Wednesday, February 15, 2006

Don't regulate the search engines, except in one small way 

Later today, the House Subcommittee on Africa, Global Human Rights and International Operations [Who knew those three things went together? - ed.] will cross-examine executives from four Internet technology companies (Google, Yahoo, Microsoft and Cisco Systems) about the censoring of online searches in China. This has become something of a cause among bloggers, particularly right-wing bloggers, who have come to think of the Internet's speed and transparency as just the ticket for subverting nasty regimes from Tehran to Beijing.

By all means, let's hold the hearings, and let's find out exactly what these companies are doing. Free world consumers of these services and investors in these companies need to know the extent to which Google, Yahoo, Microsoft and so forth are collaborating with authoritarians so that we know why we should stop using Google, Yahoo and Microsoft products lodge a firm protest.

This, however, is a very bad idea:
The subcommittee's chairman, Representative Christopher H. Smith, Republican of New Jersey, plans to introduce legislation by week's end that would restrict an Internet company's ability to censor or filter basic political or religious terms — even if that puts the company at odds with local laws in the countries where it now operates.

This is a bad idea for a number of reasons, not the least of which is that it will hurt, rather than help, the very people it is trying to support. But I'll get back to that in a bit.

I would, however, strongly support legislation that required Internet companies to disclose, with particularity, precisely the filters that they apply country-by-country, and whether those filters were deployed as a requirement of local law (and a citation to that law), under informal pressure from local officials, or sua sponte to meet the requirements of the audience (one can imagine that a company might in certain markets choose to censor the phrase "Prophet Mohammed" in proximity to this or that unflattering phrase).

Direct regulation of the Internet companies would force American companies to choose between defying the United States and pulling out of oppressive countries around the world. No American Internet executive would run the risk of prosecution or other liabiliity in his home country, so we can assume that Smith's law, if not gutted by some loophole, would force the withdrawal of the big search engines from oppressive countries. This will drive the development of less transparent and more heavily censored local search systems. That would hurt dissidents in China and elsewhere, because they would then be confined to government-run or financed systems that truly limit their access to the world's information.

There are other reasons to oppose Smith's law, including that it restricts the free speech rights of the Internet companies. Does the United States government tell wire services what news to report? What words they may or may not use? What stories to highlight on their home pages? Of course not, yet it proposes to abolish editorial discretion at Internet companies in the cause of twisting China's arm.*

Finally, there are fairly severe "slippery slope" concerns. What are "basic political or religious terms"? If we can order an Internet company not to censor terms, can we then order a company to censor other terms? If these companies do not enjoy a First Amendment right to make their own editorial judgments in the first instance, why would they in the second?

A disclosure rule, in contrast, avoids virtually all of the deleterious consequences of Smith's direct regulation, and it confers several benefits. First, it tells the world precisely what these countries are afraid of. That is extremely useful information for those of us who believe in the subversion of dictators. Second, it tells the dissidents how to avoid the filters. Third, it gives human rights activists and others who would influence these regimes something specific to complain about. Fourth, it would clarify the extent to which the Internet companies are making decisions required by local law, which is one thing, or to curry favor with local officials, which is another thing entirely.

Sunlight remains the best disinfectant. Let's shine on it on the Internet companies by making them report, in substantially real time, all filters that they apply anywhere. Let's not drive Yahoo, Google and Microsoft from China. That won't be good for anybody.
*I appreciate that the analogy does not hold up perfectly, but it is disingenuous to argue that Smith's bill does not implicate the First Amendment rights of Yahoo, Google and Microsoft.


By Anonymous Anonymous, at Wed Feb 15, 09:35:00 AM:

I only have one problem with your counterproposal, but it's a big one: What's to prevent China from responding by ordering Google et al not to comply with the new law if they want to keep doing business in China? (Remember, suppressing information is just half of the point of political censorship. The other half is maintaining the illusion that the apparent lack of dissent is not the result of censorship, but simply because there's no dissent to be found.) Once that happens, everyone involved is back to square one.  

