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Traditional content providers also are concerned about retaining their intellectual property.  Mechanisms to increase Internet freedom and to inhibit the ability of the Chinese government to engage in Internet censorship, such as the development and promotion of circumvention tools, can be problematic from the perspective of traditional content providers, because these tools can also be used for the acquisition and distribution of copyrighted materials.  In fact, there is evidence to suggest that a significant majority of the users of circumvention tools are using them for these types of purposes rather than to access legitimate material that has been blocked by their government. (CITE?)
Traditional content providers also are concerned about retaining their intellectual property.  Mechanisms to increase Internet freedom and to inhibit the ability of the Chinese government to engage in Internet censorship, such as the development and promotion of circumvention tools, can be problematic from the perspective of traditional content providers, because these tools can also be used for the acquisition and distribution of copyrighted materials.  In fact, there is evidence to suggest that a significant majority of the users of circumvention tools are using them for these types of purposes rather than to access legitimate material that has been blocked by their government. (CITE?)
Ne neutrality rules etc - FTC

Revision as of 16:26, 8 December 2010

Internet freedom and China: a framework for analysis

Introduction: the situation in China

A framework for analysis

The actors

Government actors

Overview of Obama administration position:

The Obama administration has publicly stated its support for promoting internet freedom across the globe. The motivation for promoting widespread access to the Internet without censorship is twofold, according to an administration official who visited the Cyberlaw class on Nov. 22.

1. Economic and Jobs Creation Motivation: Some of the United States’ biggest exports are information based -- culture, music, and writing. Thus, censorship in countries such as China deprives U.S. companies of business opportunities. Supporting certain Internet freedom initiatives can help American businesses and exports to flourish.

Censorship could also negatively affect U.S. companies’ expansion into developing markets in countries where government censor information, according to a January 2010 speech on Internet freedom by Secretary of State Hillary Clinton. [[1]]

“If corporate decision makers don’t have access to global sources of news and information, investors will have less confidence in their decisions over the long term,” Clinton said. “Increasingly, U.S. companies are making the issue of internet and information freedom a greater consideration in their business decisions.

2. Long-term Security Motivations: United States foreign policy has long followed the idea that free speech and free flow of information build stronger societies. The thought is that having a marketplace of ideas at the heart of as many societies as possible will make those societies stronger and more secure, thus making international relations more predictable and stable.

President Obama believes that “the more freely information flows, the stronger societies become,” Clinton said in her January speech. “The United States’ belief in that ground truth is what brings me here today.”

However, the administration’s goal of freely flowing information is tempered by other interests. U.S. laws limit and penalize the distribution of obscene or protected information, such as child pornography and copyrighted music and movie files. Thus, the administration must look to policy levers that allow it to promote Internet freedom, while maintaining its interest in limiting the free-flowing distribution of narrow categories of information it has determined to be obscene or protected.

Policy Tools Employed:


1. The Administration, working through the State Department, is funding circumvention tools in an effort to allow citizens to circumvent “politically motivated censorship,” Clinton said in her January speech.

Norms: 1. The government can remind companies of U.S. norms that herald freedom of information. Clinton used such a tactic in her January speech, saying, “For companies, this issue is about more than claiming the moral high ground....Censorship should not be in any way accepted by any company from anywhere. And in America, American companies need to make a principled stand. This needs to be part of our national brand. I’m confident that consumers worldwide will reward companies that follow those principles.”


1. Use market and economic arguments to encourage governments who censor information to at least allow accurate news reporting of events that affect the business and investment climate. As Clinton said in her January speech: “To use market terminology, a publicly listed company in Tunisia or Vietnam that operates in an environment of censorship will always trade at a discount relative to an identical firm in a free society. If corporate decision makers don’t have access to global sources of news and information, investors will have less confidence in their decisions over the long term. Countries that censor news and information must recognize that from an economic standpoint, there is no distinction between censoring political speech and commercial speech. If businesses in your nations are denied access to either type of information, it will inevitably impact on growth.”


1. The government could, but has not yet done so, use laws to restrain the behavior of people and companies subject to U.S. jurisdiction, such as manufacturers who sell routers in China and information services platforms like Facebook and Twitter. Such a law could prohibit companies from complying with the censorship requests of the Chinese government and institute penalties for companies or individuals who violated the law. There’s likely not enough political will to force this type of law through Congress.

