Debate 3-Argument Against the Resolution

"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."

Summary -- Arguments against

• Our argument against the resolution can be summarized as follows
• "oppressive regimes" and "human rights" are subjective terms, both historically and currently.
• "oppressive regimes" and "human rights," even on an objective scale, have fluctuated both worldwide and within the United States
• Isn't the United States even currently an "oppressive regime" on some scale, and doesn't it also allow "human rights" violations on its own soil?
• Free markets and consumer education should address political elitism; government regulation has no place here
• Advancements in human rights are not the preordained outcome of a scenario where US companies stay out of "oppressive regimes"

PART I: UNITED STATES CIVIL LIBERTIES HISTORY—HOW CAN WE COMPLAIN ABOUT OTHER NATIONS (particularly developing or third-world nations)?

• What are “civil liberties” and who defines them? What makes the United States the authority on these matters?
  • There is no debate that free speech and political association—incorporated in the 1st Amendment, are near and dear to the United States
  • Yet these and other liberties have changed with time even inside the United States
    • This is not necessarily a Act
    • Compare the US to Germany
      • US: filtering free speech “yes;” banning “no”
      • But are we outraged at a ban on Nazi propaganda in FRA and DEU? (Apparently only to “die-hard civil libertarians” per Zittrain and Palfrey)
  • Education, segregation, and Brown v. Board of Education were not significantly addressed for 100 years after the 14th and 15th Amendments.
    • Even then, Brown and its progeny were handed down when the United States was the laughing stock of the Western world
    • Our post-Brown society is hardly non-discriminatory; should the EU ban private countries from trading or supplying services to us?
  • Textualist and originalist interpretations of “fundamental rights,” focused on the Bill of Rights, only gave way to broader “substantive due process” rights in times of stability.
    • Contrast the fall of economic substantive due process in the post-Lochner New Deal era with the rise of individual rights substantive due process in the Warren Court
    • Speech, association, sexual orientation, and abortion have all become protected only in the aftermath of the economic juggernaut that is the post-1960’s United States\
  • Like many other rights, the right to freedom of speech, which includes the right to seek, receive and impart information, is not absolute. It can be reasonably restricted on the grounds of public order, health, morality, or the rights of others. For this reason, even corporations that are providing Internet services have to facilitate the freedom of speech, or of press, within such applicable limitations. For example, a corporation does not ignore its website being used for inciting terrorism, promoting genocide, spreading social hatred, selling slaves, or facilitating music piracy for that matter.
  • Even what the United States defines as morally enlightened would be deemed somewhat stunted by past and present civilizations and nations
    • Natural law?
    • If coexisting in time, the United States could justifiably bar certain works from ancient Greece that celebrated pedophilia
    • Is it not justifiable that countries desiring to balance individual rights vs. central governmental power in a different way than ours to do the same thing?
  • Freedom not only involves the freedom “to do” something, but the freedom “from” something
    • Property law and exclusion
    • Uniformity v. assault of ideas
    • Socialism v. democracy
      • “An everyday act of law enforcement in an authoritarian market looks like a human rights violation to a more liberal one”
      • Socialism offers less protection of free expression, but more protection of economic parity. If citizens balance in a different way than ours, is that wrong?
      • It is odd that we rile against socialist states performing the very functions of protecting the needs of the many over the needs of the few while we protect membership in such political parties here in the United States
      • Is it thus “OK” to hold such viewpoints only if the threat to United States policy and politics is small?
