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