2. The government can use existing trade treaties to negotiate with foreign governments regarding censorship policies.

Agency Actors

State Department

The State Department has established the NetFreedom Task Force to coordinate policy and conduct outreach for Internet freedom. It was formerly named the Global Internet Freedom Task Force (GIFT) and had been established by Condoleezza Rice in 2006. The NetFreedom Task Force is coordinated by the Bureau of Democracy, Human Rights, & Labor and the Bureau of Economic, Energy, & Business Affairs – a pairing that illustrates the competing interests at issue within the State Department itself. [[2]]

1. Human Rights Interests: According to its website, one of the reasons the State Department is promoting Internet freedom is to advance the Universal Declaration of Human Rights, which guarantees that all people can “seek, receive, and impart information and ideas through any media and regardless of frontiers.”

2. Business and Free Market Interests: The Bureau of Economic, Energy, & Business Affairs’ mission is to promote economic security and prosperity at home and abroad, according to its website. It tries to open markets and protect intellectual property abroad on behalf of U.S. businesses. Thus, its motives are twofold: to encourage the free flow of information to allow for more transparent markets, while also protecting intellectual property. The latter motive may make it reluctant to support some Code policy levers, such as peer-to-peer file sharing software or some circumvention tools, because they can also be used to obtain pirated intellectual property.

Policy Levers Deployed:

According to an April 2010 report by the Congressional Research Service, the State Department will continue with initiatives that implicate several policy levers. [[3]]

Code: 1. The NetFreedom Task Force will continue the work of the State Department’s GIFT as it oversees U.S. efforts in more than 40 countries to help individuals circumvent politically motivated censorship by developing new anti-censorship tools and providing the training needed to safely access the Internet. Norms The government will make Internet freedom an issue at the United Nations and the U.N. Human Rights Council in order to enlist world opinion and support for Internet Freedom.

2. The State Department will try to extend a “freedom of the press and information” mentality to the international sphere by urging U.S. media companies to take a proactive role in challenging foreign governments’ demands for censorship and surveillance.

Market: The State Department will attempt to manipulate the marketplace for Internet freedom tools by providing new funding grants for ideas and applications that help break down communications barriers, overcome illiteracy, and connect people to servers and information they need;

Law: 1. According to the CRS, $15 million for fiscal year 2010 has been allocated from State Department appropriations to a range of programs that, in full or in part, support Internet freedom. Assistant Secretary for Democracy, Human Rights, and Labor Michael Posner describes these programs as “not just circumvention…. [I]t’s a lot about training people…. It’s some about technology. It’s some about encouraging groups that are in danger. It’s a lot about diplomacy, too, for us getting out there and being sure that when groups are in trouble, we provide a lifeline.”

Commerce Department

Internet Policy Task Force: Launched in 2009, the Internet Policy Task Force is a Commerce Department initiative created to examine the effect of public policy and operational issues on the ability of the U.S. private sector to recognize economic growth using the Internet. [[4]] In the realm of Internet freedom issues, the Task Force has begun to examine international barriers to the free flow of information and their effect on American businesses and global commerce.

In September 2010, the Task Force published a notice seeking public comment on various government policies that restrict information flows on the Internet. [[5]] The comments will be used in a report detailing what affect the policies have had on economic development and global trade and investment and how best to address negative effects. The report will be used to shape the Obama Administration’s “international engagement on these issues.”

The Task Force is comprised of staff members from the National Telecommunications and Information Administration (NTIA), the International Trade Administration (ITA), the National Institute of Standards and Technology (NIST) and the Patent and Trademark Office (PTO), and is coordinated through the Commerce Department's Office of Policy and Strategic Planning.

The Task Force’s goal is to “assist industry, and other stakeholders, to operate in varying Internet environments and to identify policies that will advance economic growth and create jobs and opportunities for the American people.” Policy Levers Employed: Publicized research is ongoing; no levers publicly deployed.

