Debate 3-Argument for the Resolution

The Question

"Resolved: United States technology companies should stay out of regimes that force them to sacrifice the civil liberties of citizens as the cost of doing business in those states."

General Ideas

• Participation in filtering of political speech is wrong.
• Collaborating with oppressive regimes reinforces the status quo.
  • Citizens within a regime are more likely to call for change if the U.S. companies are totally absent rather than giving the impression they are available.
  • If Google is working in concert with an oppressive regime Google engineers are not attempting to circumvent oppressive controls.
    • "Google can build the technology the Chinese need to make China’s regulation more perfectly enabled, and China can extract that talent from Google by mandating it as a condition of being in China’s market." Lawrence Lessig, Code 2.0, pp. 80.
    • Participation in content filtering not only supports the practice directly by making it possible, it neutralizes the ability of U.S. companies to be a real force for change in oppressive regimes.
• Turning information over to oppressive regimes contradicts basic values that companies espouse (or should espouse).
  • Google refused to turn over 1,000,000 random searches from a specified time period to the U.S. government to aid the government with an effort to discover trends in searches for pornography in order to better regulate pornography. (January 2006, Lawrence Lessig, Code 2.0, pp. 204). This seems to reflect some level of discomfort with what the government was doing. Whether it was because Google felt that the privacy of users may be compromised or whether it was because Google felt this was and indirect violation of the First Amendment is not important, what is important is that they were willing to stand for a certain principle in defiance of the U.S. government based on principle. The request itself was likely legal as both Microsoft and Yahoo! complied to similar requests from the government. The obvious difference here and with requests from repressive regimes is that the request from the U.S. government was not backed by threat of legal sanction, it was a request for voluntary help. However, it seems to be a somewhat inconsistent position to argue that a company will not comply with such requests based on some principle while complying with requests that would violate the U.S. Constitution if made by the U.S. government.
• U.S. technology companies are at the forefront of web development and will play a significant role in shaping the future structure of the Net. (The "Code" to use Lessig's terminology.) This carries a heavy burden to make good faith efforts to see that the resulting architecture is in harmony with basic concepts of human rights.
• There are already limits on freedom to contract to the extent that we do not allow contracts that violate the constitution. For example, contracts for indentured servitude in violation of the 13th Amendment cannot be made. That is, they will not be enforced by U.S. courts. While contract to do business overseas would be under the jurisdiction of other governments, it is somewhat analogous to suggest that U.S. companies should not be able to enter into these types of contracts to do business (if the contract violates the U.S. constitution).

Why U.S. Technology Companies Should Just "Stay Out"

• The choice by U.S. technology firms to enter into these markets necessarily represents a political statement.
  • United States policy should be internally consistent. If the United States opposes the use of oppressive forms of government, it is hypocritical to allow United States companies to provide goods and services that facilitate oppressive censorship and surveillance by foreign governments.
  • The technology companies in question are just that—technology companies—and as such are not structured to accommodate or resolve the ethical problems that accompany entry into these markets.
    • Google’s corporate philosophy espouses faith in democracy on the web and international information flow, but doesn’t attempt to reconcile them with disparate states’ requirements for operation. See http://www.google.com/intl/en/corporate/tenthings.html
    • Cisco acknowledges human rights concerns, see http://www.cisco.com/web/about/ac227/about_cisco_corp_citi_human_rights.html, but their code of business conduct includes no relevant provisions. See http://investor.cisco.com/phoenix.zhtml?c=81192&p=irol-govConduct
    • Microsoft sticks to generalities and focuses on straight business policy in its corporate citizenship statement. See http://www.microsoft.com/about/corporatecitizenship/default.mspx
    • Nortel has a very general statement on corporate citizenship and code of business conduct. See http://www.nortel.com/corporate/community/ethics/guide.html
  • The “Move to the Middle” in internet regulatory strategy means that censorship and surveillance are becoming more effective, so the need to oppose them is becoming even more urgent.
• No acceptable means of regulating business in oppressive regimes is currently available.
  • Industry self-regulation has a great deal of conceptual defects.
    • Incentives: Unless social awareness of these problems is dramatically raised and consumers have the opportunity to make choices through which substantial market pressure is applied to these companies, they have little incentive to self-regulate. Moreover, the lack of transparency as to the details of their foreign dealings makes it unlikely that any such companies will develop a negative domestic reputation, let alone have that reputation translated into monetary incentives.
    • Enforcement and Monitoring: The possibility of a common industry code has been proposed, but without any legal or market pressures to publicly adhere to the code, individual companies competition with one another lack the incentive to join it. Even those who do claim to adhere will have incentives not do so completely or rigorously, and monitoring compliance would be costly. Also, the very conception of such an industry code is itself problematic, as any set of proscriptions detailed enough to achieve the desired effect would be eschewed by the industry.
  • Legal regulation in the form of second-order statutory enactments is problematic as well.
    • Second-order regulation may actually result in a worsening of the oppressive policies of foreign regimes. Proposed regulations have been framed in terms of limiting corporate cooperation with foreign censorship and surveillance to explicit requests made by official authority. Such policies do nothing about civil liberties violations that are backed by official authority and actually would put pressure on softer, more informal regimes to institute more substantial official and procedural methods of oppression.
    • No matter how you slice it, it’s hard to define statutorily what kind of activities should be prohibited. Internet regulation is complex; according to Lessig, it takes place through law, code, markets, and norms, and it’s often difficult to understand exactly how the products provided by various types of technology intersect with those modes of regulation in foreign markets.
      • Censorship and Surveillance each can be used in both oppressive and beneficial ways, so attempting to legislate based on these broad types of internet regulation is futile.
      • The “Oppenheimer” problem of dual technology makes it difficult to tailor legislation to the type of technology in question or the use to which it is to be put.
      • The type of regulation practiced by foreign regimes is often difficult to ascertain, so legislation based on the type of involvement undertaken by a technology company is also infeasible.
      • Because the nature of the products and services provided by this industry changes so rapidly, virtually any legislative categorization is likely to rapidly become obsolete.
• The modified technology products that U.S. companies offer in order to comply with the requirements of foreign oppressive regimes cause more harm than good in these emerging markets.
  • The sudden entry of U.S. technology firms in developing foreign markets curtails the opportunity for these markets to develop their own technologies. Staying out would spur technological innovation as well as economic development in these countries, and it would also allow at least some segments of the market or population to develop a first-hand appreciation for the democratizing potential of the internet.
  • The provision of modified services is not necessarily better than the provision of no services at all. While staying out of these markets preserves their potential for internal development and innovation, products such as google.cn simultaneously promulgate a distorted impression of the cyberworld and eliminate the apparent need to explore such technologies.
• The economic gains of entering into business in oppressive regimes are not worth the cost of the civil liberty sacrifices they require. Even one incident like the Chinese journalist jailed after Yahoo! complied with government surveilance requests is one incident too many.

Methods of Enforcement

• Ideally, U.S. companies would voluntarily agree to stay out of oppressive regimes. This would be facilitated if government and NGO actors promote dialogue between U.S. companies that could then use their collective wieght to influence authoritarian regimes.