Open Networks, Closed Regimes

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This page documents a single class session on worldwide Internet restrictions taught by Joshua Gruenspecht, Conor Kennedy, and Dan Ray in April 2009. We've filled it out with some background information and our reactions, in the hopes that it might be useful to someone else teaching a similar subject in the future. Special thanks go out to Caroline Nolan and Colin Maclay, who provided invaluable assistance both in the early days of planning the class and in the simulation setup. Thanks also to Andrew McLaughlin for taking time out of his schedule to join the class.

This page is a work in progress, and we encourage anyone to add to it. The wiki only permits registered users to edit it, but you can create a free, pseudonymous account using the link at the top right corner of the page. (You can copy our formatting or add your own; a template for the yellow annotations appears in an HTML comment at the top of the page source.)

Part I: Early Preparation/The Original Wiki

Problem to be solved

Our students had access to an earlier version of this wiki page. For the information in this section, unformatted text indicates material that was available at the time of our presentation, and yellow boxes like this one are annotations added after the fact think of them like the director's commentary. The actual revision of the page at the time of the class session is here.

US-based internet services are used by citizens of every regime in the world. Western-based internet companies operate these services in many countries where governments routinely request or demand sensitive information about their citizens. How should high-level officers respond when their companies receive requests to turn over information which violate privacy and anonymity expectations? How can citizens, NGOs, and government actors influence the way these companies respond?

Precis

The idea of the internet service provider as a border-defying government-regulation-free jurisdiction was already dying in the 1990s, but the large-scale movement of internet services into regimes without free speech protections has raised serious concerns about managing cross-border privacy standards over the last five years. From Yahoo! turning over pro-democracy Chinese bloggers to the Chinese government, to Saudi Arabia tracking porn downloaders by pulling ISP records, to South Korea trying to arrest anonymous government critics, the problems are widespread and not restricted only to regimes that Americans are used to thinking of as "repressive." The globalization of internet services raises difficult questions: What requests for information are invasive? What kind of deference is due to local sovereignty? How can the competing demands best be balanced? How can the relevant stakeholders work toward achieving a proper balance?

The Story So Far

This section constitutes the class's common ground, in that all students were expected to read it. It is intended to situate today's issues (including our simulated crisis) within the Internet's history, and to introduce the three major proposals we expected our simulation groups to cover.

Several weeks ago, our class read John Perry Barlow’s Declaration of Independence of Cyberspace (this refers to the readings for an earlier class. It's probably not essential to assign it; this summary is plenty for our purposes.), written in 1996, in which he addresses the nations of the world and “declare[s] the global social space we are building to be naturally independent of the tyrannies you seek to impose on us.” For Barlow, perhaps the most important innovation of cyberspace was its ability to act as a great leveler: “We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth. We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.” As these lines imply, the key to this brave new world of Barlow’s was the possibility of anonymity (or pseudonymity): real-world barriers placed by normative biases or governmental controls could be hurdled by individuals joining online communities to express their provocative thoughts. Secure in the knowledge that their identities were divorced from their real-world selves, citizens of every nation could create the first truly free global marketplace of ideas.

From well before Barlow’s Declaration, this idea of the Internet as an enabler of the anonymous expression of ideas was a well-established meme in the popular conception of the Internet, from Peter Steiner’s famous New Yorker cartoon to the aphorism that “The net treats censorship as a defect and routes around it.” This quote comes from John Gilmore And just as quickly, people started to raise questions about whether a completely uncontrolled discourse was desirable – Larry Lessig famously told the story (see p. 102-106) of one anonymous student who single-handedly shut down Lessig’s first online classroom bulletin board by attacking his classmates with unstinting vitriol. The techno-libertarians remained adamant that online communities would develop mechanisms to cope with such problems, and that the benefits of being able to create a discussion area open to all comers – more freedom under repressive regimes, more frank discussion for every individual – would outweigh any drawbacks.