Broadcasting Board of Governors The U.S. Broadcasting Board of Governors is an independent government agency International Broadcasting Bureau that oversees all U.S. non-military international broadcasting. According to its website, the Board’s goal is to provide “accurate, objective, and comprehensive news reports,” while providing a “clear and effective presentation” of U.S. policy to citizens of foreign countries. [[6]] Policy Levers Employed:

Code: According to the Congressional Research Service report, the Board funds counter-censorship technologies and has committed approximately $2 million per year to help enable Internet users under repressive regimes to have access to the Board’s Voice of America (VOA) broadcasts and other U.S. governmental and non-governmental websites and to receive VOA e-mail newsletters.


According to the CRS report, Congress has expressed its interest in Internet freedom issues through congressional hearings and legislative proposals.

1. The House Committee on Foreign Affairs: The Committee conducted a hearing in March entitled “The Google Predicament: Transforming U.S. Cyberspace Policy to Advance Democracy, Security, and Trade.” [[7]] The hearing discussed the December 2009 Chinese cyber attacks on Google and other U.S. companies and considered policy tools to address Internet freedom, trade, and cyber security issues. Chairman Howard Berman (D-California) said at the hearing that the committee had competing interests and had to figure out how to balance a support for freedom of information with the reality that software and technology that facilitate freedom of information and development can also facilitate censorship by government regimes and intellectual property theft. “The notion that American companies can heedlessly supply their software, routers, and information to governments that use them for repressive purposes is untenable, Berman said. “But preventing companies from engaging in trade with countries ruled by those repressive governments is equally untenable, for it would deny billions of people the ability to access the very information needed to support their resistance….[an administration policy review] suggests that the government may need to retool our intelligence and diplomatic communities to protect U.S. intellectual property abroad.”

Policy Levers: Norms: The committee is currently using hearings to clearly delineate its own policy goals and motivations and to raise awareness about Internet freedom issues on Capitol Hill.

2. House Globe Internet Freedom Caucus: The Caucus was formed in March by Representatives David Wu (D-Oregon) and Christopher Smith (R-New Jersey). According to a press release, its goals are to “promote peaceful free expression on the Internet and serve as a forum for members of Congress, the executive branch, and U.S. industry to discuss and debate ideas on how to enhance online freedom and address minimum standards of conduct for U.S. businesses that operate in Internet-suppressing countries.”

Policy Levers Employed by the Caucus:

Laws and Norms: Proposed bills could become law, but even if they do not, the congressmen who introduced them sought to raise awareness about Internet freedom and influence norms – to shape the views of the public and their fellow lawmakers.

Recent Legislative Action

Bills and Resolutions in the House of Representatives

1. H.R. 2271, Global Online Freedom Act of 2009. Introduced by Representative Christopher Smith and referred to the House Committee on Foreign Affairs; and the House Committee on Energy and Commerce. Makes it U.S. policy to (1) promote the freedom to seek, receive, and impart information and ideas through any media; (2) use all appropriate instruments of U.S. influence to support the free flow of information without interference or discrimination; and (3) deter U.S. businesses from cooperating with Internet-restricting countries in effecting online censorship.

Expresses the sense of Congress that (1) the President should seek international agreements to protect Internet freedom; and (2) some U.S. businesses, in assisting foreign governments to restrict online access to U.S.-supported websites and government reports and to identify individual Internet users, are working contrary to U.S. foreign policy interests.

Amends the Foreign Assistance Act of 1961 to require assessments of electronic information freedom in each foreign country.

Establishes in the Department of State the Office of Global Internet Freedom (OGIF).

Directs the Secretary of State to annually designate Internet-restricting countries. Prohibits, subject to waiver, U.S. businesses that provide to the public a commercial Internet search engine, communications services, or hosting services from locating, in such countries, any personally identifiable information used to establish or maintain an Internet services account.

Requires U.S. businesses that collect or obtain personally identifiable information through the Internet to notify the OGIF and the Attorney General before responding to a disclosure request from an Internet-restricting country. Authorizes the Attorney General to prohibit a business from complying with the request, except for legitimate foreign law enforcement purposes.

Requires U.S. businesses to report to the OGIF certain Internet censorship information involving Internet restricting countries.

Prohibits U.S. businesses that maintain Internet content hosting services from jamming U.S.- supported websites or U.S.-supported content in Internet-restricting countries.

