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U.S.: Put Pressure on Internet Companies to Uphold Freedom of Expression

Testimony before the Congressional Human Rights Caucus

Members' Briefing: Human Rights and the Internet - The People's Republic of China

Testimony of Tom Malinowski
Washington Advocacy Director
Human Rights Watch

Mr. Chairman, thank you for having me and Human Rights Watch here today and for your leadership on this issue.

Let me begin by laying out some general principles.

First, the Internet clearly has the potential to be a liberating force in repressive societies. In China, millions of people have used the Internet to discuss previously taboo topics, to criticize their leaders in ways that would have been impossible just a few years before, and to obtain information their government would rather they not have. That is why the Chinese government is so worried about this medium. That is why it is cracking down.

Second, the Internet gets its liberating potential from two basic qualities – it provides free and instantaneous access to information and ideas, and it allows people to communicate anonymously. But as China is showing, these qualities can be taken away. And once you take away users’ anonymity and censor, for political ends, the content they can see, the Internet is no longer a liberating medium. In fact, it can become a tool of repression.

Therefore, it is not enough for Internet companies to argue that their mere presence in countries like China will lead to political openness. It is illogical for companies to say they are expanding the boundaries of freedom in China if they strip their product of the very qualities that make it a force for greater freedom. These companies must protect the integrity of the product they are providing, or that product will no longer be the Internet as we know it, and will no longer have the impact on society we all wish to see.

Third, the stakes here are much greater than the future of freedom in China. China is already exporting technology for monitoring the Internet to other repressive governments – Zimbabwe, for example. And such governments in every part of the world are now watching to see if China can bend Internet providers to its will. If China succeeds, other countries will insist on the same degree of compliance, and the companies will have no standing to refuse them. We will have two Internets, one for open societies, and one for closed societies. The whole vision of a world wide web, which breaks down barriers and empowers people to shape their destiny, will be gone. Instead, in the 21st Century, we will have a virtual Iron Curtain dividing the democratic and undemocratic worlds.

What is happening in China?

Internet censorship within China is not a stand-alone policy. It is part of an overall strategy to limit the flow of information within China to what the leadership wants China’s citizens to know about their own country and about the world.

Most recently, on January 25, 2006, when mainland authorities shut down the outspoken Bingdian Weekly, authorities succinctly articulated China’s approach to information control. A notice of the closure by the Publicity Department of the Chinese Communist Party Central Committee criticized the editor of Bingdian and senior staff at China Youth Daily, its parent publication, for “articles incompatible with the mainstream ideology.” Although no particular articles were cited in the notice, earlier criticism had been directed at the weekly’s coverage of stories questioning textbook interpretations of sensitive historical events, one going back over one hundred years, another some sixty years.

As the number of Internet users in China has skyrocketed, from 22.5 million (or 1.7 percent of the population) in 2000, to 111 million (or some 8 percent of the population) at the end of 2005, as the diversity of information available through the Internet has mushroomed, and as users have developed expertise in accessing it, the Chinese leadership has devoted extraordinary resources to erecting its Great Firewall.

Even before the recent news about Google censoring its search engine, Internet users already had to contend with a long list of censorship measures including:

  • a sophisticated filtering system;
  • the banning of unregistered personal domestic websites;
  • the September 2005 “Rules on the Administration of Internet News Information Services,” which prohibited the distribution of uncensored news stories or commentary through Internet portals, e-mail or SMS, in the interest of “serving socialism,” upholding the interests of the State,” and “correctly guiding public opinion.”
  • limits on who could access university Internet message boards;
  • the tracking of Internet café users through real-name registration and use of ID numbers;
  • blocked websites; and
  • the threat of imprisonment for those engaged in dissident speech on the Internet.

But one lesson of China’s experience with the Internet is that repressive governments cannot exercise full control over this medium without the willing cooperation of the private sector companies that are leaders in the industry. Bill Clinton had a point when he said that controlling the Internet was like trying to “nail jello to the wall.” It just isn’t possible – unless you persuade the companies that make jello to change their recipe. And that’s what China has been doing.

China sought and received the cooperation of global Internet companies in limiting access to information. In mid-2002, Yahoo! voluntarily signed China’s “Public Pledge on Self-discipline for the Chinese Internet Industry.” Signing the vaguely worded pledge, sponsored by the government-affiliated Internet Society of China, required that Yahoo! “[r]efrain from producing, posting or disseminating harmful information that may jeopardize state security and disrupt social stability, contravene laws and regulations and spread superstition and obscenity,” that it “monitor the information publicized by users on websites according to law and remove the harmful information promptly,” and “[r]efrain from establishing links to Web sites that contain harmful information so as to ensure that the content of network information is lawful and healthy.” Definitions of key terms were not provided.

Human Rights Watch warned at the time that Yahoo! was in danger of becoming an “information gatekeeper.” We tried to persuade Yahoo! that it should bring industry leaders together to resist Chinese blandishments and to remain information gateways. Nothing came of the initiative. Rather, during the past three-and-a-half years, as competition among global Internet companies sharpened, China was able to capitalize on Yahoo’s decision to sign on to censorship.

