Testimony to the US House of Representatives Committee on International Relations

COMMITTEE ON INTERNATIONAL RELATIONS
UNITED STATES HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON AFRICA, GLOBAL HUMAN RIGHTS AND
INTERNATIONAL OPERATIONS
and
SUBCOMMITTEE ON ASIA AND THE PACIFIC
February 15, 2006

Written Statement of:

John G. Palfrey, Jr.
Clinical Professor of Law & Executive Director
Berkman Center for Internet & Society, Harvard Law School

Mister Chairman, Distinguished Members of the Committee:
 
I applaud the Committee’s leadership in drawing attention to the
relationship between the Internet and human rights in China and the
several dozen other states around the world that censor and practice
surveillance of Internet-based communications.  I submit this
written testimony 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.  We have
studied the case of China in particular, as it is much the most
extensive online censorship regime in the world.  

The United States Congress, human rights activists, academics, and
United States technology companies all ought to share a common goal: to
promote the growth of the global, public, unitary, network of networks
that is the Internet and to foster the many positive effects that this
network brings with it.  The spread of Internet technologies that
operate on the “end-to-end principle” – or on the basis of “network
neutrality,” which means that Internet traffic is not stopped between
point A and point B – have proven their mettle to serve not only our
economies, but also our cultures and our democracies, if
well-maintained and put to their highest and best use.  The way to
achieve these common goals is neither for the United States technology
industry to turn its back on doing business in markets such as China,
nor for the Congress to ban such activity outright.  

The hard question is how to fashion a policy environment in which the
engagement is done in an ethical manner, a manner that upholds the
values that we hold dear as Americans.  The right to free
expression and the right to privacy – in particular, the honoring of
these rights when political activity is at stake, often the political
activity of dissidents – are values that lie at the core of our
republic.  Our respect for these values is essential, too, to our
interaction with the rest of the world – including China and many other
regimes where these values are honored to lesser extent or in different
ways.

The problem that United States technology companies face in doing
business in China, and in doing business in the three dozen or more
countries that extensively practice filtering and online surveillance,
is well-established.  While China seeks to grow its economy
through the use of new information and communications technologies, the
Chinese state has demonstrated its fear of disruptive effects of free
and open communications made possible by the Internet – particularly on
topics that relate to human rights and to political activism. 
This fear has led the Chinese government to create the world’s most
sophisticated Internet filtering and surveillance regime.  One of
the topics commonly blocked is information related to human rights,
including the website of the respected NGO, Human Rights Watch.  

The job of the Internet censor is a very hard one.  Determined
technologists, in China and elsewhere, can get around every Internet
filtering and surveillance regime established to date.  Some
Chinese have described the effect of the Internet filtering regime as a
high-tech screen door: the state seeks to let in the sunlight, but keep
out the bugs.  No matter what, the system will be imperfect.

It is the imperfection of these regimes that give rise to both the
problem and the opportunity facing United States technology companies.
 

The problem is that the Chinese state needs as many players in the
value chain – as many people who operate points of control on the
network – to assist in the censorship and surveillance regime as
possible.  The Internet is a distributed network; as a factual
matter, control of the network, too, is best carried out on a
distributed basis.  The Chinese state expects United States
technology companies – as well as Chinese technology companies – that
operate in China to participate in the distributed process of
controlling the information environment.  The trend in this
direction is nearly certain to continue, absent other factors that
radically change the situation.

The opportunity that lies before United States technology companies is
that their directors and officers and employees do care about the right
to free speech and privacy.  In an imperfect censorship and
surveillance regime, there are gray areas.  The Chinese legal
regime is not all that precise when it comes to what is expected of any
of the intermediaries in the value-chain of the Internet.  
It is in these gray areas that United States technology companies might
be able to make a difference from the perspective of democracy. 
Working together, working with United States policy-makers, and
like-minded companies and policy-makers from other places around the
world, there is a great deal that can be done in these gray areas.

One specific example: as the OpenNet Initiative has shown through its
research, domestic Chinese blog software providers filter content that
is posted to weblogs hosted in China
(http://www.opennetinitiative.net/bulletins/008/).  The law in
China does not state the precise kind of filtering that these weblog
providers must employ.  If United States companies that offer blog
software in fact establish less restrictive means of enabling Chinese
bloggers to write about sensitive topics in their blog posts, then
their argument that their technologies result in a more open
information environment would resonate.

There are ethical lines to be drawn in the gray areas of filtering and
surveillance regimes – lines that will distinguish, or better yet bring
together in common cause, technology companies that are doing business
in China.  The drawing of these lines, ideally in a collaborative
fashion, will help to shape sound public policy on this matter.

A Code of Conduct

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
and to provide the kind of leadership that will result in action –
pro-democratic action – on the world stage.

The most promising next step is for industry leaders to work together,
perhaps in concert with the human rights and academic communities, to
adopt a voluntary solution to the problem – to establish a common
ethical pathway.  

A group of academics studying this issue – at the Berkman Center at
Harvard Law School, the University of California-Berkeley, University
of Toronto, the Oxford Internet Institute at the University of Oxford,
University of Cambridge, and the University of St. Gallen in
Switzerland, among others – have begun working together to develop 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.  Microsoft,
Yahoo!, Google, and Cisco each should be applauded for their
respective, increasingly clear public statements about how they will
operate moving forward when it comes to doing business in China. 
These public statements, and action based upon these statements, are
essential to moving forward toward a solution.

Legislation and Other State Action

Second, it may be the case that the Congress, or other branches of the
United States government, must take new action to solve this
problem.  That said, any outcome that bans United States
technology companies from doing business in China, in the long-run,
would not be in the best interests of democracy there or in states with
similar Internet policies.