  • The United States has no problem, by GATT or otherwise, doing business with China and other countries on an economic basis
    • The GATT is relatively bankrupt of human rights requirements
    • Although GATS offers theoretically more, it is a voluntary and country-specific treaty
      • Both of those conditions were pressed by the United States before it signed on to GATS
    • If a country wants to utilize those conditions to avoid what it sees as a threat to political or societal stability, how can we complain?
  • Google and other private industries are just that…private.
    • Mission statements are not a basis for regulation and punitive measures (Cite: http://technology.guardian.co.uk/news/story/0,,1694294,00.html)
    • Making all possible information available to anyone with a computer or mobile phone
    • Is that really applicable even in the United States?
    • Perhaps we should focus on possible and leave it at that
      • There are technical precedents. In Germany, Google follows government orders by restricting references to sites that deny the Holocaust.
      • In France, it obeys local rules prohibiting sites that stir up racial hatred.
      • In the US, it assists the authorities’ crackdown on copyright infringements
    • The “enlightenment” of the United States regarding civil liberties is founded on and continues to focus on state action. The fear is generally of the state, not private actors
      • Brown v. Board of Education
      • Loving v. Virginia
      • Croson and Adarand contracts cases
      • 1st Amendment cases
      • Romer v. Evans
    • The Supreme Court finds that our Constitution reaches private parties usually only via the Commerce Clause; otherwise we utilize state police power
      • Heart of Atlanta Motel
      • Katzenbach v. McClung
      • Racism, sexism, and homophobia by the citizenry remain not only rampant but protected for the most part in the United States
      • How is the ambiguity and broad applicability of “public safety and welfare” (state police power in the United States) different than acts that “may jeopardize state security and disrupt social stability” (China)?
  • From both an historical and economic standpoint, the United States tolerates private trade with other nations despite their political or human rights agenda
    • Business is what allows the “fat” of philosophical discourse
    • Trade wars over universal norms (~ natural law) should be a real concern
    • Let private citizens fix the market if they perceive a deficit
      • Divestment from South Africa in the apartheid era was due mostly to political action and awareness campaigns by private citizens, not by the government (formal policies were not introduced until 1986—“piling on” to extant unrest and an AIDS epidemic)
      • If we want to stop Google, each citizen is free to stop buying Google stock, stop using Google or stop purchasing from its advertisers
  • Even a limited internet is better than no internet at all
    • China and other countries are simply outsourcing (Cite: Ibid)
    • Google.com, if available, may be blocked or filtered by the government’s own devices
    • Google’s filtered site still increases speed
      • Albeit not complete information
        • Notice is still given re: filter
        • Gaming, chatting, making friends, and business transactions are still possible—these are the high volume uses of the internet
        • Is it the blockade of elite diatribe that bothers us?
      • But a degraded search experience is almost as bad if not worse than an incomplete one
      • Who here surfed at 14.4?
      • Would we have the content if that standard were still in place?
    • Chinese bloggers, etc. are still receiving money from advertising
      • “[By] paying ad sense money to bloggers and other web folk in China, Google is getting independent financial resources to the most progressive members of Chinese society.” (Cite: http://savegooglefreechina.org/)
    • Even the United States monitors its citizens
      • Are we truly “free” on the internet?
      • Are we even truly “free” on the telephone?
    • If we can define a baseline level of information, such as national and local news, recreation, availability of services necessary to exist, then anything above that is just frosting on the cake
    • The effect of restrictions may be minimal in countries that can ill afford internet infrastructure