In 2005, Yahoo! provided information that helped Chinese authorities identify Shi Tao, a Chinese journalist, who allegedly “leaked state secrets abroad.” He was sentenced to a ten-year prison term in April 2005; the “secret” he allegedly leaked consisted of information about government guidelines for reporting on the June 2004 fifteenth anniversary commemoration of the Tiananmen massacre.

In May 2005, Microsoft’s new joint-venture portal users found they could not use the Chinese words for democracy, freedom, human rights, or demonstration to mark personal websites created through MSN Spaces, a free online blog service. The returned error message announced, “this item contains forbidden speech.” MSN Spaces is operated by Shanghai MSN Network Communications Technology, in which Microsoft owns a 50 percent stake.

Google reportedly resisted the Chinese government initially, but in November 2004 it began to provide an abridged Chinese service of Google News, using some 1,000 news sites, but excluding from its list of links those from publications the Chinese government found objectionable, such as the Voice of America.

In August 2005, Google partnered with Baidu, another Chinese giant, but it continued to lose market share. Finally on January 24, 2006, Google announced it had installed a server within China to speed service and increase its competitiveness within the Chinese market. It also announced that it would censor certain search results on its search engine that the government finds objectionable, such as those relating to human rights. Google said that it would tell users that the information was being censored, but did not contest the underlying censorship. The company has so far said that it won’t provide G-mail or other services that might cause it to run into a Yahoo!-type situation. However, given the compromises Google has already made, the huge market pressure on companies to go into China, and the lack of any laws prohibiting companies from working hand in glove with the Chinese police state, there is no reason to believe that it will permanently refuse to offer those services in China.

How do the companies justify their actions?

The Internet companies have made several arguments to defend their compromises in China. I would like to address a few of them, Mr. Chairman.

The first, and most common argument is: “We have to follow Chinese law if we do business in China.”

My first response to that argument is that the law on this question isn’t as straightforward as the companies would like us to believe. Yes, Chinese domestic law forbids dissident speech. But China is also a signatory to the International Covenant on Civil and Political Rights (ICCPR), and is thus obliged to uphold the principles embodied in that document. Censoring information flouts the ICCPR’s article 19, which states in part that, “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 helping the Chinese government enforce its domestic rules, the Internet companies are also complicit in a clear violation of international law.

That should be reason enough for these companies to challenge the Chinese government when it imposes these dictates – to use the emerging Chinese legal system to fight the Chinese government’s rules, to lobby Chinese government officials to relax them, to ask the U.S. and other governments to intervene on their behalf. But as far as we know, the companies have not challenged Chinese rules at all. They have simply gone along.

Of course, when these same companies have been threatened with government restrictions on content and privacy in the United States and Europe, they have not been timid about fighting back. As we all know, Google has refused a U.S. request to turn over information about user searches. Internet companies have strongly opposed a proposed European Union law over content. And good for them. I just wish they were half as brave in dealing with dictatorships as they are in dealing with democracies.

Mr. Chairman, if you or other members of Congress introduce legislation regulating what Internet companies can do in places like China, I am sure that lobbyists from Yahoo!, Google and Microsoft will be in your offices using every means of persuasion at their disposal to persuade you to change your mind. And that is their right. But I hope you will ask them why they are making greater efforts to lobby the U.S. government in defense of censorship than they ever made to lobby the Chinese government in opposition to censorship.

Of course, changing the Chinese government’s policies will be hard. But if companies put up a united front and are supported by the U.S. government, they will be in a very strong position. In 1999, for example, technology companies stood up to the Chinese government when it tried to clamp down on the commercial use of cryptography to maintain the confidentiality of corporate communications. Coordinated efforts by various companies and trade agencies forced the Chinese government to drop its demand that encryption codes be turned over.

And if such concerted action does not work, I would still argue that there are moral lines companies should not cross, even if it means they cannot do business in China. No company should ever, under any circumstances, turn over the name of a political dissident to a repressive state. And no company with a stake in the free flow of information should censor information to satisfy the political dictates of a dictatorship. In practice, I think that Internet companies will be able to stay in China while upholding these principles, if they make a concerted effort. But if I’m wrong, these principles cannot simply be sacrificed. At some point, a moral bottom line must take precedence.

A second argument made by some companies is that censorship is acceptable if Chinese internet users are honestly told what is happening. This is the argument that Google is making, because the Chinese Google site includes a disclaimer at the bottom informing users that some information is being censored.

But is Google really being honest and open about what it is doing? Google is not disclosing a crucial piece of information – it is not saying how its censorship system works. It is not telling users what material – what sites, words, and ideas -- the Chinese government is telling it to block. Perhaps that is because Google is embarrassed to admit that for such a system to work, the company will have to maintain a close and ongoing relationship with the Chinese security apparatus. This is because it will not be enough for the Chinese government to give Google a list of forbidden web sites and search terms just once. If that were the case and our Human Rights Watch site, for example, were excluded from Google search results in China, we could simply set up a mirror site that is not excluded. So it’s safe to assume that the Chinese security services will be constantly updating and adding to the list of forbidden sites and terms it requires Google to block.

