Framing Censorship



Recently, Microsoft’s Bill Gates stated that in the end Internet censorship will not work. He suggested that resistance to Internet censorship will be “driven by business requirements” because “[r]estrictions on free speech will curtail business activity, and so commercial forces will work against censorship.” This is interesting because on one hand companies such as Microsoft along with Google and Yahoo! are already censoring their products, particularly search engines geared for the Chinese market. Microsoft has in fact decreased the level of transparency regarding the censorship of their Chinese search engine — they are moving further away from challenging censorship. On the other hand, Yahoo! has been asking the U.S. government to help free the Chinese dissidents it helped imprison and Gates’ comments seem to echo Google’s argument that censorship should be treated as a barrier to trade. Google has been lobbying the U.S. government on this issue and a resolution has recently passed in the European Parliament that is being interpreted as a a way to treat Internet censorship as a trade barrier. The EU resolution:

Calls on the Commission to specifically deal with all restrictions on the provision of Internet and information society services imported by European companies in third countries as part of its external trade policy and to regard all unnecessary limitations on the provision of those services as constituting trade barriers;

These developments are interesting because Internet censorship is almost exclusively framed within the realm of human rights, particularly Article 19 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) which state:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 19 of the ICCPR includes a provision for the restriction of the right to freedom of expression as does Article 29 of the UDHR which states:

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

The interaction between freedom and restriction has made its way into the area of internet governance — if we can call it that. For example, in ICANN discussion on expanding gTLDs this interaction is quite prominent:

The string evaluation process must not infringe the applicant’s freedom of expression rights that are protected under internationally recognized principles of law.

Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.

It is often under the rubric of morality and public order and/or national security that Internet censorship is framed by those who seek its implementation or seek to justify its ongoing practice. The practice of “filtering” — the technical means of blocking online content — is growing. Increasingly, it is not the practice of filtering that is being challenged, the debate is about what content is being filtered. In other words, how the practice of filtering is being framed is the location where ideas about censorship are being contested. China, for example, justifies its extensive Internet filtering and surveillance systems by “stressing repeatedly that Chinese Internet minders abide strictly by laws and regulations that in some cases have been modeled on American and European statutes.” Chinese official Liu Zhengrong told the New York Times:

“If you study the main international practices in this regard you will find that China is basically in compliance with the international norm,” he said. “The main purposes and methods of implementing our laws are basically the same.”

With specific reference to surveillance, Liu noted:

“It is clear that any country’s legal authorities closely monitor the spread of illegal information,” he said. “We have noted that the U.S. is doing a good job on this front.”

The efforts by Google to frame Internet censorship as a trade barrier can be seen as an entrance into this contest of ideas. Such a framing has interesting potential consequences. First, it removes of reduces the moral component of human rights that anti-censorship activists have so heavily relied on. Making less money rather than protecting human rights because of the driving argument. But while international human rights agreements have little-to-no enforcement mechanisms trade agreements usually have quite explicit means through which disputes can be settled and decisions enforced. Since censorship often takes place in an environment with minimal, if any, transparency and accountability the resistance to censorship focuses on challenging these practices.

These range from research projects designed to document and expose current censorship practices, to legal challenges to the development and use of technologies. Combined, these efforts seek to challenge the norms surrounding the practice of filtering, change the policies of governments and ISPs and empower users to protect their privacy and exercise the right of free expression online.

Does framing censorship in terms of trade undercut the normative moral foundation of human rights based arguments or does it represent a means to an end, another tactic in the toolbox for anti-censorship activists? What are the consequences of linking Internet censorship and regimes that deal with trade barriers, particularly when this effort is lead by corporations, corporations that are already complicit in Internet censorship?

There have been past efforts to tie human rights to trade. The most notable case, especially relevant in terms of the efforts by Google to lobby the U.S. government to treat censorship as a trade barrier, concerned human rights and the most favoured nation (MFN) status afforded to China. In 1994 Bill Clinton extended China’s MFN status stating:

I am moving, therefore, to delink human rights from the annual extension of Most Favored Nation trading status for China. That linkage has been constructive during the past year, but I believe, based on our aggressive contacts with the Chinese in the past several months, that we have reached the end of the usefulness of that policy

The de-linking of trade and human rights has been characterized as a victory for China (Lynch 2002) and signals that re-linking the two in the context of censorship may be more difficult than it appears. However, in China, the United Nations, and Human Rights Ann Kent suggests that a major factor in the de-linking was that “the business community in particular opposed the linkage” (Kent 1999:72). The combination of China’s resistance and corporate lobbying which Robert Dreyfuss suggests was “led by Boeing, Motorola, Caterpillar, AT&T, and the American International Group (AIG)” eventually succeeded in pressuring the U.S. to de-link trade and human rights.

Underpinning this strategy is what John Garver calls China’s “negative instruments of leverage” (Deng and Wang 2005:225). In China Rising, edited by Deng and Wang, Garver suggests that China preferred to do without U.S. economic cooperation rather than capitulate to threats on human rights issues. This same strategy appears to be at play in terms of Internet censorship. China blocked Google’s search engine and news site entirely. Both of these Google services now censor results for users in China and full access has been restored. To be fair, Microsoft, Yahoo! and others also censor many of their services targeted for the Chinese market, Google has in may ways been the most transparent and demonstrated leadership in this area. Google has publicly engaged with their controversial decision to censor and has made the choice not to introduce services such as email. Yahoo!, which has long been censoring its search engine, does provide email services and has been complicit in the imprisonment of Chinese dissidents as a result. Microsoft initially followed Google’s lead but has since reduced its level of transparency. All three are involved in the effort to develop an industry code of conduct to guide the behaviour of corporations when faced with laws that interfere with human rights. While these companies have taken steps, albeit small ones, towards confronting censorship the extent of their resolve is unclear especially considering that full blocking is always an option that China has. Moreover, China may even have an incentive to block these companies as doing so privileges their domestic competitors. In the past, China has redirected users to domestic search engines when blocking foreign hosted ones.

Unfortunately, I don’t have much in the way of answers. In fact, I am left with questions: what are the consequences of creating a norm of filtering in which objections only concern the content targeted and not the practice itself? China, with the help of U.S. business, has manged to de-link trade and human rights in the past, does the fact that business is now favouring the link make a difference given their money and lobbying experience?? How will such a framing affect the prospect of enforcement that has escaped international human rights commitments in the past but been arguably successful in the arena of trade? Does the shift from framing censorship as a human rights violation to a trade barrier undermine the normative moral efforts of human rights organizations? Or does it enhance it? What are the prospects for success when China can just block these services wholesale as it has done in the past? Finally, is this just a distraction from the real issue — the complicity of these corporations in Internet censorship in China?

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