However, the accuracy of the idea that the Internet need not respect terrestrial law was soon called into doubt. Tim Wu and Jack Goldsmith document (see Chapter 1) the 2000 case in which Yahoo! attempted to resist a takedown request from the French government. After activists discovered Nazi merchandise for sale on a Yahoo! site, they appealed to the government to enforce the laws banning such material from being sold in France. Yahoo! protested that there was no way for it to identify traffic coming from France, and that to enforce the French laws would ultimately mean enforcing the lowest common denominator of all international law in all locations. However, having lost their case in the French courts in the face of expert testimony, and facing fines of 100,000 francs per day against their new French division, the company caved and admitted that IP addresses could be used to tell from what country a visitor came. This was a blow to the notion that the Internet was inherently resistant to national laws, but it was also a blow to the idea that users of the Internet were all faceless numbers – it soon became very clear that the companies that individuals did business with on the Internet knew plenty about their users, both in the form of information submitted by those users and in the form of other incidental data.

Once those two facts were combined, it became clear that online service providers doing business internationally were vulnerable to economic threats if they failed to comply with local legal regimes by turning over nominally anonymous users. This acquired early public salience in 2004, when the Chinese government discovered that someone with a Yahoo! email account had forwarded to a US-based pro-democracy blogger an internal Communist party message warning of potential unrest which might arise from discussion of the fifteenth anniversary of the Tiananmen Square protests. China demanded that the company turn over any records relating to the disclosure of its state secrets, and Yahoo! complied without question. Chinese journalist Shi Tao was ultimately arrested and sentenced to ten years in prison. After the role played by Yahoo! was disclosed, the company became the subject of global outrage, castigated by pro-free-speech nonprofits and hauled before Congress to account for its actions. As of 2009, Shi Tao remains imprisoned. However, Yahoo! was merely the most visible of the companies involved in such disclosures – Amnesty International reports that many of the largest international online service providers were implicated at the time and continue to wrestle with these issues.

In recent years, similar cases have cropped up all over the world, from Africa to Asia to the Middle East, and even some American companies have taken part in using the disclosure-friendly laws of other countries to track down derogatory speakers. Many of these countries describe themselves as protecting themselves from the dangerous consequences of free speech: in January, South Korea arrested a blogger whose acerbic postings about government bureaucrats had supposedly undermined the population’s faith in the government’s ability to manage the global financial crisis. These governments say that free speech is always at war with social stability, as it was in Lessig’s classroom, and that they and Americans simply disagree on where the line must be drawn. At the same time, pro-democracy activists say that American companies and the American government aren’t doing enough work insisting upon the universality of American values.

The most salient legislative response has been the Global Online Freedom Act (GOFA), proposed by Representative Chris Smith (R-NJ). GOFA would require the State Department to track internet-restricting countries and then forbid US corporations from a) storing users’ personal data within the borders of those countries or b) turning over any personally identifiable information to law enforcement within those countries without first seeking the permission of the US Department of Justice. Many pro-free-speech non-profits have praised the GOFA bill as an “advance for online free expression.” Commentators have also suggested, however, that it is unworkable in practice, and would in effect require US companies to cease doing meaningful business within such countries.

Some corporations have pushed instead for a non-government-driven multi-stakeholder plan of action. Several of the largest American online service providers, including Microsoft, Google, and Yahoo!, have joined forces with the Berkman Center to develop the Global Network Initiative (GNI). The GNI lays out a set of universal principles to be referenced when making difficult human rights decisions; it then gives implementation guidance to boards considering those principles on a case-by-case basis as requests for users' data come in. Some of the Congressional critics of these companies have been mollified by the evident progress. At the same time, some legal scholars and privacy specialists (see Rotenberg quote "It's good that companies are paying more attention to the need to safeguard fundamental rights on the Internet, but this proposal lacks specific recommendations and fails to address key concerns about the surveillance and censorship of Internet users") say the GNI is not widely enough accepted or equipped with severe enough penalties to make a serious difference.