And down the road, I would expect the Chinese government to demand that Google take down even the small disclaimer it currently places on its site. After making far bigger compromises and establishing a close working relationship with the Chinese state, will Google say no to that? And what if the Chinese government then asks Google to take a step further, and turn over the individualized search records of its users? The compromises this company has made and the relationships it is forging, none of which are transparent, create a very slippery slope.

A third argument that companies, including Google, make is that the sites they remove from their search engine results are in any case blocked by the Chinese government, and thus that their Chinese users are not being denied anything to which they previously had access. But this is not entirely true. If you punch in the words “human rights” on Google, you will find links to literally millions of websites, from the home pages of NGOs, to government sites, to newspapers, universities, and blogs in scores of countries around the world. If Google filters by keyword as well as by web addresses, it may filter out web pages that would have escaped a site-block by the Chinese authorities.

Moreover, technologically savvy Internet users in China do have ways of getting around government restrictions on specific Internet sites. But if their search engine is censored, they may never learn that a particular site even exists, and the odds they can overcome the Great Firewall go down considerably. That is why Google is doing the Chinese government a great favor – something it could not have done for itself.

A final argument American companies make is that if they don’t enter the China market, someone else will and the results will be the same. That is the same argument some companies made in opposing legislation that forbade them bribing foreign officials – “if we don’t do it, someone else will.” But the Congress didn’t buy it. Moreover, the U.S. government then got together with its partners in the industrialized world (through the OECD) and negotiated a global compact against bribery to which dozens of countries now subscribe. There is no reason why the same could not be done here.

Moreover, I’m not so sure that if U.S. companies were to stay out of China (a step that, once again, I do not think will even be necessary), others would just fill the vacuum. Yes, there are local internet providers in China. (Interestingly, the Chinese companies may not even always be as restrictive as the U.S. providers now are! For example, if you type "Radio Free Asia" in, there is no link on the first three pages to an RFA website. But if you type it in, a domestic Chinese search engine, the first link is a direct link to Radio Free Europe/Radio Liberty --

But let’s be realistic – the major American companies are the giants in this industry. When you want to look for information on the Internet, you “Google” it. When you want to manipulate it, you do it on Windows. These companies compete with each other, but they do not have major external competitors. They have enormous bargaining power with any government that wants to be part of the information age. They simply haven’t tried to use that power collectively with the Chinese government, because it has been more convenient to cut individual deals and comply with whatever rules Beijing imposes.

What should the Congress do?

The ideal solution to this problem would be a concerted, collective effort by the Internet companies to stand up to Chinese pressure. But if the companies are not willing to defend their principles on their own, then the pressure they are facing from the Chinese government should be matched by pressure from democratic governments, starting with the United States.

To begin with, Congress should pass legislation akin to the Foreign Corrupt Practices Act that would forbid U.S. companies from turning over names or other information that would identify specific individuals to foreign governments, when that information is sought to regulate or punish free expression that is protected by international law (i.e., political speech). There needs to be a clear bottom line here. Ratting out dissidents to dictatorships is repugnant behavior. No American company should ever, under any circumstances, feel that such a thing can be justified. It should be absolutely prohibited by U.S. law.

Congress should also act to discourage Internet companies from censoring content at the request of repressive governments. At the very least, such companies should be denied taxpayer financing for their foreign operations from OPIC and EximBank. You might consider whether they should be banned from federal procurement.

Finally, the Congress and the administration should encourage Internet and information technology companies to develop an industry wide code of conduct governing their behavior in repressive societies. Such a code would strengthen the companies’ leverage in dealing with the Chinese and other similar governments, since it would allow them to present a united front. Similar initiatives have been pursued in other industries – a few years ago, for example, several of the world's leading oil and mining companies developed with nongovernmental organizations and the U.S. and British governments a set of principles to make their operations consistent with international human rights standards. If such old economy companies as Exxon and BP can agree on their responsibilities in difficult environments like Nigeria and Angola, surely the champions of free speech in the new economy can do the same in China, in the Middle East and everywhere free expression is threatened.

That we even have to suggest such a thing to companies that came into being with a professed commitment to bucking the status quo and to standing up for freedom is sad, Mr. Chairman.

I say that as a representative of an organization that was founded in the 1970s to stand up for human rights behind the Iron Curtain, with funding and support that came in part from people like Robert Bernstein, who made their money in the book publishing industry. Now, American publishing houses are not charities; they exist to make money, like any other company. But they are also in a business that depends on the free exchange of ideas. Their first thought in those days was not “How can we ingratiate ourselves with the Soviet Union so that we can sell books there?” It was, “how can we support free expression so that in the long run everyone has free access to the product we sell?” That was the right thing to do. And it was the sensible thing to do.

I have hoped that the Internet companies would recognize that as well. But as they have not, the time has come for the Congress to say that some principles are not optional.

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