Debate 3-Argument for the Resolution

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Debate 3-Argument Against 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."

  • Companies should not be allowed to conduct business abroad in ways that would be considered unacceptable civil liberties violations in the United States.
  • The entry of U.S. technology companies into foreign markets under authoritarian regimes has led to shocking indidents of such violations.
  • Efforts to draft government controls or industry standards to guide the responsible participation of U.S. technology companies in these markets have not provided any satisfactory regulation.
  • Unless and until adequate regulations are in place, U.S. technology companies should stay out of these regimes.

General Ideas

  • A standard for what constitutes a violation of human rights in this context must be established
    • Ideally, this will be based upon private initives such as the Voluntary Principles
    • The Universal Declaration of Human Rights
      • Can serve as a model and guide in developing private inititives.
        • Private companies should be willing to tailor these principles to their needs.
        • Particularly due to the collective bargaining strength of large US firms they can try to utilize their influence to go beyond the Declaration where appropriate.
      • Is particularly attractive as a standard because of the number of signatory states and UN backing.
    • While basing the standard on the US Constitution may be appealing in some regards, the more universal nature of the UN Declaration makes it more realistic for this application.
  • 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.
    • The Chinese government relies on self censorship to further their goals. Self censorship is more effective than centralized censorship; they need cooperation from U.S. companies to keep doing what they are doing.
  • 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 do not want to participate in human rights violations; adopting the resolution will lead to more voluntary collective action on the part of these companies to allow them to maintain market share while protecting human rights.
  • 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).
  • There us likely a trickle down effect to other countries influenced by regionally dominant regimes that filter. (Palfrey and Zittrain)
    • Many small oppressive regimes rely on countries like China to help them with their own censorship and surveilance.
    • Opening doors for more expression in a key authoritarian states will effect other states.
    • This is particularly important as it increases the potential impact of the collective bargaining power of U.S. companies to the extent that more U.S. companies are involved in key markets but their influence there may be felt outside as well.
    • Though somewhat more tenuous this may even have an impact on states with extremely high levels of control that ban the internet all together. China likely has the greatest influence on North Korea: opening the Net in China could indirectly lead to reform in North Korea. (The same could be said of loosening restrictions in some countries in the Middle East.)

Case Study: China

  • The Net is not the same Net if you are in China.
  • China employs a variety of tools to further its goals of censorship.
    • Selective filtering--connections from universities are more heavily filtered. Impressionable university students are thus one of the most highly restricted classes of people when it comes to access to foreign sites.
    • The government agency in charge of censorship recognizes companies that excel in self censorship; trying to create a culture that reinforces their goals.
    • Random filtering. Sometimes it is difficult to know what is filtered and why--this pushes users to local options such as Baidu where the results are more consistent.
    • The Chinese government intentionally slows down access to U.S. search engines on occasion in order to push users to Baidu.
    • The blocking of Google.com in 2002 for two weeks was likely prompted by action from Baidu. See Google's China Problem (and China's Google Problem), pp. 3
  • The Chinese are using the structure of the internet (the "code" to use Lessig's terminology) to reinforce and the political culture they have created. It is inaccurate to say that they (or any other repressive regime) are just giving the people what they want. The very architecture of what is accessible becomes part of what dictates what people "want."

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. Ideally, companies would recognize the political message their provision of such goods and services conveys, and they would take responsibilty for operating in a manner consistent with American values. More realistically, however, second-order government regulation is probably necessary to ensure that such choices are made. If they ultimately contributes to expanding worldwide democratic freedoms by weakening the ability of foreign regimes to exert control over their citizens, then the minor--and hopefully temporary--economic limitations of second-order regulations on U.S. technology companies are worth it.
    • 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.
    • 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.
      • Example: Microsoft provisions discussed by Zittrain & Palfrey. Transparency and Formalism only change how censorship and surveilance are conducted without confronting the real problem.
      • 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.
      • Example: wide criticism and failure to pass the Global Online Freedom Act (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:h4780ih.txt.pdf).
      • 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 weight to influence authoritarian regimes.
    • Government and non profit groups can act as intermediaries to facilitate communication and cooperation amongst US companies.
    • Industry regulation can respond more quickly than government solutions. (Palfrey and Zittrain)
  • Likely the solution will be a combination of government and private efforts.
    • Codify industry standards (Palfrey and Zittrain)
    • Government can also bring other pressures (trade and diplomacy) to aid in the effort.

Some Responses

  • The argument that US can't complain other nations since its own civil liberty history is disgraceful doesn't make any sense.
    • “civil liberties” have become (if not have been) a generally accepted concpetion and was widely defined in constitutions of most countries (even in China) as well as in international conventions. The real questions is not whether or not to honor them or how to interpret them, instead, is how to ensure the promise was kepted.
    • The States may be not on the moral high ground on several issues as it contested, but it is on this one. Even countries practicing filtering and surveillance are either trying to legitimating their acts by fooling around with the definitions or by claiming a greater value. But the value of "civil liberties" itself is almost unchallengable.
    • The restatement of American history by our counterpart at least loosely touched the point that our history is evolutive. It will then be ridiculous to justify any illegitimagte modern conducts from a historical value.
  • Illusions of "Business is business" and free market
    • The idea that we leave technology companies doing there own business is just too simple to be true. If technology companies can assist Chinese government supressing free speech, why are we still prohibiting ammunition trade with China?
    • It has been widely accpeted that corporate social responsibility is a correction of profit-maximazing business model.
    • Criticizing human rights abuses on one hand and doing nothing to stop US companies getting involoved is like holding a practical double standard for business, which will cheapen the value of civil liberties and do harm to any efforts made by the US to promote human rights worldwide.
  • All the examples in U.S., France and Germany raised by our counterpart are not sufficient to show sacrifice of civil liberties. Lack of due procedure and transparancy are main characters of Internet regulations by suppressive regimes. What techonology companies are sacrificing are indignity of citizens, procedural justice, and freedoms that were protected by imperfections of monitoring techonologies.
  • "A limited Internet" is better than "no Internet"?
    • The statement would be very powerful if it is true, but again, it can be proved as misleading.
    • As Lessig discussed in his book Code 2.0, infrastructure inteacts with norms, market and law. "A limited Internet" is by no means a 80% Internet or 60% Internet, it is a totally different Internet. The infrastructure of "a limited Internet" will make those suppressing governments extremely powerful and capable to moniter its citizens than it could ever before.
    • "No Internet" at all might be an option for some countries (like North Korea, basically becasuse of their close market), but can't be an option for a country like China. As Chinese government is trying to shift to a market economy desperately keeping a high growth speed, it will be a disaster if the government choose totally abandon Internet. No decision makers can afford to do this. So the true question is how limited the Internet can be. In this way, those US companies actually assisted Chinese government to design a Internet fit its desire.
  • The argument that US companies staying out might not be helpful is missleading in several ways:
    • Countries like China chose to cooperate with US techology companies not becuase they want to make Americans "look bad", but simply becuasue either they can't develop a certain techonology or it's cheaper to buy from US, also, US companies must be economicially competitive in this aspect than its rivals. So the idea that if US companies pull out, others will just "fill in" is probably not the case. Either there might not be substitiutes, or it will be more expensive for Chinese government. In this way, staying out is helpful for sure.

Outside Resources

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