Meanwhile, countries wary of indiscriminate speech have started to look at alternatives of their own. This past year, the International Telecommunications Union (ITU), a specialized agency of the United Nations that deals with the regulation of international telecommunications issues, opened up a study group on Question 6-17 (Q6/17). The Q6/17 group was chartered at the request of a state-owned Chinese telecommunications firm to investigate the feasibility link to .doc of retrofitting the internet with Internet Protocol (IP) traceback technology. IP packets, the individual "envelopes" used to send information across the internet, are difficult, if not impossible, to follow back from their destination to their source. IP traceback technology would use new software and hardware to retrofit tracing mechanisms onto the internet as built, so as to make it easier to find the sender of a given message. The proponents of Q6/17 suggest that it could be used to make it more difficult to remotely infect computers with viruses or make anonymous threats online. Privacy specialists, however, suspect that the major purpose is to crack down on unwanted speech.

Required Readings

In the spirit of a class in which different groups were meant to represent different constituencies with different backgrounds, we decided to move away from using the readings to get the class on the same page. Aside from the text above, which was assigned as introductory material, each group was assigned individualized readings to explain "their" point of view. As a result, we removed the Required Readings section of the page entirely, archiving it, as seen below. The Additional Readings section remained in place, for those students interested in a wider exploration of the issues. The individualized readings were emailed individually to the class groups, as discussed in Part II.

Early brainstorming on this topic

Additional Readings

(Some of these and additional readings will be broken down by simulation group)

Audio:

Video

Text

“Just the Facts” Reporting

Critiques

Links

http://blogs.wsj.com/chinajournal/2008/10/28/parsing-the-google-yahoo-microsoft-global-network-initiative/

http://www.nytimes.com/2008/11/30/magazine/30google-t.html?_r=1&adxnnl=1&partner=permalink&exprod=permalink&adxnnlx=1229749063-T7qNc5xv9ZLDiLcjc8AZxQ&pagewanted=print

http://blog.wired.com/27bstroke6/2008/04/republican-hous.html

http://rconversation.blogs.com/rconversation/2007/01/google_yahoo_mi.html

http://www.circleid.com/posts/print/20081028_global_network_initiative/

http://www.guardian.co.uk/technology/2008/oct/30/amnesty-global-network-initiative

http://www.economist.com/world/asia/displaystory.cfm?story_id=12783609

http://www.huffingtonpost.com/michael-a-santoro-and-wendy-goldberg/chinese-internet-censorsh_b_156212.html

http://news.cnet.com/8301-13578_3-10040152-38.html (Declan McCullagh of CNet News on Q6/17, including links to several leaked ITU documents)

Part II: Planning and Execution/The Week of the Class

Parts II and III cover the class as it played out, and represent entirely new material on this wiki. As a result, there are no yellow commentary boxes in these sections.

The Lead-up to the Class

The class was divided into six role-playing groups representing six constituencies with complaints about the manner in which free speech issues on the internet are currently handled. Group assignments fell naturally out of the existing divisions within the class - each role-playing group represented two of the discussion topic groups on the syllabus. Each group was emailed individually approximately seven days before the class date. The email explained the concept behind the class:

For the Anonymity and Privacy class this coming week, we're going to run things slightly differently. The class will be divided into six groups, and each group will be given an identity as a participant in the ongoing global battle over anonymous speech online, as well as a series of unique readings giving some specialized background. Then, in class, we'll introduce some general background and then have an exercise involving both y'all and our guest. See the last page of the attachment for your readings.

As the text of the email suggests, each one contained an individualized reading for the associated group. See below for the attached readings:

The Day of the Class

The room was reworked in order to remove barriers between students and facilitate discussion. The central classroom table was broken into constituent tables, each of which was placed along the outside wall of the class and topped with a name tag indicating the individual group which was expected to use that table as its base of operations. Chairs were placed inside the tables, rather than outside, to bring the groups closer to one another and the central discussion space within the classroom. (See the room plan here; the front of the room is on top. While it didn't work out exactly as pictured, the idea is the key.) Students were asked to begin the classroom seated at the tables associated with their role-playing groups so that the transition from the presentation and discussion to the simulation would be as seamless as possible.

Conor opened the class with a Power Point presentation that reviewed the basic outline of the issues at hand. This served both as a refresher of the introductory reading material and as a point of reference for the groups within the simulation.

