Palfrey Testifies on Complying with Foreign Censorship Laws

An increasing number of American companies are being asked to obey censorship and surveillance laws in China that run contrary to free speech and privacy guarantees in the United States. These companies have been asked to monitor Internet users' activities, to give subscriber information such that the government can monitor users itself, and to release private communications of accused political dissidents.

Faced with such requests, most companies have complied with Chinese laws. In 2005, Yahoo! released the private emails of journalist Shi Tao, emails which eventually led to Mr. Shi's incarceration. In 2006, Microsoft prevented users from creating blog posts with "democracy" in their titles. And today Google limits its search results in China for controversial topics such as the Falun Gong and Tiananmen Square.

Some companies are even profiting from censorship. A newly leaked Powerpoint presentation reveals that Cisco Systems executives saw China's desire to censor the Falun Gong as an opportunity to sell filtering technologies.

Observing that most companies have complied with Chinese law, Congress is considering legislation to force these companies to adhere to American standards of freedom of speech and privacy protection. The Global Online Freedom Act would require that ICT companies operating outside the US not release private user information to governments, except for “legitimate foreign law enforcement purposes” (the Justice Department would decide what constitutes a legitimate purpose)

This May, the Berkman Center's Executive Director, John Palfrey, submitted written congressional testimony to Congress about this and related bills. "At this moment of dynamic change," Prof. Palfrey wrote, "it would be premature to act now with blunt legislation." A legislative approach would simply discourage companies from investing in countries like China, where emerging indigenous ICT companies, less likely to adhere to any privacy and free speech guarantees, would take their place.

Rather, Prof. Palfrey suggested that companies develop a set of standards regarding which censorship and surveillance laws to comply with, and which to fight. Such an effort is already underway. Today the Center for Democracy and Technology, Business for Social Responsibility, the Berkman Center and several ICT firms are working to develop a code of conduct for companies operating in regimes which lack U.S.-style privacy and free speech guarantees. Some initial discussions of this collaboration are available here and here.
This doesn't mean that the government has to stand still as ICT companies regulate themselves. Palfrey suggested that Congress take action on the following:

1. Support research on and awareness of existing censorship practices
2. Fund technologies to promote internet freedom
3. Create regular exchanges between the government, ICT sector, human rights organizations, and academic researchers
4. Provide incentives for companies to participate in this industry-wide code of conduct
5. Lead the way as a government on privacy and freedom of speech
6. Encourage companies to inform users about possible violations to their privacy
7. Consider codifying the code of conduct, once it's developed.

Of course, none of these suggestions are uncontroversial, nor is the industry-wide code of conduct Prof. Palfrey is working to develop. Arvind Ganesan of Human Rights Watch, who testified at the same hearing, argued that:

"A voluntary [industry] initiative will not apply to companies that do not join and it is difficult to see how it will get effectively implemented in countries where the government is very good at dividing and pressuring companies to capitulate to its demands, sometimes in exchange for access to a lucrative market. And most importantly, a voluntary initiative may be least effective in curtailing governments’ efforts to obtain user information about cyberdissidents from companies, because a voluntary effort is not sufficient to stand up against the pressures a government can assert against companies."

You can read the full testimony of Mr. Ganesan here and the testimony of all the witnesses here. You can also track this ongoing debate, and learn more about the industry code of conduct as it develops, here

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