Internet censorship as a trade barrier: a look at the WTO consistency of the great firewall in the wake of the China-Google dispute.

Author:Liu, Cynthia

TABLE OF CONTENTS I. INTRODUCTION II. CHINA'S TOOLBOX OF INTERNET CONTROLS A. Filtering or Blocking through the Great Firewall B. Deletion and Removal of Content through Self-Censorship C. The Green Dam Controversy D. Government Licensing of Websites E. Localized Disconnection and Restriction III. INTERNET CENSORSHIP AND THE MULTILATERAL TRADING SYSTEM A. Does GATT or GATS Apply? B. Applying GATT to Internet Censorship 1. National Treatment in GATT Article III:4 a. Like Products b. Laws, Regulations, or Requirements Affecting Internal Sale, Offering for Sale, Purchase, Transportation, Distribution, or Use c. Less Favorable Treatment 2. Non-Tariff Barriers Generally Prohibited by GATT Article XI:1 3. The Public Morals Exception: GATT Article XX(a) a. Necessary to Protect Public Morals? b. Article XX Chapeau C. Applying GATS to Internet Censorship 1. Interpreting China's Online Services Commitments in its GATS Schedule 2. China's Market Access and National Treatment Commitments for Online Services: GATS Articles XVI and XVII 3. Lack of Transparency: GATS Articles III:1 and VI. 4. The Public Morals Exception: GATS Article XIV(a) IV. OVERALL IMPLICATIONS OF PURSUING A 'WTO STRATEGY V. THE WTO's USE OF THE TECHNOLOGY NEUTRALITY PRINCIPLE AND AN EVOLUTIONARY APPROACH: STRIVING TO KEEP UP WITH CHANGING TIMES I. INTRODUCTION

On January 12, 2010, Google surprised the world by announcing that it may end its four-year long presence in China after discovering an attack on its corporate infrastructure originating from within the country. (1) Computer hackers had conducted highly sophisticated cyber-attacks on the Gmail accounts of Chinese human rights activists and had targeted at least twenty other large companies from diverse sectors. (2) In response, the Internet giant declared that it would stop censoring search results in China, abruptly shifting from its past approach in which it largely complied with censorship laws requiring it to block politically and socially sensitive topics. (3) For its part, the Chinese government has repeatedly denied involvement in the cyber-attacks, has launched raids on hacker training websites, and has even discussed the possibility of enacting tough, new anti-hacking legislation. (4) Ultimately, Google's negotiations with China over the extent of its future compliance with censorship laws proved fruitless, and the company announced on March 22, 2010 that it would close its Internet search service in China ( and begin rerouting Chinese users to its uncensored search engine in Hong Kong. (5)

This unprecedented turn of events was sure to provoke powerful reactions. Having made clear throughout the ultimately failed negotiations with Google that self-censorship was a non-negotiable legal requirement, the Chinese government condemned the Internet company for breaking the promises it made when it first entered the Chinese market. (6) Conversely, Google has garnered praise from the general American public and human rights organizations for finally stepping up to China and prioritizing basic freedoms over corporate profits. (7) The fact that Google ultimately bowed out, however, casts significant doubt on the argument that Internet companies, even when censored, can bring more information to Chinese citizens and help loosen the government's controls over the web. (8) Google's inability to ethically and successfully continue its search engine operations in China has come to symbolize the worsening business climate for foreign corporations there; businesses are both burdened by government restrictions and left increasingly at a disadvantage compared to favored home-grown companies. (9) The question of how best to engage

China over its censorship policies therefore must take into account not only the human rights dimension but also the economic impact of restricting a vast population's access to the rapidly-growing Internet. China has now surpassed the United States as having more Internet users than any country in the world, with the figure reaching 338 million in June 2009. (10) Indeed, because of its accessibility and Flexibility, the Internet has become a significant source of challenge to China's information control regime, enabling citizens to organize protests, expose corruption among local officials, and oppose government policies. (11) The use of the Internet to expose personal information about the private lives of individuals has become a cause for concern among Chinese government officials. (12) During the past year, numerous governmental figures were fined, fired, or even imprisoned as a result of their corrupt practices or illegal activities being exposed on the Internet. (13)