Conor's Introductory Presentation 1

Conor's Introductory Presentation 2

After the introduction, Dan moderated a conversation between two stakeholders in the current international contretemps over networked speech control issues: Colin Maclay of the Berkman Center and Andrew McLaughlin from Google. Colin discussed difficulties involved in creating the Global Network Initiative and acquiring more signatories, especially in Europe. Andrew discussed changes that he thought would help make the GNI more useful to individual users.

Dan Moderates a Conversation Between Colin Maclay and Andrew McLaughlin 1

Dan Moderates a Conversation Between Colin Maclay and Andrew McLaughlin 2

Dan Moderates a Conversation Between Colin Maclay and Andrew McLaughlin 3

Dan Moderates a Conversation Between Colin Maclay and Andrew McLaughlin 4

Once everyone was caught up to speed on the tensions which would have to be navigated in the simulation, Joshua explained the simulation to the participants. Groups were asked to develop a strategy for creating a widely acceptable solution to the "Open Networks, Closed Borders" problem, to discuss their solution with other groups and acquire partners, and then to present their revised solutions to the class at large. After feedback, the solutions would be voted upon by the members of the class.

Joshua Runs the Simulation

The first 40 or so minutes of the hour-long simulation period was scheduled as follows:

  • 2 minutes: Explanation from the team
  • 5 minutes: Intra-group meetings to elect a recorder/presenter and to set strategy
  • 10 minutes: Inter-group meetings. Recorder/presenters stay in place while other members of the team (ambassadors) venture out to discuss the acceptability of proposals with both ambassadors and recorder/presenters from other groups.
  • 2 minutes: Groups are presented with a disruptor to ensure that each one remembers that other groups have different interests: in this case, a letter offering the opinion of select members of Congress regarding the issues at hand (an actual letter; visit this site to see the text).
  • 5 minutes: Intra-group meetings to report back and revise solution proposals
  • 10 minutes: A second round of inter-group meetings
  • 2 minutes: To write up final solutions

Each group was then given two minutes to present their final proposals to the class, and then Colin Maclay, team lead on the GNI project at the Berkman Center, offered feedback as to the viability and utility of each solution.

Groups discuss their Proposals 1

Groups discuss their Proposals 2

Groups discuss their Proposals 3

Colin Maclay gives feedback and Joshua concludes

Originally, the voting was scheduled for the last five minutes of class, but proposal presentations and feedback exceeded the available time as it was, and so voting was pushed off into post-class time.

After the Class

After class, we gave all of the participants an opportunity to vote on the proposals via email. The email, which summarized the proposals as explained in class, is excerpted here:

Each of you (individually, but remaining in your role from the simulation) should rank the solutions listed below from most to least acceptable, and draw a line between "tolerable" and "intolerable" solutions from your point of view. For example:

6 3 | 4 5 2 1 would indicate that you liked China's answer the best, could also live with Congress's, and found Vietnam's utterly unacceptable.

The carrot: Your votes will inform the final writeup that we do for the class and for the GNI team.

The stick: We will hound you mercilessly until you vote.

Thanks again, The United Nations of IIF

___________________________________________________________________

Solution 1 (Vietnam): Vietnam is willing to accept the GNI principles and best practices, but will carry them out using its own laws and and due process protections. Companies operating within Vietnam must follow all its laws and heed its national security policy.

Solution 2 (Bloggers): Vietnam should enact a DMCA-style (domestic) law that absolves bloggers from criminal liability for objectionable posts so long as they are timely removed. ISPs are also immune from liability so long as they cooperate in taking down objectionable content.

Solution 3 (US Congress): Any ICT company turning information over to a foreign government must clear that disclosure with the US government, which will apply a compelling need standard. ICT companies who turn over information without permission are subject to sanction.

Solution 4 (Yahoo!): Yahoo! proposes that individual conflicts be informally arbitrated by the individuals involved through a standardized process, and that irreconcilable conflicts be referred for binding arbitration to a special subcommittee of the WTO

Solution 5 (Amnesty): AI proposes a network of pro bono lawyers in Vietnam, who will sue on behalf of targeted bloggers when ICT companies inform AI that they have received information requests. A review board is in place to permit other nations to pressure Vietnam if necessary.

