China: Can Trade Agreements Curb Internet Censosrhip?

The California First Amendment Coalition (CFAC) hopes that free trade laws can be used to end internet censorship in China. Lawyers from King & Spalding petitioned the Office of the U.S. Trade Representative on behalf of the group to file a complaint with the World Trade Organization against what CFAC describes as "the most pervasive and systematic system of censorship in the world." In an interview posted on Business Wire, CFAC’s executive director Peter Scheer noted that internet censorship, though fundamentally an issue of free speech, creates market barriers against international trade that could violate China’s obligations under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). 

Until recently, international human rights standards and domestic laws of the host country have provided the basis for internet censorship challenges.  Articles 17 and 19 of The International Covenant on Civil and Political Rights, for instance, protect the right to privacy and freedom of speech, respectively.  In China, Article 35 of the Constitution says that citizens "enjoy freedom of speech, the the press, of assembly, of association, of procession and of demonstration" - rights that appear inconsistent with other legal provisions in that country banning "material that harms the prosperity and interests of the state" and ''material that spreads rumors, disturbs social order, or undermines social stability."  The WTO has not yet determined whether any of the relevant trade agreements cover internet communications.

Yesterday's opinion piece in the International Herald Tribune criticized global tech firms for cooperating with the Chinese government, noting that Google and Microsoft both censor searches run from China, while Cisco provides the system hardware used to monitor internet use.  Last year, Yahoo provided e-mail information that helped Beijing police identify two pro-democracy journalists later sentenced to 10 years in prison for "leaking state secrets abroad."  One of those journalists was Shi Tao, an editor of Contemporary Trade News, who posted parts of a directive from China's Propaganda Department that instructed journalists how to cover the 15th anniversary of the Tiananmen Square Massacre.  Shi was awarded the International Press Freedom Award in 2005.   

After US internet firms acknowledged their cooperation with countries like China before a congressional subcommittee last year, Representative Chris Smith (R-NJ) introduced H.R. 275, The Global Online Freedom Act of 2007, this past January.  A prior version of the bill passed a House subcommittee last year but the session ended before it could be brought to a full vote.  The bill would make it a crime for internet companies to turn over personally identifying information to regimes that use the information to stifle dissent.  In an recent interview, Smith accused companies like Cisco, Microsoft and Yahoo of working "hand in glove with dictators" and "knowingly - and willingly - enabling the repression of millions of people."  On Monday, the House Committee on Energy and Commerce agreed to extend consideration of the bill until January 16, 2008. 

Globally, internet censorship is on the rise.  A report from The OpenNet Initiative released in May 2007 concluded that "censorship is expanding into new countries and becoming more sophisticated over time."  Burma, Iran, Syria, Tunisia and Vietnam topped the list of nations engaged in "substantial politically-motivated filtering."  In total, 21 countries out of 45 surveyed imposed some form of filtering or censorship of internet access. 

Google has since joined efforts to convince US Trade officials to consider internet restrictions as a barrier to trade.  Speaking to ABC News in June, Google's Director of Public Policy and Government Affairs Andrew McLaughlin described internet censorship as "the No. 1 barrier to trade that we face."  Still, the policy of major internet companies, including Google, is to continue to comply with the demands of nations where they do business, maintaining that it is better for the people in those countries to have censored internet access than no access at all.

I suspect that support for open markets by major internet companies is motived more by profit than politics or human rights concerns, but the debate raises a tricky question about the strategies most likely to succeed in promoting global communications access.  Even human rights activists sometimes prefer a carrots over sticks strategy as a way to encourage policy changes from repressive regimes, though in this case both Human Rights Watch and Reporters Without Borders seem to endorse the opposite approach. 

This post is open for comment.  Do you agree with the policy that some is better than none, or should tech firms withdraw from countries that censor internet information?

-Kathleen A. Bergin

----------------------------------------------------

Ironic post-script: Our colleague Donald Clarke's Chinese Law Prof Blog is blocked from China.  So far as I can tell, this one is not . . . yet.