August 14, 2007 6:33 AM PDT
Perspective: Companies need guidance to face censors abroad
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You've got the usual things to worry about. You need to set up subsidiaries or joint ventures, hire local management, figure out how to scale your infrastructure, think through tax implications, and so forth.
There's also a more unusual challenge that you may not be able to ignore. If you are in the business of Internet or telecommunications services, you are going to be asked to censor the information you provide to people. And you'll probably be asked to turn over information about your users to the local police, rarely with anything approaching what we'd call "due process" in the United States.
There are typical requirements when operating almost anywhere--even liberal democracies identify information to be removed, such as that which infringes copyright or meets some test of obscenity. They require businesses to help identify users at times, and some impose blanket data-retention requirements for these purposes.
But in more authoritarian places like China, the practices have extra bite. The information the government seeks to censor can relate to civic dialogue and freedom. The people they seek to identify might be political dissidents or religious practitioners. Often, the requirements to redact or block will be stated or implied only generally without specific requests for individual cases. That means that your company will have to be prepared to operate in something of a gray zone, trying to divine what the regulators have in mind--and act to censor without explicit orders to do so.
Over the past five years, there has been a steady rise of Internet filtering and surveillance practices. In 2002, only a small handful of countries censored the Internet; the number is more than two dozen in 2007, as our research through the OpenNet Initiative (a consortium of four university teams: the University of Cambridge, Harvard Law School's Berkman Center for Internet & Society, Oxford Internet Institute, and the Citizen Lab of the University of Toronto) has made plain. These countries rely on private enterprise for their control, and some of America's most prominent Internet companies have found trouble trying to follow local law in parts of the Middle East, the former Soviet Union, and East Asia--where censorship and surveillance on the Web is most extensive--against a backdrop of international criticism.
Yahoo has been excoriated--and subjected to a human rights lawsuit--for turning over information to Chinese authorities about a journalist that allegedly led to his arrest and imprisonment. The problem? The jailing was for no crime that a court in Yahoo's home jurisdiction of California could recognize. Human rights activists won't let the world forget Yahoo's role.
Cisco Systems has been attacked for selling the routers and switches that make censorship and surveillance possible. So, too, has Microsoft, for offering a blog service that generates an error rejecting "profanity" when a user includes the word "democracy" in the title of a blog. Google has come under fire for offering a search product in China that omits certain search results compared with what you'd find if you searched from the United States or Western Europe.
Side-by-side comparisons of a Google image search for "Tiananmen Square" in Google.com and Google.cn show the stark results of censorship. Anyone who can see both sets of images, the latter lacking any shots of a person staring down a tank in 1989, is forced to consider what it would be like to live under an authoritarian regime.
This represents two opposing pressures on nearly every corporation whose business involves information technologies. While liberal democracies have so far remained remarkably hands-off as the Internet has matured, the desire of more closed regimes to tap the Internet's economic potential while retaining control of the information space pressures companies to limit the freedoms they can offer many users, with rules that can be contradictory from one jurisdiction to another. And as companies accede, a second pressure arises from perceived betrayal of the values of the company's owners, customers or watchdogs.
What's a corporation to do?
The thorny ethical problem arises when the corporation is asked to do something squarely at odds with the law, norms or ethics of the corporation's home country. Should a search engine agree to censor its search results as a condition of doing business in a new place? Should an e-mail service provider turn over the name of one of its subscribers to the government of a foreign state without knowing what the person is said to have done wrong? Should a blog service provider code its application so as to disallow someone from typing a banned term into a subject line?
Reasonable people disagree as to the best means of resolving these emerging ethical concerns. One might contend that there is no ethical problem here--or, at least, that the ethical problem is nothing new. If an Internet censorship and surveillance regime is entirely legitimate from the perspective of international law and norms, the argument goes, then a private party required to participate in that regime has a fairly easy choice.
Biography
John Palfrey is clinical professor of law at Harvard Law School and executive director of the Berkman Center for Internet & Society. Jonathan Zittrain is professor of Internet governance and regulation at Oxford University and the Jack N. and Lillian R. Berkman Visiting Professor of Entrepreneurial Legal Studies at Harvard Law School.
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