Solution 6 (China): Nations are only bound by treaties, and China is happy to opt out of anything the other groups agree on that would limit its sovereignty. Instead, it advocates the Q6/17 program, which would limit anonymity on the Internet layer.

As our team would have predicted, the teams, when asked to vote in character, voted largely for their own solutions. However, even among the second-choice solutions, no alternative was a clear favorite:

Team 1 (Vietnam):

1 6 | 2 3 4 5

1 2 | 6 4 5 3

5 2 3 4 | 1 6

5 1 | 2 4 6 3

Team 2 (Bloggers):

2 1 3 5 | 4 6

2 5 3 4 | 6 1

2 3 4 5 | 6 1

4 2 1 | 6 5 3

Team 3 (US Congress):

3 | 1 2 5 4 6

3 2 4 5 | 1 6

6 5 4 3 | 2 1

2 3 4 5 | 1 6

Team 4 (Yahoo!):

4 5 2 3 1 6

4 5 2 | 3 1 6

4 1 2 5 3 6

4 1 | 2 5 3 6

4 1 5 6 | 2 3

Team 5 (Amnesty):

5 4 1 3 2 6

5 2 4 3 1 6

4 3 5 2 1 6

4 5 3 2 | 1 6

2 4 5 | 3 1 6

Team 6 (China):

6 1 2 | 5 4 3

6 2 1 | 5 4 3

6 1 2 | 5 4 3

As the voting results suggest, China and Vietnam were most interested in each others' solutions, and the same was largely true of Yahoo! and Amnesty International. Perhaps unsurprisingly, the team representing the US Congress was hopelessly confused. There was, however, a clear loser: the team 6 (China) solution implementing Q6/17 was overwhelmingly rejected as unacceptable.

Part III: Reactions and Discussion/Suggestions to Future Class Leaders

Successes and Failures

There's disagreement about whether the class's discomfort with our shakeup of the standard IIF classroom layout was worth the pedagogical benefits. On the one hand, without tables or computers creating physical boundaries between students, they were much more likely to explore the classroom during the simulation. On the other,open seating in a large room with the students facing the speaker rather than each other might have disoriented students who were used to dividing attention between their computer screens and the presenter in the front of the room. In any case, the class's interest in the topic seemed to bring them back, and they remained engaged throughout the introduction and the discussion portions of the session.

We could have done a better job in preparing our guest presenters for the session. In particular, it now seems clear that running an activity as hands-on as a simulated negotiation would have benefited from more time for questions and answers. This might have let students get into their roles in front of the rest of the class, which may in turn have quickened the initial "enrolling" process once the simulation began.

The dynamic between one speaker in the room and another over the web was interesting, but presented the challenge of equalizing the debate. When one person appears ten times as large as the other, the default is for the audience to pay more attention to the bigger speaker.

The simulation was popular with the class and brought a lot of energy into the session. Its efficacy as a pedagogical tool is unclear; while it may not have imparted any additional awareness of the complicated problems faced by negotiators in this field which had not already been discussed in the introduction, it did serve as an incentive to read (lest players be exposed for ignorance in front of their classmates), and also as a way of driving home the problem and making the class memorable. No solution emerging from the simulation achieved any kind of workable consensus, but no solution has emerged from any real world equivalents of the negotiation over human rights and internet privacy in China.

The best part of the simulation was that it served as an open venue that induced a sort of deliberate democracy, in which students started with an idea of their stakeholders' interests but changed that idea during open debate. There was active participation because our readings were well prepared, the introduction to the simulation was spot on, and the classroom permitted exploration.

Role of Technology

Introduction

For our presentation, we turned to PowerPoint. There are a few basic trade offs to keep in mind when presenting on a complex topic:

  • Keep the audience engaged v. substance
  • Length of presentations v. depth
  • Accounting for a large differential in pre-existing knowledge on the topic
  • Navigating the political winds: recognizing what's fact, what's opinion/analysis, and what falls between the two

The best approach to balancing these trade offs is working on the presentation over time, so that you have time to react to your own work when you come back to it. Otherwise, make sure to solicit audience opinion so that nobody feels there's a perspective that you're consciously keeping out of the discussion.