Authorizes the President to waive provisions of this act: (1) to further the purposes of this act; (2) if a country ceases restrictive activity; or (3) if it is the national interest of the United States. 2. H.R. 4784 Internet Freedom Act of 2010. Introduced by Representative Wu and referred to the House Science and Technology Committee, Subcommittee on Research and Science Education. Directs the National Science Foundation to establish the Internet Freedom Foundation governed by a board of 12 members, with equal representation from government, academia, and the private sector. The Internet Freedom Foundation shall—

• Award competitive, merit-reviewed grants, cooperative agreements, or contracts to private industry, universities, and other research and development organizations to develop deployable technologies to defeat Internet suppression and censorship; and • Award incentive prizes to private industry, universities, and other research and development organizations that successfully develop deployable technologies to defeat Internet suppression and censorship.

The Internet Freedom Foundation shall be funded by such sums as may be necessary.

3. H.Res. 590, Expressing grave concerns about the sweeping censorship, privacy, and cybersecurity implications of China’s Green Dam filtering software, and urging U.S. high-tech companies to promote the Internet as a tool for transparency, freedom of expression, and citizen empowerment around the world. Introduced by Representative Wu and referred to the House Committee on Foreign Affairs.

Expresses (1) grave concerns about the sweeping censorship, privacy, and cybersecurity implications of China’s Green Dam filtering software; and (2) support for the Chinese people in their quest for Internet freedom and free expression.

Calls on (1) the Chinese government to rescind its requirement for Green Dam to be preinstalled on all new computers; and (2) U.S. high-tech companies to promote the Internet as a tool for transparency, freedom of expression, and citizen empowerment around the world.


Industry is obviously a key player in this area, although ‘industry’ as a whole takes into too many different groups with different goals and motivations. For this reason, industry has been broken into three categories: online content providers (such as Google, Facebook, Twitter, etc.); traditional content providers (companies providing traditional news content via the Internet) and news organisations. This section will consider the motivations and goals of each of these three groups, the tools they have used and intend to use in the future, and how these tools interact with their motivations.

Online content providers

Also online service providers - wikileaks

Online content providers typically think about the question of Internet freedom and internet censorship as a free trade issue. These businesses are in an interesting position. In many respects, they are the best placed actors to actually do something meaningful to improve the situation, but on the other hand, they are private bodies -- meaning their policies and decisions are not necessarily related to the public interest.

The most prominent company in this group is obviously Google, which has frequently expressed its views on Internet freedom. Other industry players, such as Facebook and Twitter, also have stronger incentives to promote internet freedom, and have been used by dissidents and social organisers in repressed regimes with varying degrees of success so far. Access to Twitter is currently blocked in China by government censors. However, Iranian protesters tweeting during protests in Iran in 2009 and Twitter's decision to postpone routine maintenance so that the site would remain available received a good deal of publicity. Twitter does not appear to have a policy on 'Internet freedom' as such as yet and has said it discusses responses to cases like the Iranian protests on a case-by-case basis. However, as Twitter becomes a vehicle for dissidents and promoters of Internet freedom, the company will likely to have to think about these uses more deeply in the future. See following article from the London Review of Books for a good discussion of the use of twitter in Iran [8]

From the perspective of online content providers, the problem government censorship poses is the restriction of the free flow of information. In short, it is a free trade problem. In a recent policy white paper, Google commented on how important open flows of information are for its business, in which 53 percent of its total revenue comes from overseas - see Google's White Paper Enabling Trade in the Era of Information Technologies: Breaking Down Barriers to the Free Flow of Information[9].

Google does not focus on China specifically in this white paper, although it does provide some examples of Internet censorship by the Chinese government, and is clearly motivated by concerns about the disruption of free flows of information in China (see, for example, Google's statement to the Congressional-Executive Commission on China's hearing on Google and Internet Control in China [10] at p. 8).

In a blog post on release of the white paper, Google's Public Policy Director commented: "The premise is simple: In addition to infringing human rights, governments that block the free flow of information on the Internet are also blocking trade and economic growth" [11].

There may be a competing consideration in relation to certain online content providers whose revenue is derived from advertising. In this case, certain markets in which there are high levels of censorship may not be considered particularly problematic if the company does not perceive the market as likely to be a significant source of advertising revenue. So, for example, Zuckerman YouTube may not be particularly concerned by censorship:

"YouTube doesn’t really have an economic incentive to be unblocked in Turkey. If  anything, being blocked in Turkey (and perhaps even in China) may be to their economic advantage". [12].

