Free Speech and Censorship
Sherwin Siy
Staff Counsel
Electronic Privacy Information
Center
U.S. Tech Companies in
China-Dilemmas
• Censorship (search results, blog
takedowns)
• Disclosing Personal Information
• Providing Equipment Used in
Censorship
Censorship
• Search Results--Yahoo, Google remove
certain links
• Blogs--Microsoft removes blogs posting
criticism
Disclosing Personal
Information
• Yahoo Disclosures linked email
accounts and online postings with:
– Shi Tao: 10 years for reporting “state
secrets”
– Li Zhi:8 years for “inciting subversion”
– Jiang Lijun: 4 years for “subversion”
Providing Equipment Used in
Censorship
• Cisco
– Providing Chinese government with
network infrastructure that can be used for
blocking/filtering
– Marketing to, training police forces in their
use
Company Responses
• Bringing the Internet to China
• The Internet is a tool against repression
• Must obey local laws and customs
Congressional Response
• Global Online Freedom Act
– H.R. 4780
– Introduced Feb. 16, 2004
– Introduced by Chris Smith (R-NJ)
Components of GOFA
• Reports on Internet freedom
• Creates Office of Global Internet
Freedom
• Prohibits altering search results at
behest of “Internet-restricting country”
• Must report filter requests
Components of GOFA (cont’d)
• U.S.-supported content can’t be blocked
• Must report blocked info and takedown
requests.
• Cannot turn over personally identifying
information to a restrictive country unless
OK’d by DOJ
• Export Controls on censorship equipment
Issues with GOFA
• Restrictive / non-restrictive list
– Should it matter what country does the
filtering, blocking, or takedown request?
Issues with GOFA
• Transparency:
– Both transparency provisions require
reporting of filtering and takedowns to
OGIF, not to users
Issues with GOFA
• Special protections for US content
– Why privilege US gov’t speech?
Issues with GOFA
• Integrity of User Information
– Department of Justice has final word on
turning over information
– Transparency issues to begin with
– Again, is the distinction necessary?
Principles
• Transparency
– For users, not just government. If must remove
results, say how many, under what authority,
according to what complaint.
• Notice of Requests
– Users should know what information kept, what
requested, have a chance to object
• Abide by International Law
– Interpret and argue under local laws
• Limitation
– If you can’t protect it, don’t collect it
Principles Should be
Universally Applied
• Transparency: DMCA, hate speech
filtering
• Notice of requests: John Doe suits
• Data limitation: DoJ/ Google requests
• Don’t just roll over: see above
What to Do?
• Legislation is a blunt instrument
• Pressure from companies can make a
difference
• Company incentives to acquiesce to China
demands--profit
• Pressures against censorship that affect
bottom line might alter incentive structure
• Fighting censorship starts at home
Issues to Watch
• Data retention-in EU, US
• Regulation of disfavored content and
disfavored means-pornography, file
sharing
• Thin end of the wedge (child
pornography campaign)
• Mission creep