By Blogger TigerHawk, at Wed Feb 15, 10:52:00 AM:


I did think of that, but I think it would be much harder for China to enforce that law. There really is no basis in international law for one country to prevent a corporation from reporting information required by its own country. China would have a lot of trouble under its trade agreements if it tried to do that, I think.

Think of it this way: One of the weaknesses in Smith's bill is that it tries to impose American law on other jurisdictions through the market power of American Internet technology companies. (Admittedly, my proposal also does that, but passively, rather than invasively, which is a big difference. We impose these passive reporting requirements, such as with Sarbanes-Oxley, alll the time.) Stridently extra-territorial legislation is not popular in the world.

But, if China retaliated by demanding that the Internet firms keep secret the filters that they are deploying, it would also be guilty of trying to export its laws. I think China would have a much tougher time banning the disclosure of the filters than it does demanding the filters in the first place.  

By Anonymous Anonymous, at Wed Feb 15, 11:20:00 AM:

Good point, TH... but if China senses that they have the U.S. over a barrel economically and/or geopolitically, I can see them throwing their weight around in this way, international law be damned. Besides, if this does escalate into an international dispute, do you really expect the so-called "international community" to take the American side against China? Remember, the selfsame "international community" is still trying to wrest control of the Internet's root servers away from the U.S. (a development China would surely favor).  

By Blogger Cardinalpark, at Wed Feb 15, 12:14:00 PM:

I would say we and China have each other over a barrel. They finance us to buy their goods and services. That's called interdependence. But whie the press would have you believe they have us by the nuts, I would argue that is not the case -- just as it wasn't with Japan in 1989 or Germany or whomever the press wanted to say was better than us...  

By Blogger Lanky_Bastard, at Wed Feb 15, 01:17:00 PM:

I'll agree with Tiger.

It's also worth keeping in mind that censorship is not the worst transgression a search provider can make...especially not censorship with a disclaimer. Informancy is the worst transgression. China would pay for info on people's searches, and within China it would be legal, maybe even mandatory. I don't know what we can do to protect people and information providers from governments, but it's worth doing.  

By Blogger Sluggo, at Wed Feb 15, 02:32:00 PM:

Typical legislator mentality, though. I'm going to regulate your ability to regulate. To a man with a committee everything looks like a bill.  

By Anonymous Anonymous, at Wed Feb 15, 04:31:00 PM:

I would say we and China have each other over a barrel. They finance us to buy their goods and services. That's called interdependence. But whie the press would have you believe they have us by the nuts, I would argue that is not the case -- just as it wasn't with Japan in 1989 or Germany or whomever the press wanted to say was better than us...

In the end it's not what you, I, the press or even Washington believes that really counts here - it's what Beijing believes. If they think they have us by the nuts they're likely to act accordingly, and if it escalates to the international level I frankly don't see any other nation except maybe Israel willing to take America's side in such a dispute - not because of anti-Americanism but merely because alienating the nation with the world's largest population and fastest-growing economy is Very Bad For Business(TM).  

By Blogger Unknown, at Wed Feb 15, 05:04:00 PM:

Your suggestion is good, Tigerhawk, but my own preference would be that companies that facilitate censorship shouldn't be eligible for government contracts (and their products shouldn't be eligible through third parties, either).  

By Blogger Dan Kauffman, at Thu Feb 16, 02:16:00 AM:

I must agree with Tiger Hawk Trashing the First Amendment is no way to perserve Liberty and Freedom.

Google is a private enterprise they can adjust the services they offer any way they want,

I DO support public awareness of their censorship and support of Totalitarian and Oppresive Regimes.

As for "Informancy is the worst transgression. China would pay for info on people's searches, and within China it would be legal, maybe even mandatory."

How do you know they are not doing that? Because they say so?

As I recall they USED to say that they would never censor internet searches.

That should tell you how good their word is.
And your word is not like a bone, once you break it, it never grows back stronger.  

By Anonymous Anonymous, at Mon Feb 20, 08:39:00 PM:

But is Google ONLY censoring China?

"This video is not playable in your country."


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