Day 2 Predictions

From Cyberlaw: Difficult Issues Winter 2010
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Sheel: Cisco, with its involvement in China's Golden Shield Project and $16 Billion investment (, doesn't want to have to deal with issues of human rights that might diminish ROI. Notable quote from article and 2008 testimony: Chandler said, "Cisco does not customize, or develop specialized or unique filtering capabilities, in order to enable different regimes to block access to information." My guess: Mark Chandler will affirm this statement tomorrow, but the real reason is that following the GNI principles would be a poor business decision and CISCO isn't willing to make any sacrifice.

Elisabeth: we might push back on the idea that this would be a poor business decision, and solicit Cosson and Hope's opinions. Yahoo and Google have faced real backlash for their actions, and GNI serves as something of a safety net against that backlash. We could also ask Chandler if he can imagine how GNI could be structured such that it would be worthwhile for Cisco to join--it would be interesting to see if what he says matches up with what Cosson says GNI needs to do to recruit new members.
Andrew: I doubt Chandler would be cynical (frank?) enough to respond this way, but Cisco may be shielded from the kind of "PR risks" that Yahoo/Google/Microsoft face, since their products and services reside below the content layer and are less intuitively understandable to the general public. Along these lines, I hope to hear some discussion about the sources of contention between stakeholders at different architectural layers. How do differences in the type of actions governments request from these companies translate to materially different policy preferences, given the extreme broadness of the principles at issue?
Hector: I agree with Andrew and wonder whether Cisco will go to lengths to emphasize the hardware-side of its products/services. This may be a more palatable version of JZ's "gun's don't kill people" framing: "Look, we provide hardware and the software interfaces that are infinitely customizable." Such an argument works only to the extent that the products/services are general-use (generative?) and the extent that CISCO is truly removed from any immoral end-use.
Michael: I think Mark will lean on the fact that Cisco provides hardware. The current constituents of GNI (Micosoft, Google, and Yahoo) exclusively provide services and software which only have a limited range of customizable options. Cisco's products, on the other hand, can be customized for myriad purposes. Unlike the "guns don't kill people, people kill people" fallacy, Cisco's hardware products have a wide variety of applications and are designed specifically and primarily for a number of innocuous purposes and can only be transformed into destructive tools with significant input by the consumer/user. So then Cisco probably has a specific problem with the final bullet point under "Responsible Company Decision Making" of the GNI Guiding Principles which requires that companies use their best efforts to force clients or customers to conform to these rules. It could be a seriously onerous burden on hardware providers to say that they must force customers in other countries to abide by American/European concepts of ethical uses of that equipment, and even more onerous to consider punishing Cisco when its products are used in violation of such standards.
Jason: I doubt that he will emphasize ROI and the need to make money to a group like ours - or, at least he won't explicitly mention his company's desire to make billions of dollars. Instead, I suspect that Mark will emphasize the need for more Internet infrastructure in developing countries, and the uncertain effect of the GNI in terms of continuing to do business everywhere. He would be right about that need - see, for instance, the Internet density map here. So he can ask us rhetorically, "What is Cisco supposed to do? Don't you cyberlaw students want people in China and Southeast Asia and the Middle East and Africa to get online, too? If so, those countries need our hardware - and we can't choose who runs their governments!" And you know what? If he says this, he will have a very, very good point.

Daniel: I believe Chandler will provide his professional - and hopefully personal - account on the role CISCO plays in [facilitating / enabling / providing neutral tools] to allow for "different regimes" to control their nationals' internet experience. Cosson and Hope will probably dedicate more time to in depth discussion of two issues: involvement of industry actors other than the GNI founding members and the types of incentives that are needed for that, including legal alternatives and public exposure of "do some evil" firms. Also, given that we will not have representatives from Google and Yahoo, these companies are likely to figure prominently in the examples of events, actions and concessions to be avoided.

Sanford Lewis: I predict that Mr. Chandler will not discuss in very much depth the extent to which external stakeholder and stockholder pressure has shaped company policy, unless he is prompted by student questions to discuss this.

Lien: The GNI principles are so general and an "implementation / repetition" of international standards. If a certain company (for whatever reason) does not want to join the GNI, this company still has to comply with these standards. To play the devil's advocate, does joining the GNI change anything in reality or is it just a good thing to join because of the company's image and reputation? Furthermore, the concept of the GNI (sort of self- regulation) is a very American concept. European companies are not very familiar with this kind of approach. The GNI might be a good starting point for a company to obey to certain principles. However, the privacy principles are so broadly written that, if a company would follow these principles, it would still not comply with European Privacy legislation. Why would an European company then join the initiative and do all the effort (e.g. audit, ...), knowing that it would still not comply with European legislation?

Elisabeth: I also wonder how true it is that these are "international" standards, rather than American or American/European standards.

Michael: I expect Mark will point out that GNI's primary focus seems to be providing guidelines for instances in which a government or other entity makes direct requests of a company for information (ID of a dissident) or to take certain action (block certain functions of software), but that these values are inapplicable to much of what Cisco does. Cisco is likely less concerned with such direct inquiries and more concerned with customers altering its devices to accomplish bad objectives. The kinds of hardline, direct guidelines that GNI will likely promulgate to address issues that would apply to governments' direct inquiries to Microsoft, Google and Yahoo would be very difficult to apply to companies like Cisco who provide heavily customizable software. In fact, any steps Cisco might take to prevent consumers from using its products to violate GNI rules would, itself, violate the rule encouraging freedom of expression by the consumer of such products. (of course the easy response to this might be that all of these are, a fortiori (had to throw some legal speak in here somewhere), reasons that companies like Cisco should be a part of the conversation to create rules that will be more generally applicable.

