My written testimony for the hearings today in the United States House
of Representatives Committee on International Relations, Subcommittee
on Africa, Global Human Rights and International Operations and
Subcommittee on Asia and the Pacific, is here.
Today in “Internet, Law and Politics,” a course at HLS, students are debating whether or not the Dean Campaign’s online campaigning activities changed campaigning for ever. One side has posted here and the other is here.
Please comment online, or, if you read this between 4:45 – 6:45 EST on Monday, Feb. 13, send me mail at jpalfrey AT law.harvard.edu and I will read them to the class during the debate. Many thanks.
SUBCOMMITTEE ON AFRICA, GLOBAL HUMAN RIGHTS AND
INTERNATIONAL OPERATIONS
and
SUBCOMMITTEE ON ASIA AND THE PACIFIC
Christopher H. Smith, New Jersey, Chairman
James A. Leach, Iowa, Chairman
February 8, 2006
TO: MEMBERS OF THE COMMITTEE ON INTERNATIONAL RELATIONS
You are respectfully requested to attend the following OPEN joint
hearing of the Subcommittee on Africa, Global Human Rights and
International Operations and the Subcommittee on Asia and the Pacific,
to be held in Room 2172 of the Rayburn House Office Building:
DATE:
Wednesday, February 15, 2006
TIME:
10:00 a.m.
SUBJECT: The Internet in China: A Tool for Freedom or Suppression?
WITNESSES: Panel I
Mr. James Keith
Senior Advisor for China and Mongolia
Bureau of East Asian and Pacific Affairs
U.S. Department of State
The Honorable David Gross
Deputy Assistant Secretary
Bureau of Economic and Business Affairs
U.S. Department of State
Panel II
Mr. Michael Callahan
General Counsel
Yahoo! Inc.
Mr. Jack Krumholtz
Managing Director of Federal Government
Affairs and
Associate General
Counsel
Microsoft Corporation
Mr. Elliot Schrage
Vice President for Corporate Communications
and Public Affairs
Google, Inc.
Mr. Mark Chandler
Vice President and General Counsel
Cisco Systems, Inc.
Panel III
Ms. Libby Liu
President
Radio Free Asia
Mr. Xiao Qiang
Director
China Internet Project
University of California-Berkeley
Ms. Lucie Morillon
Washington Representative
Reporters Without Borders
Mr. Harry Wu
Publisher
China Information Center
NOTE: Witnesses may be added or changed.
By Direction of the Chairman
The Committee on International Relations seeks to make its facilities
accessible to persons with disabilities. If you are in need of
special accommodations, please call 202/225-5021 at least four business
days in advance of the event, whenever practicable. Questions
with regard to special accommodations in general (including
availability of Committee materials in alternative formats and
assistive listening devices) may be directed to the Committee as noted
above.
Fred Wilson has an excellent blog post
on the topic of online syndication and the future of digital
entertainment. He’s been nailing this issue for a long time
now. This is great free consulting for the content publishing
industry:
“Here’s the bottom line. In the digital medium, the content should be
syndicated as broadly as possible. If iTunes wants to charge $1.99 for
the shows, let them. If WRAL wants to stream the shows with ads
(and download them for a small fee), let them.
CBS should do the same on its website. I think they should offer
RSS feeds of every show in their lineup. The service should be
either subscription driven or ad supported or ideally offer both
options.
This is the digital medium we are talking about. Bits are
bits. They are going to get widely distributed anyway.
That’s how this medium works. If CBS understands that, they’ll
forget about exclusivity, which doesn’t work online anyway, and make
their content ubiquitious, monetize it with whatever business models
their distribution partners want to use, take a cut of the action, and
they should do the same themselves on their websites and then sit back
and watch the digital medium work its magic.”
I missed it earlier in the day (and didn’t see it in the hearing room),
but Andrew McLaughlin (disclosure: long-time Berkman fellow and friend) has posted to the Google blog a statement about their offering in China. The news in the statement, to me, is their recommended next steps, with which I broadly agree:
“1. Expanded Dialogue and Outreach. For more than a year, Google has
been actively engaged in discussion and debate about China with a wide
range of individuals and organizations both inside and outside of
China, including technologists, businesspeople, government officials,
academic experts, writers, analysts, journalists, activists, and
bloggers. We aim to expand these dialogues as our activities in China
evolve, in order to improve our understanding, refine our approach, and
operate with openness.
