Testing the jurisdictional limits of the international investment regime: the blocking of social media and Internet censorship.

AuthorDardenne, Matthew R.

It was late Saturday, June 13, 2009 when the rumbling of a stolen election began moving through the Twittersphere. (1) On June 12th, many thought the Iranian presidential election between Mahmoud Ahmadinejad and Mir Hossein Mousavi would be close. (2) To the contrary, Ahmadinejad won a sweeping victory that defied the polls and was quickly dismissed as a fraud. (3) In reaction, the Iranian people took to the streets and riots lasted long into the next week. (4)

Despite the outrage, few traditional media outlets reported the story of Iran's growing Green Revolution. (5) Instead, the protests were mostly reported by text, tweets, and through other social media. (6) Tehran's authoritarian regime responded by taking down the telephone system supporting SMS text messaging and blocking other cellular networks. Iran's highly computer-literate society, including bloggers and hackers, fought back, kept channels open and spread the word about functioning proxy portals. (7)

The immediacy of the reports was stunning and gripping. Twitter lists constantly gave updates and provided links to photos and videos, which acutely demonstrated the developing turmoil. (8) Photos and videos were posted on Twitter and Youtube. The video footage that emerged was "raw, unedited and dramatic"; (9) it captured images of "young people throwing rocks, scenes of burning tires and vehicles, and riot police delivering savage beatings." (10) Others showed protestors peacefully shouting "Marg bar dictator!" (Death to the dictator!) (11)

Ultimately, the scene turned violent as paramilitary Basij and police rooftop snipers opened fire. Reports of deaths tweeted out, and within minutes, a gruesome picture circulated of a man lying face-up in the street, blood covering his face and pooled around his head. Other photos followed of other people bloodied or dead. Soon there were reports of nonstop shooting and opposition leaders arrested. A crackdown was under way. (12)

While Tehran was not able to completely choke off access to text and Twitter, its abuse of its citizens coupled with the crackdown on avenues of organization through social media and telecommunications brought the short lived Green Revolution to an end. The first digital revolution was over before it began.

A year before Iran was cracking down on access to Twitter and text messaging, U.S. Ambassador to Tunisia, Robert F. Godec, was providing embarrassing details of the opulent life styles of Zine El Abidine Ben Ali, the President of Tunisia, and his family to his superiors in the United States. (13) In one of the cables, Ambassador Godec referred to the Tunisian president and his siblings as "The Family" and likened them to the mafia who ran Tunisia's economy. (14) These cables were part of the tens of thousands of pages leaked to Wikileaks that were then disclosed in November 2010 online and to various media outlets. Ultimately, the cable was read and shared via Facebook and Twitter (15) throughout Tunisia's significant online population. (16)

Like the stolen election in Iran, these cables acted as digital tinder ready to be ignited by the rage of an oppressed people. A few weeks later, the spark was literally lit, igniting a revolution across the Arab world. Mohammed Bouazizi, a street vendor, was harassed by a policewoman for failing to have a license to sell vegetables from his street cart. (17) When local government authorities failed to intervene, he set himself ablaze outside the governmental compound in a desperate act of self-immolation. (18) His act was caught on film, streamed across the web, and shared on Facebook and Twitter. Bouazizi's single act of protest, combined with the leaked documents, fueled an entire movement across the Arab world. (19)

As the revolt blazed across Tunisia, both Egypt and Libya moved quickly to block access to the internet, social media, and telephone service. In Libya, Muammar Gaddafi's government blocked access to several internet websites. Access to Facebook was cut as protests developed in the Libyan capital. (20) Libya also cut access to Al Jazeera for its reporting on the unrest. (21)

"On January 28, 2011, Egypt's President, Hosni Mubarak, took the drastic and unprecedented step of shutting off the Internet for five days across [Egypt]." (22) Mubarak took these steps to stop the coordination of protestors on Facebook and Twitter. (23) Representatives from both Facebook and Twitter later confirmed access to their sites was being blocked. (24) Like Iran, Egypt also disrupted text messaging and Blackberry services. (25)