Ramesh: I wonder if Mark will agree with the distinction I tried to draw below between removing content that's objectionable to governments and providing private information to those governments to find dissidents. It seems like Cisco's technologies could be used for either; does Mark think both are acceptable forms of behavior?

Bruno: I guess the easiest way for him to dodge the question of why Cisco did not join GNI is the “we have to abide by local legislation” excuse, and that's most probably what he will do. Unless GNI can come up with stronger incentives for companies to join the initiative – stronger meaning better economic incentives –, companies like Cisco will always be able to come up with that excuse with a straight face and do not feel compelled to do any extra effort to improve it's business practices concerning freedom of expression privacy issues.


Tyler: I believe Dunstan will try and draw a distinction between situations involving two types of countries. The first type is countries with laws in accordance with GNI principles but that are not enforced or poorly enforced. The second type is countries with laws that on their face are violative of GNI principles. I hope Dunstan will discuss strategies that corporations should use for situations that arise involving both types of countries and the different approaches that GNI stakeholders can collectively take to preemptively forestall problems in each of the two types of countries.

Daniel: It would be great if we further explored the (blurring) division between these two country-types. Was Google's first move in the negotiation with Turkey - accepting to block videos insulting Atatürk, but only within the country's limits - OK under the GNI principles? How much can a country legitimately curb freedom of speech, according to the GNI framework? IMO, its diplomatic language allows for an "American" interpretation, but also for an "European" one and perhaps others even more restrictive.

Reuben: I'd be interested in hearing how BSR's involvement with the GNI was different than corporate social responsibility projects in other economic sectors and how that speaks to the uniqueness of ICT and these issues.

Ramesh: I'd like to hear Dunstan draw distinctions between two types of conduct that often seem to be conflated in this area -- removing content at the best of governments ( vs. providing private information to governments that can lead to the arrest and prosecution of dissidents (Shi Tao). The first seems like a necessary step to take for companies to conduct business in countries with different laws, while the second seems to raise much more serious ethical issues, as the company is actively helping repressive governments search out and persecute dissidents. I suspect that Dunstan may draw this distinction, as perhaps companies, both inside and outside the GNI, think there are serious differences between the two types of conduct.


Tyler: I expect Chuck to express frustration that more corporations have not signed up for GNI and identify some specific reasons why he thinks GNI has so far been unable to recruit any additional corporations from the initial roster of three (Yahoo!, Google, Microsoft). I also hope that Chuck discusses what preparations Microsoft has made to allow GNI auditors access the sensitive Microsoft information.

Michael: I expect that Chuck will express some level of understanding that many companies are still reticent to join GNI in its infancy before there are any real tangible benefits (especially for smaller companies). But I also expect that he will express some optimism that more companies and organizations will begin to join as GNI matures and proves itself.
I would like to hear how Chuck thinks abiding by GNI guidelines might affect smaller companies. If such companies refuse to give foreign governments the information they request, could a boycott of services by that country's government have have a disastrous effect on a smaller companies bottom line?

Sharona: Along these lines, I would be interested to hear how he thinks he could make newer, especially significantly smaller, companies joining GNI feel a part of the team. As the wiki primer points out, the people at Microsoft, Google and Yahoo have worked together for years to create the foundation of GNI, and it will be hard for additional members to feel they can make a contribution without feeling like second class citizens. Even though Chuck will likely say this can be overcome by a feeling of inclusiveness and democratic collaboration, I would push back to see how willing they would be to re-imagine some of the core tenants of GNI in order to fit the needs of other types of companies.

Juan: As a stakeholders unite, GNI is supposed to have more flexibility and accommodation than its legislative alternatives, such as GOFA. With this flexibility, how will it attract new members in China, such as Baidu (, the market leader of search services), Kaixin network (, the most popular social network website in China, which is a knockoff of facebook), Tudou (, the biggest video site mainly serving local videos) and etc. Facing with a very powerful government, I doubt they will have an incentive to join the GNI. Another question is what is the role of GNI? If company challenges the government request, government would not buy it, what actions would company be supposed to take? Will GNI interface with government? By challenging the government request, the company may be punished by government, either directly or indirectly. Is there any benefit for the company to take the risk? Will GNI work for China? Can it enlighten Chinese government to change its position on human rights and free expression? Should GNI have multiple standards on human rights protection in different countries, since different countries have different views on human rights.

Lien: Good point. I believe we should indeed ask the question to all speakers whether the GNI is not a typical American way of approaching issues, that might not work that easily in other continents.

Reuben: With regards to the relationship between Chuck and Mark, I think that while Chuck will make statements supporting the GNI, he is unlikely to challenge Mark or CISCO to join. I'd also expect Chuck to express some reticence in allowing auditors too much freedom to access sensitive information.

Amanda: I think Chuck will be supportive of GNI's attempts to create an independent entity to deal with privacy issues and hope that he will make a compelling case for how the organization will be able to both grow and scale and include new members while not diluting the message.

Victoria: I suspect that Chuck will applaud the movement already made by GNI and that it creates a safe space for companies like Yahoo!, Google and Microsoft since they come to some form of a consensus it gives them a feeling that they have reached a Best Practices Guide - that has been steered by enough people that it is ethically correct. However, I'd like to know more about whether these companies have stepped into an inappropriate role by creating GNI. In essence, these companies are acting as law makers - and yet they have not been elected. . . by the US let alone the international community. Should there be more checks on GNI? Should their be conversations with elected representatives from countries? Do they ever feel nervous about their place in this rule-making position?

Franny: As applicable to both Chuck and Dunstan, I think there might be some discussion as to how including non-governmental/non-private sector organizations such as EFF adds legitimacy to GNI's purpose and goals. I have to wonder to what extent these organizations also serve safety watchdogs roles within GNI, where clashes between public and private perspectives arise (even if they're supposed to be on the same team).