Written remarks at Congressional Human Rights Caucus hearing regarding China today

Mister Chairman, Distinguished Members of the Caucus:
 
My name is John Palfrey.  Thank you for the leadership of this Caucus
in drawing attention to the relationship between the Internet and human
rights in China and for the opportunity to speak with you today. 
I am here today as a member of a team of researchers, called the OpenNet Initiative,
that has been conducting empirical testing of China’s Internet
filtering regime for the past several years and monitoring the
involvement of United States companies in that regime.  My
colleagues Ronald Deibert of the University of Toronto, Rafal
Rohozinski of the Advanced Network Research Group of the Cambridge
Security Program, University of Cambridge, and Jonathan Zittrain of the
University of Oxford and Harvard Law School, are also principal authors
of the OpenNet Initiative’s work.  We have also studied in depth
the filtering regimes of states in the Middle East, the former Soviet
republics, and parts of East Asia.  I am joined today by my
colleague Nart Villeneuve, the Director of Technical Research at the
Citizen Lab at the University of Toronto.  

Today the Caucus considers human rights with respect to the Internet in
China.  I applaud your efforts to shine a spotlight on this
important matter.  I hope that your efforts, and those of your
colleagues, will lead to new ways to work together to achieve our
common goal of global economic development that is consistent with the
values that we hold dear as Americans and as citizens of our
increasingly connected world.

While China seeks to grow its economy through use of new technologies,
the Chinese state’s actions suggest a deep fear of the sometimes
disruptive effects of free and open communications made possible by the
Internet – particularly on topics of human rights.  This fear has
led the Chinese government to create the world’s most sophisticated
Internet filtering regime.  One of the topics commonly blocked is
information related to human rights, including the website of the
respected NGO, Human Rights Watch.  

Increasingly, the Chinese state has turned to private companies that
control parts of the middle of the network to assist in its filtering
and surveillance practices.  These companies find themselves today
in an awkward, if not untenable, position on this issue of ethics and
human rights.  Individual companies can be isolated and pressured
by the filtering state and undercut by competitors willing to comply
with surveillance and filtering requests.  

United States technology companies, which have led the Internet
revolution from the start and have brought us many of its extraordinary
benefits, are now in the uncomfortable posture of helping to carry out
Internet filtering practices.  These companies also find
themselves under pressure to turn over sensitive personal information
to law enforcement officials, in circumstances where these companies
would not turn over the information here in the United States.

Private technology companies cannot today participate in these
marketplaces without consequences based upon their actions.  Human
rights are implicated.  Companies in this position have an
obligation to figure out what it means to act ethically when they are
doing business in a place like China.  They also have a
self-interest in having a common code of practice to which they can
point and rely upon in resisting abusive filtering and surveillance
requests.  The United States Congress is right to pay attention.

Despite what may seem to be a common set of problems, United States
technology companies should not be lumped into a single category when
it comes to their participation in Internet filtering and surveillance
practices.  Plainly, there are different issues at stake when a
company is making technology products that are designed to  carry
out filtering regimes in other countries around the world as compared
to a company that is making general-purpose technology that happens to
be used to filter or spy on Internet-based communications.  Surely
there are differences between the company that offers a limited online
service in China and collects no personally identifiable data as
compared to a company that not only collects large amounts of such data
but turns it over prior to a formal legal action.   Surely we
would distinguish between a company that folds at the first hint of
controversy and the company that draws lines in the sand and puts its
license to do business in that state in harm’s way.  There are
ethical lines to be drawn between various kinds of technology companies
that are doing business in China.  These lines will help to shape
what we believe to be good public policy on this matter.

In terms of how to move forward, there are several options.  

First, and most appealing as a next step, is for the United States
information technology industry, perhaps with other players from states
that face this problem, to work together to try to sort out a common
ethical pathway.  I, and some of my colleagues at the Berkman
Center at Harvard Law School, believe that we should explore the
development of a set of principles that would guide businesses that are
offering services in states that filter extensively and spy on Internet
conversations and give them a base of support for resisting abusive
surveillance and filtering requests.  

There are a number of things that United States technology companies
can do to make their actions more transparent to users, more protective
of civil liberties, and more accountable to all of us.  Yesterday,
Microsoft announced a policy with respect to content hosted on their
popular MSN Spaces blog software in China, which is very much a step in
the right direction.

The Chinese state’s filtering systems lack transparency in nearly every
sense.  In addition to limiting what Chinese citizens can come to
know about the censorship process, this lack of transparency
complicates the task of monitoring its filtering regime.  Most
important, this lack of transparency contributes mightily to the
climate of self-censorship.  Chinese officials very rarely admit
that the state censors Internet content.  Officials do not
disclose at any level of granularity what material it targets through
the filtering regime.  United States technology companies can help
on this transparency front by how they carry out their blocking.

Second, it may be the case that the Congress could develop a corollary
to the Foreign Corrupt Practices Act that would guide – and tie the
hands of – United States technology companies doing business under
these circumstances.  Such a step is risky on many levels and
should be taken only with great care, and only if our technology
industry is unable to work out the problem on its own.

Third, the United States ought to consider making this human rights
issue a matter of foreign trade policy or other forms of international
negotiation.  In the Internet context, the United States ought to
stop worrying about the future of the Internet Corporation for Assigned
Names and Numbers and should make Internet filtering and surveillance
the key Internet governance issue on the world stage.

The best outcome is not to ban the involvement of United States
technology companies in China outright.  The best outcome would be
for our technology companies to be able to compete in these
marketplaces – with their best-in-the-world offerings – without having
to compromise our values and without having to become complicit in
Internet censorship and surveillance.

In conclusion, we ought to see this issue not as a crisis, but rather
as an opportunity.  Internet technologies, developed by the likes
of Microsoft, Yahoo!, Google, Cisco, and many others, are doing
terrific things for democracy around the world.  At the same time,
the People’s Republic of China’s Internet filtering and surveillance
regime has the greatest effect on the freedom of expression, and on the
efforts of human rights workers, of any filtering regime throughout the
world.   

We need to come together to figure out how to ensure that these
companies and their technologies are indeed a force for greater
democratic participation, not pushing against it.  These companies
should be, and can be, the darlings of the human rights community for
what they can do for human rights in places like China.  It
doesn’t happen to be the case today, but I have no doubt that we can
get to that point through collaboration that is grounded in honesty,
openness, and transparency.

Written Statement of John G. Palfrey,
Jr., Clinical Professor of Law & Executive Director, Berkman Center
for Internet & Society, Harvard Law School at the Congressional
Human Rights Caucus Members’ Briefing on the subject of human rights
and the Internet in China, February 1, 2006.

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