2. Voluntary Industry Action. Google supports the idea of Internet
industry action to define common principles to guide technology firms’
practices in countries that restrict access to information. Together
with colleagues at other leading Internet companies, we are actively
exploring the potential for Internet industry guidelines, not only for
China but for all countries in which Internet content is subjected to
governmental restrictions. Such guidelines might encompass, for
example, disclosure to users, and reporting about governmental
restrictions and the measures taken in response to them.
3. Government-to-Government Dialogue. In addition to common action by
Internet companies, there is an important role for the United States
government to address, in the context of its bilateral
government-to-government relationships, the larger issues of free
expression and open communication. For example, as a U.S.-based company
that deals primarily in information, we have urged the United States
government to treat censorship as a barrier to trade.”
The first strikes me as mostly fluff, though certainly right, so far as
it goes. The second and third both seem to be sound, and
potentially meaningful, next steps. On the third one, I think the
US should stop worrying about ICANN as an international Internet
governance issue and start treating censorship and surveillance as the
key international issue in our field.
Mister Chairman, Distinguished Members of the Caucus:
My name is John Palfrey. Thank you for the leadership of this Caucus
in drawing attention to the relationship between the Internet and human
rights in China and for the opportunity to speak with you today.
I am here today as a member of a team of researchers, called the OpenNet Initiative,
that has been conducting empirical testing of China’s Internet
filtering regime for the past several years and monitoring the
involvement of United States companies in that regime. My
colleagues Ronald Deibert of the University of Toronto, Rafal
Rohozinski of the Advanced Network Research Group of the Cambridge
Security Program, University of Cambridge, and Jonathan Zittrain of the
University of Oxford and Harvard Law School, are also principal authors
of the OpenNet Initiative’s work. We have also studied in depth
the filtering regimes of states in the Middle East, the former Soviet
republics, and parts of East Asia. I am joined today by my
colleague Nart Villeneuve, the Director of Technical Research at the
Citizen Lab at the University of Toronto.
Today the Caucus considers human rights with respect to the Internet in
China. I applaud your efforts to shine a spotlight on this
important matter. I hope that your efforts, and those of your
colleagues, will lead to new ways to work together to achieve our
common goal of global economic development that is consistent with the
values that we hold dear as Americans and as citizens of our
increasingly connected world.
While China seeks to grow its economy through use of new technologies,
the Chinese state’s actions suggest a deep fear of the sometimes
disruptive effects of free and open communications made possible by the
Internet – particularly on topics of human rights. This fear has
led the Chinese government to create the world’s most sophisticated
Internet filtering regime. One of the topics commonly blocked is
information related to human rights, including the website of the
respected NGO, Human Rights Watch.
Increasingly, the Chinese state has turned to private companies that
control parts of the middle of the network to assist in its filtering
and surveillance practices. These companies find themselves today
in an awkward, if not untenable, position on this issue of ethics and
human rights. Individual companies can be isolated and pressured
by the filtering state and undercut by competitors willing to comply
with surveillance and filtering requests.
United States technology companies, which have led the Internet
revolution from the start and have brought us many of its extraordinary
benefits, are now in the uncomfortable posture of helping to carry out
Internet filtering practices. These companies also find
themselves under pressure to turn over sensitive personal information
to law enforcement officials, in circumstances where these companies
would not turn over the information here in the United States.
Private technology companies cannot today participate in these
marketplaces without consequences based upon their actions. Human
rights are implicated. Companies in this position have an
obligation to figure out what it means to act ethically when they are
doing business in a place like China. They also have a
self-interest in having a common code of practice to which they can
point and rely upon in resisting abusive filtering and surveillance
requests. The United States Congress is right to pay attention.
