Gatt Article Viii
Gatt Article Viii
The Great Firewall of China: Corporate Codes of Conduct as a viable means to lift Information Curtain
Earlier this year raised U.S. Secretary of State Hillary Clinton to China, condemned strictly rigorous censorship of the Internet in China, and promised to help Chinese citizens tear down the "Great Firewall of China". Observations of Secretary Clinton that "we stand for a single Web where all humanity has equal access to knowledge and ideas" sounded stern tone in Ronald Reagan 20 years ago when he challenged Soviet leader Mikhail Gorbachev: "Mr. Gorbachev, tear down this wall!"
Fast forward to 2010 where digital walls have replaced Soviet-era "brick and mortar" to divide the oppressed citizens of authoritarian regimes from the world's free-flowing stream of information and ideas. Since Secretary Clinton's visit to China, the State Department brought the issue of online freedom to take the lead in its diplomacy around the world and ended with Internet providers and social media companies to create a public-private partnership in Internet freedom. Such cooperation is key, because authoritarian regimes so often outsource daily work of censorship for private companies. But it may not be enough. Alternative Solutions in the U.S. domestic laws and international trade law has fallen short pose a viable challenge Digital censorship in China. Ultimately, the voluntary corporate codes of conduct be the only viable force to bring down the Great Firewall of China.
What the Great Firewall of China?
Over sixty laws and regulations have been adopted by the Chinese government to censor and restrict access to the Internet. [I] These laws and regulations are implemented and enforced in a comprehensive and sophisticated system known as the "Great Firewall of China."
"Great Firewall of China "is a complex matrix of filters, censors and barriers that govern the flow of online information within the People's Republic of China. The matrix officially known "Golden Shield Project," consists of both technological and human elements that work together to create a distorted version of Internet-one without any the information the government does not want its citizens to see.
Four key elements make up the Great Firewall of China:
IP Blocking – The government can block a unique computer address if it is hosting prohibited content.
Keyword Filtering – the government monitors all international Internet gateways and block specific sites based on keywords and content that is matched against a "blacklist".
Self-censorship – Government requires all Internet companies operating in China to self-censor their content or face stiff penalties and possible closure if they fail to do so.
Enforcement – it is estimated that some 30,000 Chinese "Internet police" monitor Internet traffic and blocking forbidden content.
This comprehensive system can block the entire site, individual pages, and even up-to-the-minute search results, which are constantly changing in response to flowering Global news and events.
While the Chinese government identifies broad categories of prohibited content, the rules are far from conclusive, leaving much of the ambiguity about what is off-limits. Without any guidance or official statement about why something may have been blocked, companies operating within China often err on the side of caution and care erase anything that could bring them out of favor with the government. This is one reason why Google left the country earlier this year. Given the oppressive unpredictability and gross inequalities in China's Internet censorship regime, many attempts have been made to limit its effect both in the U.S. and internationally.
Legal Challenges to the Great Firewall of China
The U.S.
Difficulties arise when U.S. Internet companies venture into foreign markets to reach millions of additional Internet users. In the case of China, companies that want to provide Internet services in the country be subject to all laws and regulations of the Chinese authorities. Because most of these provisions are contrary to the liberal approach to Internet regulation can be found in the Western States U.S. companies caught in a vise-grip between the demands of the Chinese government and the marked dissatisfaction in the U.S. government and human rights organizations. Most Popular examples of companies that are caught in this grip is the U.S. software giants Google, Microsoft, Yahoo and hardware maker Cisco Systems. Microsoft and Yahoo both censor results their Chinese-language search engines, to varying degrees by removing politically sensitive content from search results. Google has left China earlier this year, but recently extended his license by the Chinese government. Search giant does not make any concessions with respect to censorship for now. For his part, the Cisco Systems has been accused of supplying the Chinese Government with some of the hardware used to build the Great Firewall.
The tension between China's strict Internet censorship regime and the U.S. decidedly hands-off approach to the internet, got the U.S. Congress to consider adopting a statute to promote free speech on the Internet: Global Online Freedom Act]. [Ii The primary purpose of the Bill is to establish an Office of Global Internet Freedom empowered to draw up a list of "Internet-restricting countries." The bill is intended "[t] o prevent U.S. companies from cooperating with repressive governments in transforming the Internet into a tool of censorship and surveillance, meet the responsibility of the United States government to promote freedom of expression on the Internet, to restore public confidence in the integrity of U.S. firms and to other purposes. "[iii].