PART II: EVEN TODAY THE UNITED STATES IS FILTERING AND CENSORING; THE DEBATE IN OUR COUNTRY INDICATES CONTROVERSY, SO PUSHING OUR VIEWS ON OTHERS IS ARROGANT AND ELITIST (Palfrey and Zittrain Articles)

• What are we “enforcing?”
  • Again, what makes the United States the authority on morals, norms, utility, etc.?
    • International law and norms?
    • Natural law?
    • It seems legitimacy is in the eye of the beholder
  • Sex, commerce, culture, politics
    • The US regulates the first three
  • Political matter of “embryonic” growth gradually and inevitably into “enlightened,” but oftentimes varies or even explodes depending on factors such as economic or social distress, war, etc.
    • Political expression should thus be the real focus re: international debate
    • It is not as reprehensible to bargain away political expression
    • Our internal moral regulation of business is generally based on the free market
  • Even the end-to-end principle of net neutrality was and is regulated
    • At source: CDA, CAN-SPAM
    • On receipt: child pornography or copyrighted works
    • With rider: CAN-SPAM, COPPA
  • Shift even in the United States to “middle of the network”
    • Easier to identify and enforce; increased efficiency
    • Similar to expanding US Interstate Commerce Power to federalize business
    • Expansion of such regulation “in the name of public interest” is just another justification for the use of police power
    • Content-based filters and blocking +/- eavesdropping
      • Digital Millennium Copyright Act takedown provisions
      • CIPA & Library filters
        • Limitations of filtering technology results in extensive over-blocking of legitimate material.
          • Patrons seeking legitimate filtered material are forced to ask to have content unblocked. Patrons may be reluctant to ask, however, out of fear of being stigmatized.
          • Library terminals may be the only source of internet access for community members of limited means. As such, by deploying filtered internet terminals, these individuals may be denied the opportunity to fully engage the medium.
          • Pending legislation (Deleting Online Predators Act) would extend CIPA's reach to social networking sites.
          • Nevertheless, we've balanced the aforementioned shortcomings against a desire to shield children from offensive, “inappropriate” material.
            • Courts have found internet filters to be a suitable compromise. Indeed, CIPA was found to be constitutional, and continues to tie federal funding to deployment of filters on library terminals.
          • In essence, thusdebate turns on what sovereign entities, using cultural norms, values, and government objectives as a guide, deem to be “appropriate.”
            • Private entities (Google et al.) are forced to comply with our limitations and restrictions. Why don’t we accord the norms, values, and objectives of another sovereign entity the same level of deference/respect?
  • Enforcement on Private Corporations
    • Is assistance with filtering and surveillance really the “trickiest ethical problem?”
      • Oppenheimer
      • Hardware v. software
      • Flexible filtering
      • Alleged advantages of “free” internet
        • Technical innovation and competition
          • Bomb building?
          • Why copyright or patent, then?
        • Democratic culture
          • Really in the US?
          • Is sex, commerce and culture really blocked in China?
          • The focal point again becomes politics (elitist)
        • Prevent Oligarchy
          • Copyright and patent place “enlightenment” in few hands
          • Argument of “free internet” to prevent further distributional disparity smacks of wink-and-nod acceptance of piracy
  • How are we, and how can we, enforce?
    • Lessig: law, code, markets, and norms
    • We believe enforcement should be by the free market and business principles
      • Duty to shareholders
        • Growth of market volume or share
        • Transparency
      • Transparency is owed to shareholders, not to Zittrain and Palfrey’s “end-user”
        • My gasoline does not come with a body count
        • My shares of Exxon can, however, be voted or sold in protest
        • Codes of conduct are not really more accessible than a “Googling” American
        • Voluntary “internal” regulation
    • Attempts at more formal enforcement
      • General
        • Node Control—the First Wave (see end-to-end principle above)
          • Ban on Transmission of Packets at Their Source
          • Ban on Possession or Receipt of Packets
          • Encumbrances on Flow of Information in Packets
  • Transmission Control—The Second Wave
    • State Encouragement of Private Action to Block Packets
      • CDA
      • DMCA
      • CALEA “wiretap”
    • Direct State Intervention
      • Injunction via DMCA
      • State entity blockade—libraries
      • CIPA
    • Specific to our debate
      • GOFA
      • International law
  • It seems hypocritical to cry about civil liberties and individual freedom but demand state regulatory action rather than relying on individuals and markets
  • Human rights activists, academics, and shareholder advocates create public discourse and are the proper means of creating transparency and market pressure

PART III: EVEN IF UNITED STATES TECHNOLOGY COMPANIES STAY OUT OF THE REGIMES IN QUESTION, IT IS NOT AT ALL CLEAR THAT DOING SO WILL IMPROVE THE CIVIL LIBERTIES OF THE CITIZENS OF THESE COUNTRIES