The consequence of this is that there may be code-based mechanisms that could be employed, which are not currently being used, such as, as Zuckerman points out [13]:

  • increasing the number of IP addresses that lead to the webserver and using a technique called “fast-flux DNS” to give the Turkish government more IP addresses to block.
  • maintaining a mailing list to alert users to unblocked IP addresses where they could access YouTube
  • creating a custom application which disseminates unblocked IPs to YouTube users who download the application.

This really just underlies the point that industry players are motivated by self-interest. This self-interested position means that, to a large extent, they have a greater motivation to push for diplomatic solutions to remove trade barriers, rather than to go out alone and employ whatever code-based solutions that they can to inhibit the ability of the Chinese government to engage in internet censorship -- unless there are very strong economic incentives for them to do so or strong reputational benefits to be gained from doing so.

Related to this is the fact that online content providers have incentives not to "host content that might provoke a DDoS attack or raise costly legal issues" [14]. There is a tension between the fact that these companies are in relatively strong positions to have some influence on Internet censorship in China, yet, of course, they are not motivated by the public interest, except to the extent that it might be valuable for their business (e.g. on a reputational level) to take such a position. Most importantly, they are unlikely to take a strong stance against Internet censorship when the consequence is that their site will get blocked: they are likely to value having their site accessible to users in China over a principled stand against Internet censorship.

A recent report on Policing Content in the Quasi-Public Sphere from the OpenNet Initiatve at the Berkman Center well summarizes this problem [15]:

"Balancing freedom of speech against other social objectives is complex and there are no easy solutions. The five companies cited in this paper are all US companies, but are frequently under pressure by foreign governments to restrict certain areas of speech. They are struggling to balance business decisions with legal and social pressures spanning numerous jurisdictions and dramatically different conceptions of acceptable speech. There is no obvious solution to such conflicting standards and frequently the result to such disputes comes in the form of blocking by foreign governments, which in some cases means individual blogs or videos, and in other cases, entire platforms."

The report suggests that companies do need to be aware of the "human rights implcations of their policies" and to develop transparent mechanisms to balance the concerns of activists, the business and ordinary users, in order to maintain user trust. In other words, the most effective mechanism of encouraging companies to use the power that they have is bottom-up community activism and pressure placed on these industry players by users of their services. In this regard, the proposals by Robert Faris, Stephanie Wang, and John Palfrey in their article Censorship 2.0 are instructive [16].

Traditional content providers

Traditional content providers also are likely to be motivated by free trade concerns -- clearly, the larger the market for their products, the more profitable they are likely to be. However, there are also two competing considerations that make the motivations of traditional content providers somewhat more complex than those of online content providers.

Traditional content providers also are concerned about retaining their intellectual property. Mechanisms to increase Internet freedom and to inhibit the ability of the Chinese government to engage in Internet censorship, such as the development and promotion of circumvention tools, can be problematic from the perspective of traditional content providers, because these tools can also be used for the acquisition and distribution of copyrighted materials. In fact, there is evidence to suggest that a significant majority of the users of circumvention tools are using them for these types of purposes rather than to access legitimate material that has been blocked by their government. (CITE?)

Ne neutrality rules etc - FTC

News organisations

Traditional news organisations that now have an online presence, such as newspapers like the New York Times and television news such as CNN, have similar concerns to traditional content providers in the sense that they want to be able to maintain control of their intellectual property. However, in their role as media organisations, freedom of information and a lack of censorship are fundamental value which they have traditionally sought to preserve.

Less-traditional news organsations, such as Wikileaks, obviously have quite different motivations and are much more strongly oriented towards favouring information freedom at all costs.

Policy levers employed

Law and Market Seeing the problem as one of free trade/global commerce leads online content providers to propose solutions that fall primarily into the 'law' and 'market' levers when thinking about Lessig's four levers. Free trade type solutions could also be das market based solutions, in which diplomacy and international law is used in order to create a open and free market of information. Google sets out clearly the perspective of online content providers. Google states that US policy makers should (p 2):

* Focus on and publicly highlight as unfair trade barriers those practices by governments that restrict or disrupt the flow of online information services.
* Take appropriate action where government restrictions on the free flow of online information violate international trade rules.
* Establish new international trade rules under bilateral, regional, and multilateral agreements that provide further assurances in favor of the free flow of information on the Internet.