Discussion

Given Andrew McLaughlin's schedule constraints, we ultimately were forced to have him join the class from the airport. As a result, rather than leveraging traditional videoconferencing software, we turned to a laptop-based video client. We considered both Google Talk and Skype, and ultimately turned to the latter. Either would probably have worked fine, but Skype didn't immediately show Andrew as being online. The important thing here is to try out whatever videoconferencing tool you use ahead of time, with the actual guest if possible. We were able to get place room microphone in the middle of the area our students were sitting; this made it possible for them to ask questions and respond to Andrew directly.

Simulation

Unlike many of the other IIF groups, our team decided not to make technology tools a central part of our class plan within the interactive portion of the class. Feeling that the class's early experiences using the question tool and Twitter in-class had been somewhat isolating, we decided to look for an innovative pedagogical tool which would jumpstart class discussion and force students to confront each other. Ultimately, we decided that the best choice was to have the class close their laptops entirely, and that our tool would be a classroom exercise rather than a technological innovation.

This decision ultimately led to our decision to create the simulation, whose successes and failures are discussed above. Generally, however, we feel that the simulation was at least as successful as any network tool in involving the class - in fact, many of our voting query responses stated that class members found the exercise particularly enjoyable.

Additional Suggestions for Future Classes

Simulation

Timing

In any future run of the simulation, we would first like to see additional time allocated to that portion of the evening. Ideally, we would offer participants an opportunity to present, to vote, and then to realize that groups' first choices were all their own solutions and to renegotiate accordingly. In order to do so, future instructors will likely have to make more than an hour available for the simulation portion of the class.

Framing

More importantly, "success" for purposes of the simulation should be defined in such a way as to encourage more cooperation. We made an effort to frame the discussion in terms of Lessig's New Chicago School tools for societal manipulation, in the hopes that the class would consider legal, normative, architectural, and market solutions. Ultimately, they did, but this focus on the mechanics of the solutions distracted from the need to continue to push the need for a consensus on values.

One possibility is to increase the salience of a discussion of the values that a solution needs to embody. By explicitly judging solutions along these axes, students can gain a clearer understanding of the pluses and minuses of their solutions. In his critiques of the solutions as discussed in class, Colin Maclay suggested several such values:

Efficacy - Is it likely to strike a balance that protects and advances expression and privacy so that it falls roughly in line with international human rights standards (which include exceptions for security/order, and health/morals) as well as national law? Can it be designed to improve over time? How does the approach recognize that while governments around the world (certainly not just China or Vietnam) engage in practices ranging from questionable to clearly wrong, there are legitimate functions performed by (virtually) all governments (law enforcement), and we generally expect good corporate citizenship in conducting them. To the extent we can identify them, instances of imminent harm are the easiest case, but working into less certain territory, we need an approach that allows companies to push back against government demands on some occasions and to comply with them on others. A nuanced process must be able to account for the spectrum of 'legitimate' expression standards around the world. That is, one that adhere to Andrew's test while also being capable of identifying cases where robust democracies like US, Australia, Italy and others may overreach and therefore require thoughtful pushback. The trick is developing a process that distinguishes between these cases and contexts.

Accountability - Verifying that actors are doing what they say they are. Even if, as in the case of the GNI, they do what they *should*, we must still anticipate that there will be incidents with bad endings. We need a means to determine whether that was a poor implementation on the company's or government's part, or a deficit in the law / standard / approach. For the GNI, accountability is also one of the core factors driving the NGO backing and support. Rather than a company or US-driven approach, this guarantees that human rights groups remain in the room, helping to shape the process, applying pressure where necessary (and where companies can't necessarily reach) -- especially regarding learning, compliance, communications, etc. This was a key consideration for GNI from the start. Indeed, Andrew's characterization of Google's concern around GNI being toothless/suffering from free riders is explicitly addressed by a robust accountability regime.