• There are two different ways that those in favor of the resolution can frame the issue.
  • On the one hand, the "civil liberties" (I will assume for the time being that it is clear what this concept means) can be the focus. If it is, the argument would go something like this: American technology companies should distance themselves from countries A through Z because doing so would protect the civil liberties of the cititzens of those countries.
    • This would be a very powerful argument if it was true. However, this argument is fatally flawed for at least two reasons:
      • There is no reason to believe that if American technology companies pulled out of countries A through Z that foreign interests would not step in and fill the gap. Indeed, economic theory suggests that this is exactly what would happen. If this happens, civil liberties would be the same as they were before (or worse depending on who fills the gap) AND these US technology companies would be responsible for decreasing GDP (or GNP depending on what is being sold) since they have reduced USA's share of global technology business. In short, civil liberties are unaffected and we are economically worse off. (The economic impact is likely to be minor, but it nonethelessis worth noting).
      • Let us assume for a second that the United States is the only country in the world that can meet the demand for internet related technology and services in these countries. If this is true, and American companies pull out, those in favor of the resolution would have to argue one of two things. On the one hand they could argue that the governments of these countries will consider an "internetless" society to not be an option and accordingly will give into America's demands and provide unrestricted (or much less restricted) access. Given how important filitering is to most of these countries, this is almost laughable. On the other hand, those in favor of the resolution could argue that these countries will resist the United States and--if these American companies stick to their guns--have no internet for a while. The argument continues by advancing that the citizens of these countries (and perhaps foreign interests) will apply enough pressure to make these governments give in. Today foreign interests encourage many of these countries to provide less restricted access and it does not seem to be having much of an affect. Moreover, given the sheer strength of these governments, it is not at all clear to me that the citizens would win this battle any time in the foreseeable future. To the extent that this is accurate, restricted internet access is much better than no internet at all.
        • We also cannot forget that if American technology companies do not pull out of these countries, they can use their expertise, competitive advantage, and market dominance to slowly encourage the leaders of countries A through Z to loosen internet based restrictions. This challenges the argument that things will stay the same indefinately if American companies stay in these countries (more on this later).
  • On the other hand, the focus can be on the collective conscience of the American people. In other words, the argument might be: The civil liberties of the citizens of countries A through Z are heavily constrained and, aside from ousting the current governent (and it is not clear that this would work for certain), there is little that the American people can do to change that. However, at the very least, we can take pride in the fact that we are not at all responsible for the curent situation.
    • If the focus is on "us" rather than "them", and it seems to me that if we really consider the resolution this is the case, albeit selfish, the argument is more difficult to rebut. That is to say, we were focused on our feelings and at the end of the day, we feel better...mission accomplished! However, shouldn't the focus be on how they feel and what they get, not on how we feel and what we get?
      • Knowing that American companies are not "profiting off of the misfortune of citizens of other countries" may make Americans feel better no matter what happens. However, it is almost certainly the case that pulling out of these countries does nothing to improve the position of the people who really matter in this instance: those whose "civil liberties" have been deprived.
        • If foreign interests fill the void that is left by American companies pulling out, we might feel better about ourselves, but the rights of the citizens of these countries remain unchanged (and could become even more restricted if they wrong people pick up the slack that American companies have left behind). In this case, how Americans feel should not be the focus. American technology companies should be focused on using their expertise, competitive advantage and market power to expand the number of people in the world who have near unfettered access to the internet in a manner that is quick yet respectful of the fact that the American way of thinking is not the only way of thinking. There is nothing wrong with using influence to get others to come around to one's way of thinking. Yet, there is something wrong with simply saying my way or the highway. Just walking away because Americans are of the opinion that things are not perfect in these countries may make us feel better but it does nothing to improve the position of those less fortunate.
        • If American companies pull out of countries A through Z, and foreign interests do not fill the void left by American companies, chances are that the citizens of these countries will be left with no internet at all. It is possible that this might produce an environment that is so volitile that the citizens revolt and eventually get unrestricted internet. However, it is not at all clear to me that the United States should be the body determining under what conditions the people of Thailand, for example, get internet access just because exercising that power allows us to distance ourselves from the problem and concomitantly feel better. To make matters worse, American companies would be pulling out in hopes that doing so creates political unrest in a foreign country which almost always seems like a dubious objective if for no other reason than it assumes that our belief system is superior to that of the countries in question.
• At the end of the day, if American technology companies pull out of the countries in question, the American people may feel better about themselves. However, the citizens of the countries in question are either going to be the same as they were before or even worse off. It is selfish and elitist for American companies to pull out of these countries in hopes of making Americans feel better when they can stay and slowly implement change in a way that respects the legitimacy of foreign governments.