Section 201 of the Act states that an "American company that creates, provides, or hosts any Internet search engine or maintains an Internet content hosting service may not locate within a designated Internet-restricting country, [materials] involved in supplying such Search Engine or content hosting service. "Under the law, Internet companies are also prohibited from changing their search engines to produce different search engine results for users to access the search engine from different countries. [Iv] Although the bill is unlikely to be adopted for a multitude of reasons, it nevertheless suggests a promising American tendency to seek innovative legal solutions to put an end to digital censorship in China.
Other legal innovation recently employed in U.S. to chisel away at the Great Firewall of China is the Alien Tort Claims Act (ATCA). The ATCA provides a private cause of action for aliens for torts committed in violation of the law of nations or a treaty of the U.S. [v] In April 2007, the US-based NGO World Organization for Human Rights "filed a major lawsuit in a U.S. District Court against Yahoo! based on the Alien Tort Claims Act, accusing the Internet Corporation aiding the Chinese authorities to arrest and torture of a Chinese journalist. [Vi]
According to the complaint showed Yahoo! at the request of the Chinese authorities, the name of the journalist who was using a Yahoo! Internet account to convey his calls for democracy in China. Using the ATCA could add some pressure on ISPs to show more respect towards basic human rights and democratic norms of freedom of expression. But given the Supreme Court's recent tendency to reduce the use of ATCA remains [vii] that it is uncertain whether new claims brought under the Alien Tort Claims Act would exert a meaningful pressure on China to reconsider its current system of Internet censorship. While the U.S. continues to develop alternative ways to solve Internet regulation in China, some compelling arguments made at the international level.
International Trade Law
Many in the international community argues that China's firewall is a barrier to market access and violates international trade law. The main thrust of this argument is that the Chinese government is using of the "Great Firewall" as a tool for online protectionism by systematically exclude foreign suppliers in favor of domestic services. That is why, for example Google's search engine is squeezed out of Baidu that come with Ren Ren Wang, and Youtube on Tudou and Youku.
Although there may be some challenges in with audio-visual media content under the General Agreement on Tariffs and Trade (GATT), the more logical approach is relevant to search engines and social networking services would be to challenge the practice under the General Agreement on Trade in Services (GATS). But since the crucial structural differences between GATT and GATS, the arguments is far from straight-forward. [Viii] One of the most difficult challenges to overcome for filtering of online content by the Chinese government is the General Exceptions clause in Article XIV the GATS. Unless the contested measure is a means of unjustifiable discrimination GATS could not be invoked to prevent the adoption of laws that are "necessary to protect public morals or maintain public order. "It is possible that a challenge to the measure could prevail under the WTO if it is shown that there exists a reasonably available alternative that is less restrictive.
While there are valid points to challenging the Great Firewall of China in the WTO context, the incendiary Political fallout from bringing such a requirement would undoubtedly fuel a trade war unprecedented. Given the political instability of such an approach must other, less confrontational solutions considered. Corporate codes present such an alternative.
Corporate Codes of Conduct a viable means to Challenge Digital Censorship in China
Corporate codes of conduct play an important role in the collapse of apartheid in South Africa and is a useful means to end digital censorship in China. [Ix] Clinton's Secretary comments on "information curtain" dividing the world, reflecting the injustices of the apartheid era, how much more injustice and unspeakable acts against humanity was challenged and ultimately overcome by the use of corporate codes of conduct.
These corporate codes of conduct that came to be known as the Sullivan Principles were developed by the African-American pastor Reverend Leon Sullivan, a zealous advocate of corporate social responsibility. [X]
In 1977, Rev. Sullivan, board member of General Motors. At the time, General Motors one of the largest corporations in America. General Motors also happened to be the largest employer of blacks in South Africa, a country which followed a harsh program of state-sanctioned racial segregation and discrimination directed primarily against the country's indigenous black population
Corporate Codes of Conduct originally developed for the Challenge Apartheid
Rev. Sullivan developed codes to apply economic pressure on South Africa in protest against its system of apartheid. By the end of apartheid South Africa, the principles were formally adopted by more than 125 U.S. companies with operations in South Africa. [Xi] Of the companies which have formally adopted the principles manycompletely withdrewtheir existing activities from South Africa. [Xii] The principles eventually became widely adopted by the United States-based companies and played a significant role in the collapse of the South African regime. In considering the success his anti-apartheid efforts, recalled Rev. Sullivan:
Starting with work, I tightened the screws, step by step, and raised bar step by step. Gradually I got to the point where I said that companies must practice corporate civil disobedience against the laws, and I threatened South Africa and said in two years Mandela must be vacated apartheid end, and blacks must vote or else I would bring all U.S. company I can out of South Africa. [Xiii]
Given the success of the Sullivan Principles in ending apartheid, we should look at applying the same principles to lift the information curtain in China.