Scalability - The numbers of Internet users and uses continue to grow rapidly (especially if you include mobile devices), and whereas there was arguably little reason for a government to fear the Net in the past (eg, if <5% of the population was online), that seems to be changing. Not only are more folks online, but they are doing more while online - thus creating and sharing more content and information (intentionally and not). Just as we've seen censorship increase (as shown through Berkman's work in the OpenNet Initiative), it seems reasonable to expect requests for private information to increase as well. The solution must be able to account for not only new products and services developing by companies, but also new tactics and tools for censorship and monitoring by govts. It needs to be able to adapt to a constantly evolving landscape, with emerging risks and new hotspots that change rapidly. Best practices/helpful interventions are likely to change over time. This means that any solution has to be able to scale and evolve like the Internet itself, which would challenge in-country legal responses at scale, decision by US committee (as per GOFA) or int'l body, technical fixes, companies (check out http://www.nytimes.com/2008/11/30/magazine/30google-t.html and consider how one current might approach scale), etc.

Transparency - Conveying some or all of what is happening (with consideration as to unintended consequences and appropriate handling of information), including the risks, is important for effective intervention on the part of the policymakers, advocacy organizations, business, and ultimately users (who decide what, if anything, they do online). Ideally, the process should generate empirical information, directly informed by company experience, in order to understand what's happening at scale, rather than by anecdote (which is all too often the case). This can also create a chain of accountability and an understanding of new/potential pressure points as they emerge over time.

Political Neutrality / Palatability - From the perspective of a foreign sovereign, is it reasonable for the USG to determine what people say and do on the Net, which laws are enforced, etc.? If there is a USG list of repressive states, won't that determination be subject to political pressures just as are USG human rights reporting, and congressional requirements to list countries' performance vis-a-vis supporting terrorism and drug trafficking? Is a UN body any more appealing / realistic; what about capture, inefficiency and typical US concerns?

Sustainability - Beyond scaling, how will this approach last over time and in the face of technological, cultural, legal and market change? How do you build it to adapt as the challenges morph, and (hopefully) as the opportunities emerge? Eg, if it's focuses purely on Internet rather than mobile or OSPs instead of ISPs, if deep-packet inspection is implemented, if rule of law advances everywhere but does not supports privacy or expression... What's the plan to generate resources to accomplish it (who pays)? What impact will political change have over time? Are there ways that collective action by companies in certain markets can incentivize other companies (local, competitors, etc) to adhere to similar standards? In terms of norms, what combination of companies willing to adhere to certain standards, governments, NGOs and users can create an environment that's both competitive and observant of human rights?

More concretely, there is also the question of how the simulation could be designed to make students take these values into account, encourage more crossover voting, and ultimately promote the development of consensus solutions. As suggested above, we would recommend a second round of proposal writing after a first-round vote. An additional option would be to avoid fixed numbers of solutions, and to allow groups to come together and offer jointly authored answers to the problems raised in class. Perhaps it would make sense to distribute Colin's rubric ahead of time, so students know what kind of results we're looking for. On this note, it might also make sense to distribute a worksheet with (suggested?) proposal components: e.g.,

______________'s PROPOSAL

  • Actions to be taken by individual states: ______________________________________
  • Actions to be taken by the United Nations: ______________________________________
  • Actions to be taken by a particular NGO: ______________________________________

This might reduce outside-the-box solutions, but it would counter some group's tendency to state their position on the issue rather than suggesting a new policy.

Materials

Many of our materials were keyed to the problems experienced in Vietnam over the course of the few months before our class session. We wanted to make our conflict as fresh as possible, and the readings that we offered to participants reflect that goal - almost all come from the last year, and many deal with extremely current events. To the extent that the questions raised in Vietnam in particular are overtaken by events, future instructors may wish to update the cases discussed therein, or to address problems in new and different international censorship regimes.

To the extent that additional materials can be presented which will drive home the point of view of countries which view societal responsibility as a significantly more important value than freedom of speech, those materials will be particularly valuable. It is difficult for Americans, and particularly American law students, to realize exactly how far off the international consensus position on free speech the United States really is. Without some explanation of other countries' substantive challenges to our First Amendment jurisprudence, simulation participants may have some difficulty engaging with their roles. (Some of the participants viewed being Vietnam or China within the confines of the simulation as being "the bad guy," a statement which should at least be challenged by the materials, if not ultimately disproven.)

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