Brief Reactions To Class Discussion - By One of Three

• The alleged overemphasis on US "Dirty Hands" (complaint over the breadth of coverage of US past and present civil liberty/human rights behavior)
  • Our opponents raised this issue when they chose the US Constitution as a possible standard for a "human rights absolute minimum;" we reacted to this choice
  • Part of this reaction was to discuss Constitutional legal theory and use examples of interpretations re: human rights throughout our history
  • Another LARGE part of the discussion centered not on "dirty hands" but on how Constitutional interpretation re: human rights
    • varies along a continuum depending on the economic or political stability of the times
    • varies along a continuum even today (i.e. PATRIOT Act, etc.)
    • rightfully varies along this continuum re: certain civil liberties, such as privacy or absolute freedom of speech
      • this balancing act originated at the ratification of the Constitution and Bill of Rights
      • this balancing act continues to this very day and is not "dirty hands" but reflects US balancing of security with individual rights
    • varies along a continuum in other countries
      • other countries such as China may balance differently then the US, and are justified in doing so
      • individual rights come at a real $ cost; poor countries may not be able to afford to extend such rights to include those that we in the US would take for granted
      • increasing wealth may (but does not necessitate) increasing individual rights
        • China is relatively new to the unrestricted marketplace; new to the WTO.
        • If they accumulate wealth and, after modernizing infrastructure, fail to liberalize individual rights, let's talk
        • This author remains committed, however, to the idea that economic prosperity and not economic isolation brings change
      • "who are we to judge" is not necessarily a question based in "dirty hands" equitable analysis, but one based in an analysis of what constitutes an acceptable worldwide continuum of balancing AND the idea that the balance struck in the US may at this very moment be villified by more "liberal" thinkers (and indeed is)

• Our focus on economic analysis is "problematic"
  • "who are we to judge" is also grounded in the GOAL of the subject at hand, which is US trade (of services) with other countries
  • The subject of the debate (the resolution) is a discussion of private business relations with foreign countries. It is not "should the US take the lead, independent of trade, in fighting for human rights in the world."
    • This could have been the discussion, but that discussion would have been unfocused, non-specific, and filled with words such as "problematic"
    • This author hasn't enough time to address the latter question (US taking the lead), but likes to think he is open-minded about it
    • This author is skeptical, however, that any "lead" by the US could be portrayed as one void of economic gain to the US (whether by primary or secondary means)
      • He isn't alone here
        • every single person who rants against the Iraq War as a war of "blood for oil" agrees with him
        • there is a silent throng who also agree, but because they realize economic gain (and hence they are shrewdly silent)
        • if the majority of US citizens think that we are in Iraq simply to "do good" by fighting terrorism, even they agree (terrorism results in economic loss and forces redistribution of resources away from...civil liberties! as well as consumable goods (guns for butter))
  • The Foreign Corrupt Practices Act of 1977 is anything but an example of the US going "non-economic"
    • It was a response to perceived rampant bribery of foreign officials by US corporations
    • The intent of the FCPA was not simply to stop bribery because bribery is "bad," but because it hurts US businesses in the long run
      • "But not only is it unethical, it is bad business as well. It erodes public confidence in the integrity of the free market system. It short-circuits the marketplace by directing business to those companies too inefficient to compete in terms of price, quality or service, or too lazy to engage in honest salesmanship, or too intent upon unloading marginal products. In short, it rewards corruption instead {5} of efficiency and puts pressure on ethical enterprises to lower their standards or risk losing business. Bribery of foreign officials by some American companies casts a shadow on all U.S. companies. The exposure of such activity can damage a company's image, lead to costly lawsuits, cause the cancellation of contracts, and result in the appropriation of valuable assets overseas. You can read the House and Senate reports here FCPA legislative history
      • Recall that 1977 was the peak of the "energy crisis," inflation, and stagnation in the stock market; news reports on corporate chicanery were devastating to the marketplace