Breaching the Great Firewall of China: Congress Overreaches in Attacking Chinese Internet Censorship

• Publication year: 2007

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 2WINTER 2008

COMMENTS

Breaching the Great Firewall of China: Congress Overreaches in Attacking Chinese Internet Censorship

Miriam D. D 'Jaen(fn*)

I. Introduction

Hear no evil, see no evil, speak no evil.(fn1) According to one interpretation, this ancient adage solemnly warns that those who are exposed to wrongdoing are more likely to engage in it themselves. Today, the People's Republic of China (PRC) embraces a similar philosophy for blotting out evil, as evidenced by its steady crackdown on Internet content.(fn2) In fact, since President Hu Jintao came to power in 2003, Chinese government authorities have taken many steps to control and suppress political and religious speech on the Internet.(fn3) The government's efforts have resulted in the world's most advanced system of Internet censorship and surveillance, supported by tens of thousands of employees and extensive corporate and private sector cooperation, including that of several U.S. technology companies.(fn4)

But whatever happened to do no evil? Or more ironically, what about don't be evil,(fn5) the bold company motto of Google, one U.S. company that actively participates in Chinese Internet censorship?(fn6) In January 2006, Google launched Google.cn, a censored search engine for its Chinese users.(fn7) The site filters thousands of keywords and web addresses,(fn8) including politically-sensitive content related to Tiananmen Square, Tibet, and the government-banned spiritual movement Falun Gong.(fn9)

Unfortunately, Google is not the only U.S. Internet company to compromise its users' freedom of expression in order to tap into the lucrative Chinese market.(fn10) Yahoo! and Microsoft have also created Chinese-version search engines and engage in active self-censorship.(fn11) In addition, Yahoo! has provided Chinese authorities with private, confidential information about its users, resulting in the convictions of at least two Chinese journalists.(fn12)

All three companies defend their actions by insisting that, despite the constraints, they are helping to increase access to information in China.(fn13) Their collective justification is that limited information is better than no information at all.(fn14) In response to criticism, Yahoo! rationalized that it "can make more of a difference by having even a limited presence and growing our influence, than ... by not operating in a particular country at all."(fn15) Microsoft and Google have adopted a similar line of defense.(fn16) In addition, the companies insist they have no choice but to comply with local laws and regulations if they are to operate in the Chinese market.(fn17)

These arguments, however, have failed to shield Google, Microsoft, and Yahoo! from intense criticism, both at home and abroad. Human rights advocates, the U.S. government, the European Union, and numerous nongovernmental organizations have blasted the companies for being complicit and caving to the PRC's demands.(fn18) These concerns eventually prompted the U.S. House of Representatives to hold a joint committee hearing at which top executives from the corporations were called to testify about their business practices in China.(fn19) The following day, Representative Christopher Smith, a New Jersey Republican, introduced the Global Online Freedom Act of 2006.(fn20) While this legislation expired at the end of the congressional session, Rep. Smith re-introduced the bill the following year as the Global Online Freedom Act of 2007 (the Act).(fn21)

The Act promotes freedom of expression on the Internet by prohibiting U.S. businesses from cooperating with officials in Internet-restricting countries.(fn22) While the Act should be commended for imposing a higher standard of ethical business practices on U.S. corporations, there are significant problems with curing China's censorship policies by imposing liability on U.S. Internet companies. The standards and recommendations proposed by Congress within the Act correspond with an inherently American conception of freedom of expression. Thus, the Act imposes our domestic standards, rooted in the First Amendment, on states with very different political ideologies. A better alternative for addressing China's crackdown on free speech would be to create an industry-wide code of conduct.

Part II of this Comment discusses the legal and technological infrastructures employed by the Chinese government to regulate Internet content and activity. Part III examines the complicity of U.S. corporations and possible means of holding them accountable. Part IV discusses the specific provisions of the Act, and Part V assesses whether it amounts to an extraterritorial application of the First Amendment. Part VI addresses policy reasons that weigh against the Act and, finally, Part VII offers alternative solutions and recommendations.

II. China's Legal and Technological

ROADBLOCKS TO FREE SPEECH

The PRC relies on a combination of technology and legislation to sustain its comprehensive censorship and surveillance program.(fn23) As the number of Internet users in China skyrockets,(fn24) and as these users develop expertise in accessing information online, the Chinese government devotes extraordinary resources to maintain a nationwide firewall.(fn25)

Dubbed "The Great Firewall of China," this advanced filtering system enables Chinese officials to regulate the movement of information between the global Internet and the Chinese Internet.(fn26) Forbidden keywords and websites are filtered at the router level and then again by sophisticated software that blocks selected portions of sites and emails according to keyword searches.(fn27)

In addition to erecting technological barriers, the PRC regulates Internet activity through a complex web of local, regional, and national laws.(fn28) In 1996, the highest authority of state administration, the State Council, passed the "Interim Provisions Governing the Management of Computer Information Networks in the People's Republic of China Connecting to the International Network,"(fn29) marking the PRC's first critical step toward controlling the Internet.(fn30) Two years later, it passed the "Provisions for the Implementation of the Interim Provisions Governing the Management of Computer Information Networks in the People's Republic of China," mandating restricted networks and government approval of Internet service providers (ISPs).(fn31)

Since 1996, content and use regulation has only intensified. In September 2005, the PRC adopted the "Provisions on the Administration of Internet News Information Services" (News Provisions).(fn32) Article 4 of the News Provisions creates the legal authority for the government to supervise news websites.(fn33) Article 19 prohibits reporting positions or information that the government finds embarrassing or too candid in its discussion of social problems.(fn34) The News Provisions employ a variety of control methods, including registration requirements, external government supervision, broad-based content restrictions, and administrative penalties.(fn35)

In 2002, the PRC passed yet another set of regulations, imposing strict safety standards and requirements for Internet businesses. Owners of cybercafes are now required to install Internet Police 110 software, which blocks access to more than 500,000 banned websites.(fn36) Moreover, the government requires ISPs to self-censor their sites or risk being shut down.(fn37) If an ISP wants to maintain its business license to operate in China, it is expected to block politically objectionable content.(fn38) The government, however, refuses to publish an official blacklist of sites and keywords to be censored.(fn39) Rather, it resorts to vague, far-reaching language, prohibiting content that "might harm the state's honor, cause ethnic oppression, spread rumors, disrupt social stability, spread pornography, undermine state religious policy, or preach the beliefs of evil cults."(fn40) The result is that companies are forced to engage in a game of political mind-reading, intuiting government objections in advance. This works out well for the PRC; by having private companies assume responsibility for censorship activities, the government effectively outsources the otherwise unmanageable task of monitoring emails, news stories, blogs, and chat postings.(fn41)

III. Corporate Complicity

Google, Microsoft, and Yahoo! contend that they have no choice but to comply with Chinese laws if they are to operate within the market.(fn42) Corporate complicity, however, carries a heavy price: the violation of internationally recognized human rights-most notably, the right to freedom of expression.

A. Yahoo!

Yahoo! was the first major U.S. Internet company to enter the Chinese market, rolling out a Chinese-language search engine and establishing a Beijing office in 1999.(fn43) Three years later, Yahoo! submitted to government pressure and signed the "Public Pledge of Self-Discipline and Professional Ethics for Chinese Internet Industry," which commits signatories to "energetic efforts to carry forward the rich cultural tradition of the Chinese nation and the ethical norms of the socialist cultural civilization" by observing all state industry regulations.(fn44) In particular, signatories vow to refrain "from producing, posting, or disseminating pernicious...