As the Arab Revolution spread, several more countries blocked access to social media sites, internet search engines, and news sites. Since the Arab Spring, Facebook has been either totally or partially blocked in Algeria, Tunisia, Libya, Egypt, Saudi Arabia, Iran, and Pakistan. (26) Twitter was partially blocked in Algeria, Egypt, Iran and Pakistan. YouTube remains completely blocked in Turkey and is partially blocked in Iran and Pakistan. (27) Arab states are not alone; many other nations block social media including, most notably, China, Indonesia, Vietnam, Myanmar, Uzbekistan, Cameroon, and even, to some extent, Mexico. (28)

The power of social media during the Arab Revolution should not be overblown; "digital media didn't oust Hosni Mubarak." (29) "[O]veremphasizing the role of information technology diminishes the personal risks that individual protesters took in heading out onto the streets to face tear gas and bullets." (30) At the same time, the role of social media and the internet at large during the Arab Spring cannot be denied. Newsweek called the protest in Egypt a "Facebook Revolt." (31) The images of the self-immolation of Bouazizi circulated in "cyberspace before being broadcast by Middle East media corporation al-Jazeera." (32) U.S. Ambassador to the United Nations, Susan Rice, captured the potential of social media when she commented "the power of social networking to channel and champion public sentiment, has been more evident in the past few weeks than ever before." (33)

The effects of blocking social media and other websites raise serious questions related to the "congenital tension" ever present between the recognition and enforcement of state sovereignty and the protection of human rights and fundamental freedoms. (34) On the one hand, states have a sovereign prerogative to protect their territorial integrity and independence from destabilizing forces like armed intervention, whether of an external or internal nature, and mass protests that threaten the life of the nation. (35) On the other hand, states also have an obligation to protect human rights such as the right to hold opinions, the freedom of expression and speech, the right to receive and transmit information, the right to hold and transmit ideas of all kinds in writing and print through any media of a person's choice, and the right to peaceful assembly. (36)

Today, this tension is made increasingly more complex by a web of overlapping international obligations stemming, not only from human rights law, but also from modern trade and investment regimes: many developing states blocking access to social media and the internet at large are members of the World Trade Organization ("WTO") and are often parties to treaties protecting investment as a means to improve economic conditions and to gain access to the ever expanding global market place. As a result, when states move to block and censure material on the internet as an exercise of their sovereign rights, they not only trample their human rights obligations, but they may also be in violation of other international obligations created by the international trade and investment regimes.

As goods, services, telecommunications, and other unrealized future business ventures move to and develop because of the internet, and as the internet becomes subject to increasing regulation and censorship, (37) sophisticated e-commerce business interests will no doubt turn to the protections afforded by international law to protect their interests. (38) When business interests, such as social media, overlap with and touch upon individuals' human rights, trade and investment protections may actually serve as a collateral method to enforce human rights obligations. Trends in international e-commerce are already pointing to this result.

For instance, in 2010 Google shocked the world when, in the face of China's increased censorship, it ended its nascent presence in China and began routing Chinese users to its uncensored search engine in Hong Kong. (39) Essentially the dispute between China and Google arose when Google discovered a highly sophisticated cyber attack originating from China on the Gmail email accounts of Chinese human rights activists. (40) In response, Google decided it would no longer censor Chinese internet searches as required by Chinese law. When negotiations broke down between China and Google over the dispute, Google stunningly announced it would leave China and reroute Chinese searches through Hong Kong. (41)

Similarly, "Go Daddy.com, the world's largest domain name registration company, announced on March 24, 2010 that it would no longer sell .cn domain names, citing similar fears of hacking and an unwillingness to continue to comply with stringent government requirements." (42) In its announcement, "Go Daddy.com specifically referenced the heightened requirements for documenting and verifying the identity of domain name registrants and what it perceived to be increased threats against individual security as reasons for discontinuing the offering of new .cn domain names." (43)

Cynthia Liu makes a compelling argument that a case could be brought through the auspices of the World Trade Organization's Dispute Settlement Body ("DSB") under the General Agreement on Tariffs and Trade ("GATT") and the General Agreement on Trade in Services ("GATS") to protect against such censorship...

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