Despite what may seem to be a common set of problems, United States
technology companies should not be lumped into a single category when
it comes to their participation in Internet filtering and surveillance
practices. Plainly, there are different issues at stake when a
company is making technology products that are designed to carry
out filtering regimes in other countries around the world as compared
to a company that is making general-purpose technology that happens to
be used to filter or spy on Internet-based communications. Surely
there are differences between the company that offers a limited online
service in China and collects no personally identifiable data as
compared to a company that not only collects large amounts of such data
but turns it over prior to a formal legal action. Surely we
would distinguish between a company that folds at the first hint of
controversy and the company that draws lines in the sand and puts its
license to do business in that state in harm’s way. There are
ethical lines to be drawn between various kinds of technology companies
that are doing business in China. These lines will help to shape
what we believe to be good public policy on this matter.
In terms of how to move forward, there are several options.
First, and most appealing as a next step, is for the United States
information technology industry, perhaps with other players from states
that face this problem, to work together to try to sort out a common
ethical pathway. I, and some of my colleagues at the Berkman
Center at Harvard Law School, believe that we should explore the
development of a set of principles that would guide businesses that are
offering services in states that filter extensively and spy on Internet
conversations and give them a base of support for resisting abusive
surveillance and filtering requests.
There are a number of things that United States technology companies
can do to make their actions more transparent to users, more protective
of civil liberties, and more accountable to all of us. Yesterday,
Microsoft announced a policy with respect to content hosted on their
popular MSN Spaces blog software in China, which is very much a step in
the right direction.
The Chinese state’s filtering systems lack transparency in nearly every
sense. In addition to limiting what Chinese citizens can come to
know about the censorship process, this lack of transparency
complicates the task of monitoring its filtering regime. Most
important, this lack of transparency contributes mightily to the
climate of self-censorship. Chinese officials very rarely admit
that the state censors Internet content. Officials do not
disclose at any level of granularity what material it targets through
the filtering regime. United States technology companies can help
on this transparency front by how they carry out their blocking.
Second, it may be the case that the Congress could develop a corollary
to the Foreign Corrupt Practices Act that would guide – and tie the
hands of – United States technology companies doing business under
these circumstances. Such a step is risky on many levels and
should be taken only with great care, and only if our technology
industry is unable to work out the problem on its own.
Third, the United States ought to consider making this human rights
issue a matter of foreign trade policy or other forms of international
negotiation. In the Internet context, the United States ought to
stop worrying about the future of the Internet Corporation for Assigned
Names and Numbers and should make Internet filtering and surveillance
the key Internet governance issue on the world stage.
The best outcome is not to ban the involvement of United States
technology companies in China outright. The best outcome would be
for our technology companies to be able to compete in these
marketplaces – with their best-in-the-world offerings – without having
to compromise our values and without having to become complicit in
Internet censorship and surveillance.
In conclusion, we ought to see this issue not as a crisis, but rather
as an opportunity. Internet technologies, developed by the likes
of Microsoft, Yahoo!, Google, Cisco, and many others, are doing
terrific things for democracy around the world. At the same time,
the People’s Republic of China’s Internet filtering and surveillance
regime has the greatest effect on the freedom of expression, and on the
efforts of human rights workers, of any filtering regime throughout the
world.
We need to come together to figure out how to ensure that these
companies and their technologies are indeed a force for greater
democratic participation, not pushing against it. These companies
should be, and can be, the darlings of the human rights community for
what they can do for human rights in places like China. It
doesn’t happen to be the case today, but I have no doubt that we can
get to that point through collaboration that is grounded in honesty,
openness, and transparency.
Written Statement of John G. Palfrey,
Jr., Clinical Professor of Law & Executive Director, Berkman Center
for Internet & Society, Harvard Law School at the Congressional
Human Rights Caucus Members’ Briefing on the subject of human rights
and the Internet in China, February 1, 2006.
I’m at the Berkman Center feverishly trying to finish testimony for the Congressional Human Rights Caucus hearing tomorow in DC. I’m just starting to consider Microsoft’s announcement of its new policy on blogging, censorship and surveillance.
At a minimum, I am pleased to see the transparency of their decision-making, the commitment to a process internally before replying to a state’s request for information, the commitment to making content blocked in one state accessible in other states, the commitment to transparency to users about what’s being blocked, and the clear message that this is not just about China. Perhaps most of all, their call for a broad-based dialogue on how to manage this problem is right on, in my view.
