legal. The morality and the legality are very different things.

With that established, the obvious question is "why is aiding political oppression considered worse than employing people at below minimum wage, given that both are legal in China and illegal in America?". Well, American history has 'freedom, freedom, freedom' written all over it, and politicians love talking all about freedom and the idea of making it universal (see also: Iraq), but minimum wages are a fairly recent (and slightly socialist-sounding) innovation which some people don't even support, and differences in living costs and suchlike make a global minimum wage an odd-sounding idea.

Just my $0.02,

Michael

Re:FCPA, anyone?

[KDR_11k]

Err, sorry, I don't follow this logic... American companies' ability to bend China's oppressive laws should contribute to, rather than detriment from the freedom of ordinary Chinese...

However it decreases the freedom of the country as a whole to make its own laws on subjects their culture might disagree with the US on. Imagine the EU decided to make it illegal for companies to do business in areas where capital punishment exists. Different people, different cultures, different laws. By attempting to interfere with the laws in other countries you create a lot of negative sentiment, the kind that political leaders use to make people fly planes into skyscrapers.

Re:I'm confused

[justchris]

just don't buy the whole "dump buckets of money on them and suddenly they'll convert to capitalism" theory. I'm more of a realist that thinks the moment that labor/manufacturing costs increase in China, the corps will simply switch to the next super-cheap manufacturing workforce (which is pretty much how it ended up in China - Korea and Pakistan were costing more).

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.

At that point, they're too expensive for us to keep doing business there, but they're already far enough along that they're starting their own industries that compete with ours (see Korea and India) and we move on to a cheaper country.

At some point we'll run out of really cheap countries, and have to move on to sorta cheap countries, and eventually, it'll be cheaper to manufacture in the US, so we'll have to bring the industry back here, until it becomes too expensive here again. It's an endless, but somewhat beneficial, cycle.