Norms and Code Google acted itself by stopping voluntary censorship of its google.cn site in Jan 2010. This move -- which meant users got automatically redirected to the (uncensored) Hong Kong Google site -- could be categorised as the use of code - the automatic redirect - to try and have an effect on Internet freedom in China. The effect of this code-based approach might also have been thought of as a push to change norms -- to make it Chinese users want and value access to uncensored material. In the end, however, Google backed down to a certain degree by providing a Chinese Google search site, which only provided minimal services and a link to the Hong Kong Google website, rather than an automatic redirect to the Hong Kong site, which was Google's initial approach. See this piece from TechCrunch which discusses the aftermath [17]. Google's ultimate solution could be characterised as a weak norms-based approach.

As noted above, there are more code based solutions that could be utilised by online content providers that would make ir more difficult for the Chinese government to engage in censorship. But the problem is creating incentives for companies to use these tools, when on its face there may not seem to be much in it for them. [expand].

Traditional news organisations also act in a norms-based way. Reporting on censorship emphaises the norms of freedom of information and can also lead to pressure on private companies to use code-based tools to limit the ability of the Chinese government to engage in censorship, and to encourage the government to engage in diplomatic effects in the same direction.



Background - decentralised news media (similar issues to last week)

Could look at problem through lens of following question: Who is a journalist and why does it matter?

Are news sources like Wikileaks new sources that will replace existing media formats? What’s the role of these incoming organizations?


  • Verifiability
  • Institutional respect
  • Deprofessionalization (dual loyalties – loyalties to company and to whatever news site gets info)
  • Is one of the "problems" that the Internet provides a newer, efficient framework for giving large masses access to "private" documents and allowing leakers to broadcast those documents with ease. (Ie mainstream media isn't serving as a filter any longer). Is there a filtering problem, or just a filtering change? (info from trade secrets to national security implicated). Role of news media as good government watchdog changing?
  • Privacy issues: to what degree does CDA 230 apply? (First Amendment concern vs. vicarious liability extension to breach of employee confidentiality agreements etc)

How much does this apply to blog/site that has editorial control over the posting of content?

  • First Amendment concerns: What’s the role of the media and how does it relate to how our society is structured?
  • Global internet freedom issues – role of media sources in

Shifting from print group with defined reporters to sources with whoever – does this make news sources easier or harder to control by diff sources?

  • Reporters’ shield laws?: Who is defined as a reporter? Proposed federal shield law in US wouldn’t cover Wikileaks etc
  • Filming of police officers with cell phone camera – online issues – phone confiscated?

3 states have laws against filming of officers on duty How does this tie into larger picture of what it means for journalism?

What is the best combination to regulate?

Laws Norms Market Architecture

  • FTC reg requiring bloggers to disclose when they’ve been paid for their reviews

Can we change norms to revert to less disclosure? Is that even what we want?

  • Market happy with more disclosure – can drive ads so we like it

Architecture has made this possible

  • All factors pointing this way to more disclosure. So where will the pushback come from?

Is the dot going where we want it to go (effective journalism)? Assuming that it is, which area are we going to find the biggest threats to this movement?

A more specific problem

Look at case study -- Country that is using regulation and norms to keep online media at the status quo of print/broadcast "traditional" media. China: state run media – TV and news Trying to keep online media at that status quo. What are they doing, and where are the leaks?

Problem Will new/decentralized media make countries like China more free? Or will they make those countries easier to control?" Other questions like "how?" and "what can be done?" and "should anything be done?" follow from those initial questions. Iran, Google and the GNI, how new media should work, etc. all seems to fall out of that.

Potential problems with the problem

  • making this too much about how China controls the network and not enough about how new media can break (or supplement) China's control.
  • moving into more of a political question, about which we maybe do not really have the expertise to answer (in the sense it requires quite a lot of knowledge about the political, historical, cultural contexts in China/Iran etc) And also the what should be done question is potentially pretty

culturally specific (as the Neiman article notes).

Alternative approach - moving away from media issue

  • focus on what the responsibilities/obligations/best practice of US based companies (e.g. google etc) can/should be when dealing with these countries in the internet context.
  • google China, google's approach to mapa and disputed territories. Other examples?
  • What role can and should such groups play in what are complex polital issues?