Since the middle of the decade, bulletin board systems (BBS) and blogs have burst onto the online scene, providing forums for freer (and often anonymous) discussion, expression of opinion, and political discourse. (14) One study of Chinese blogs found that 61% presented "critical" opinions of government, corporations, and public figures, while 36% expressed "pluralist," or two or more different, perspectives. (15) Even when the government has responded by requiring BBS participants to register or provide identification, blogs have continued to surge in popularity and, in combination with texting and emailing, have enabled netizens to generally keep "one step ahead of the censors." (16)

Due to these trends, American Internet company executives have argued that their companies' entries into the Chinese market will bring greater connectivity and freedom of expression to the local population, despite the repressive Chinese regime. (17) However, evidence indicates that China not only is adapting to the Internet but actually is pioneering a new kind of "networked authoritarianism," whereby a nondemocratic government is able to stay in power and repress basic freedoms while simultaneously promoting Internet and mobile phone use. (18) According to the Dui Hua Foundation, (19) in 2008 arrests and indictments on charges of "endangering state security" more than doubled for the second time in three years, and the upward trend is expected to continue. (20) China is utilizing new, flexible methods (ironically, now made possible through the Internet) to control information. The information control regime manipulates online speech and suppresses citizen dissent by targeting certain types of Internet speech effectively enough to prevent widespread organized protest and reform movements. (21) For example, in addition to quashing politically sensitive speech, the Chinese government has utilized the Internet as a tool for propaganda and "thought work" by publicizing its version of a story first. (22) and employing commentators to "guide" public opinion. (23) As a result, the executives who had pushed the benefits of bringing the Internet to China have themselves found it increasingly difficult to justify their corporate complicity with the censorship regime. (24)

For the past two decades, successive U.S. administrations have developed a diverse array of tactics and programs aimed at promoting democracy and human rights in China, especially in response to the new issues posed by Internet censorship. (25) The U.S. government has provided funding for programs that help strengthen the rule of law, civil society, and government accountability. (26) It has also supported U.S.-based non-profit organizations and Internet companies that monitor human rights conditions in China. (27) However, many experts believe these efforts, in addition to diplomatic engagement with China, have failed to trigger any real political change. (28) It is in this broader context that Google's recent public dispute with the Chinese government has led to discussions about alternative, more innovative routes to take to challenge China's pervasive Internet censorship.

On the day that Google announced it was considering shutting down its Chinese site, Google's dominant rival in China Baidu, saw its Nasdaq stock rise $64.01, or 16.6%. (29) China's third- and fourth-place search engines, Sina and Sohu, also witnessed their stocks increase 4.9% and 6.2%, respectively. (30) Even before the Google incident, the permanent blocking of YouTube in March 2009 saw homegrown competitors Youku and Tudou gain market share. (31) The blocking of Facebook in July 2009 allowed Chinese copies like Ren Ren Wang and Kai Xin Wang to enjoy enormous success. (32) Chinese Internet giant Sina launched a nearly identical microblogging service less than two months after Twitter was cut off. (33) After photo-sharing website Flickr was blocked, its Chinese clone Bababian grew steadily by using foreign technology without having to face foreign competition. (34)

Google's latest moves shed light on the economic reality that foreign tech-related businesses face in China and have spawned much discussion about the possibility that China's Internet censorship is inconsistent with WTO rules. (35) Because Chinese censors have always been able to block specific videos or photos without needing to shut down entire sites, some observers have concluded that China's recent foreign Internet purge is simply business-over-politics "firewall protectionism." (36) At the behest of the California-based First Amendment Coalition, recent news articles, and scholarship, the Office of the U.S. Trade Representative (USTR) is examining China's Internet restrictions and contemplating whether a WTO challenge is in order. (37) Bringing a WTO case over China's Internet censorship could have far-reaching implications for human rights protection and Internet governance. A WTO case would also test the Dispute Settlement Body's (DSB) ability to keep abreast of the times and its willingness to rule on issues that are arguably tangential to free trade.

This paper will assess the WTO-consistency of China's Internet censorship activities. Part II will describe the key features of China's Internet...

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