There are many other options beyond an outright ban that could help, if
it is clear that the industry cannot solve its own problem.  This
issue of censorship and surveillance should be the Administration’s top
priority with respect to global Internet governance discussions, which
have to date focused on the policy backwaters of the functioning of the
domain name system.  This issue – ultimately, a key issue of human
rights and of the development of well-functioning democracies around
the world – should be a top priority in trade negotiations, not an
after-thought.

As a last resort, 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, raises thorny
questions of sovereignty, and should be taken only with great care.

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.  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. 
 

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, transparency, and a commitment to bedrock democratic values.
 

— end of written testimony —
 
Appendix:

Topics Censored by the Chinese Filtering Regime.

Members of the OpenNet Initiative have been studying China’s Internet
filtering and surveillance regime since 2002.  Our studies have
shown that China’s online censorship systems are by far the most
sophisticated and extensive in the world.

China filters Internet content on a broad array of topics.  The
censors particularly target sensitive political topics for
blocking.  To determine precisely what is blocked, we created a
keyword list of terms on sensitive topics, such as the Falun Gong
spiritual movement, the Taiwanese independence movement, and criticism
of China’s government and leaders.  We used the Google search
engine to compile a list of large numbers of sites related to these
keywords.  Our volunteers then attempted to access these sites
from within China using our testing application.  

Some of the most noteworthy of the topics censored include, as of our 2005 testing:

•    Information online related to opposition political
parties (more than 60% of Chinese-language sites tested were blocked);

•    Political content (90% of Chinese-language sites
tested on The Nine Commentaries, a critique of the Chinese Communist
Party, and 82% of sites tested with a derogatory version of Jiang
Zemin’s name were blocked);

•    The Falun Gong spiritual movement (44 – 73% of sites tested, in both English and Chinese languages);

•    The Tiananmen Square protest of June 4, 1989 (at
least 48% of Chinese-language sites tested, and 90% of sites related to
the search term “Tiananmen massacre”);

•    Independence movements in Tibet (31% of tested
Chinese-language sites), Taiwan (25% of tested Chinese-language sites),
and Xinjiang province (54% of tested Chinese-language sites); and,

•    Virtually all content on the BBC’s web properties and much of the content published online by CNN.

Our testing also found evidence that China tolerates considerable
overblocking – filtering of content unrelated to sensitive topics, but
located at URLs or with keywords similar to these subjects – as an
acceptable cost of achieving its goal of controlling Internet access
and publication.  China has managed over time to reduce the rate
of overblocking as its filtering technologies have improved.

Types of Communications Affected by China’s Filtering Regime.

China’s commitment to content control is revealed by the state’s
efforts to implement filtering for new methods of communication as they
become popular.  Most states that filter the Internet do an
ineffective job of blocking access to certain web sites, and stop there.

While China’s blocking of World Wide Web sites is well-known, much less
is known about the extent to which China blocks other forms of
Internet-based communications.  As Web logs (“blogs”) became
popular in 2004, the state initially closed major Chinese blog service
providers until they could implement a filtering system.  When
these providers re-opened, their service included code to detect and
either block or edit posts with sensitive keywords.  Similarly,
on-line discussion forums in China include both automated filters and
human Webmaster inspections to find and remove prohibited
content.  Most recently, China moved to limit participation in
university bulletin board systems (BBS) that had featured relatively
free discussion and debate on sensitive topics.  The Chinese
filtering regime also causes the blockage, or dropping, of e-mails that
include sensitive terms.  Our testing of e-mail censorship
suggests that China’s efforts in this area are less comprehensive than
for other communications methods, though reports from the field suggest
that the fear of surveillance and blockage of e-mails is a serious
issue for many activists regardless of the precise extent of the
censorship itself.

One of the most intriguing questions, as yet unanswered, is whether
emerging new technologies will make Internet filtering harder or easier
over time.  A new, emerging crop of more dynamic technologies –
centered on the fast-growing XML variant RSS, which is a means of
syndication and aggregation of online content, such as weblog entries
and news stories from major media outlets – should make filtering yet
harder for the Chinese and for other countries that seek to control the
global flow of information.  The cat-and-mouse game is certain to
continue.

The Legal Context of Filtering in China.

China’s intricate technical filtering regime is buttressed by an
equally complex series of laws and regulations that control the access
to and publication of material online.  While no single statute
specifically describes the manner in which the state will carry out its
filtering regime, a broad range of laws – including media regulation,
protections of “state secrets,” controls on Internet service providers
and Internet content providers, laws specific to cybercaf

One thought on “Testimony to the US House of Representatives Committee on International Relations

  1. […] The resolution, declaratory in nature, in one of its probably most significant parts calls on the European Commission and the Council “to draw up a voluntary code of conduct that would put limits on the activities of companies in repressive countries.” The policy document also stresses the broader responsibility of companies providing Internet services such as search, chat, or publishing to ensure that users’ rights are respected. Hopefully, the Commission and the Council will recognize that several initiatives aimed at drafting such code of conducts are underway on both sides of the Atlantic (I have myself been involved in some of these processes, including this one), and will engage in conversations with the various groups involved in these processes. In any event, it will be interesting to see how the Commission and the Council approach this tricky issue, and as to what extent, for instance, they will include privacy statements in such a set of principles – a crucial aspect that, interestingly enough, has not been explicitly addressed in the Parliament’s resolution.The resolution also calls on the Council and Commission “when considering its assistance programmes to third countries to take into account the need for unrestricted access by their citizens.” […]

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