Why multinationals Should adopt Corporate Codes of Conduct
Google, its credit, has pioneered the corporate governance code motion. Google spite of China's censorship office shows strength of corporate social responsibility initiatives to influence and reshape the repressive policies authoritarian regimes.
While most large multinational companies consider a presence in China crucial to their future success, Google has shown that even the largest companies are willing to forego short term gain for the sake of a ultimate triumph over censorship similar to how firms sacrificed profits to challenge apartheid in the 1970s and 1980s. In Google's case, this will come to a price estimated at 300 million U.S. dollars annually in revenue. [Xiv] Although it is unlikely to make a dent in Google's coffers, it is a step in the right direction.
Conclusion
Companies adopting codes of conduct must be united and patient in their approach. The challenge now will be to put these ideas into practice by incorporating them in diplomacy and trade policy. Doing this will apply meaningful pressure on companies to act responsibly by adopting corporate codes of conduct with regard to their China operations. Press China to open the Internet to its people and allow freedom of expression will not happen overnight. Actually, the Chinese experience with the Internet is still in the early stages of development. Like the Great Wall of China was an ancient relic of bygone times, the Great Firewall of China will one day become one, too.
[I] These laws do not apply in Hong Kong and Macau, which has been designated as special administrative regions not covered by most laws of the People's Republic of China, including restrictions on freedom of information flow. HK Basic Law, ch. II, art. 8, 9
[Ii] Global Online Freedom Act, HR 2271, 111. Cong. (2009-2010). This bill is in the first stage of the legislative process. It has been referred to the House Foreign Affairs Subcommittee and the House Energy and Commerce subcommittee.
[Iii] HR 2271 Preamble
[Iv] Section 203, HR 2271st
[V] 28 USC ยง 1350 (2006). The ATCA provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only committed in violation of the law of nations or a treaty of the United States. "
[We] Wang Xiaoning against Yahoo! Inc., No. C07-02 151 K (ND Cal. Apr.18, 2007). Under international pressure, settled Yahoo! trial. In a written statement, said Yahoo would provide "financial, humanitarian and legal support to these families" and create a separate "humanitarian relief fund" to other dissidents and their families. Yahoo settles with Chinese families, Wash. Post, 14 November 2007.
[Vii] See Sosa v. Alvarez-Machain et al. 542 U.S. 692 (2004). In Sosa, the U.S. Supreme Court warned against liberal expansion of the ATCA beyond the original scope of violations envisaged when the adopted in 1789: "[W] e are convinced that federal courts should not recognize private claims under federal common law for violations of any international law norm with less tangible content and acceptance among civilized nations than the historical paradigms familiar when section 1350 was adopted. "Id. At 732-33. In this historical context, the Court struck a balance and set a standard that is recognized for development of international law and a modern framework for determining whether a tort action constitutes a cause of action. The framework includes four features that approximate the reflections used in 1789 to establish a private right of action: universality, obligatory nature, specificity and prudential considerations.
[Viii] The primary structural difference between GATT and GATS is that GAT applies to all categories of goods except those that a member expressly excluded, while the GATS, they are obliged only to the sector-specific commitments that they choose to undertake. For example a member may accept GATS commitments on cross-border supply of data processing services, but make no similar obligations in relation to financial services.
[Ix] Corporate codes of conduct have also been proposed to take the international environment. See, eg. Santiago A. Cueto, Oil's not well in Latin America, cure defects of international environmental law regime in Solving Industrial Oil Pollution Through Corporate Codes of Conduct 11 Fla. J. Int. 'L Law 535 (1997).
[X] Richard L. Herz, 21 Harvard Human Rights Journal 207, 224 on the liberalizing effects of tort: how Aiding corporate liability under ALIEN TORT STATUTE ADVANCES constructive engagement
[Xi] Cristina Baez, et al. Multinational companies and human rights 8 U. Miami Int'l & Comp. L. Rev. 183 of 327
[Xii] John G. Scrivens, 16 Transnational Lawyer 153, 163 Corporate Responsibility and regulation of the global enterprise.
[Xiii] Kevin McNamara, The MacBride Principles: Irish America Strikes Back (2010), footnote 30
[Xiv] Miguel Helft, For Google,. A threat to China With Little Turnover at stake, the New York Times, January 15, 2010 at A-10
About the Author
About the Author: Santiago A. Cueto is founding partner of the Cueto Law Group, P.L. His practice includes complex litigation in federal and state courts. He is currently the lead attorney in a class action lawsuit against two of the world’s largest Internet domain name providers. The case has been featured in The National Law Journal, the ABA Law Journal, CNBC, Forbes and PC World magazines. Santiago may be reached by email at sc@cuetolawgroup.com.