Here are the operative segments, cut-and-pasted from the announcement:
“* Explicit standards for protecting content access: Microsoft will remove access to blog content only when it receives a legally binding notice from the government indicating that the material violates local laws, or if the content violates MSN’s terms of use.
* Maintaining global access: Microsoft will remove access to content only in the country issuing the order. When blog content is blocked due to restrictions based on local laws, the rest of the world will continue to have access. This is a new capability Microsoft is implementing in the MSN Spaces infrastructure.
* Transparent user notification: When local laws require the company to block access to certain content, Microsoft will ensure that users know why that content was blocked, by notifying them that access has been limited due to a government restriction.”
Will a policy of this sort make any difference? Well, it’s surely just a first step, but I think it is a positive step. So much will become clear if we ever find out how Microsoft acts when pushed on matters by a repressive regime. Will these policies render Microsoft’s stance more protective of civil liberties — in appropriate contexts — than that of another company, perhaps one based in that regime? Entirely possible, but so much turns on the application of the policy on the ground when trouble starts.
* * *
Not specific to this announcement, but prompted in part by puzzling over it: one theme that I think ought to emerge is the distinction between various contexts. Microsoft’s announcement is somewhat helpful in this parsing process, though of course does not provide all the answers.
Start with the presumption (though I know one might take issue with this starting point) that a United States company is competing in the marketplace of another state that has an extensive filtering and surveillance regime in place. (For examples, see the OpenNet Initiative’s country studies.) Consider whether we think the ethics are, or may be, different in the following scenarios, when a US company:
1) blocks access to content published by a citizen of another state at the explicit request of that other state,
a) which blocking disallows the content to be viewed by another citizen of that state
b) which blocking disallows the content to be viewed by those requesting to see it from states other than the home state of the author (such as the United States);
2) blocks access to content published by a citizen of another state at the implicit request (i.e., “you should generally block things of this nature”) of that other state
a) which blocking disallows the content to be viewed by another citizen of that state
b) which blocking disallows the content to be viewed by those requesting to see it from states other than the home state of the author (such as the United States);
3) turns over information about the user of an online service, pursuant to a specific legal notice from another state, when
a) that user is the citizen of another state,
b) that user is the citizen of the United States but acting in the other state;
4) turns over information about the user of an online service, pursuant to an informal request from another state, when
a) that user is the citizen of another state,
b) that user is the citizen of the United States but acting in the other state;
[Does it matter whether the user’s alleged infraction was one that was a crime in the United States, or whether the information is sought because of political speech by that user that would plainly be protected under US law? Whether the state needs the information to save a life, or to carry out a preventive law enforcement act? How can the US company know? What about when the request is to support research on a general policy issue, such as the US DOJ’s request for search engine data, apparently without user-specific data, in the COPA matter?]
5) develops general-use technology that is used in the filtering and surveillance practices of another state; or,
6) develops specific-use filtering and surveillance technologies that are used in such regimes in other states.
There are no doubt many other permutations, but these seem to me to be starting points for parsing out the thorny ethical problems buried here.
We at the OpenNet Initiative have built a search-compare tool
to show what results you get on google.cn as compared to
google.com. Be sure to try out “human rights” and some of the other sample searches we’ve got up there. (Special credits to Nart Villeneuve and Boris Anthony.)
We are enormously grateful to our friends at the MacArthur Foundation for their support, in the form of a $3 million grant, of our next four years on the OpenNet Initiative in its study of filtering and surveillance online.
Alois Stutzer and Bruno S. Frey (University of Zurich) have a new paper out in the Review of Law & Economics called “Making International Organizations More Democratic.” Likely of interest to the watchers of ICANN, WSIS, and related institutionsin the Internet space (what I think of as the NetDialogue crowd!).
The abstract: “World governance today is characterized by international
organizations lacking democratic legitimacy and control by the citizens
they claim to represent. They are also criticized for being
inefficient. This leads to violent protests and to NGOs having great
influence. To address these problems, we propose international
governance based on the democratic idea of citizen participation: All
citizens of the member countries of international organizations have
the potential right to participate in the decision-making of
international organizations via initiatives, referendums and recalls.
In order to reduce transaction costs, a representative group of
citizens is randomly selected who can actually exercise their
participation rights.”
Provocative, anyway, and worth hearing them out.
John Palfrey 