Special C                                                                                                          HINA Is...
sue                HINA Is     Special C                       The International Law Quarterlymost popular examples of com...
Special C                                                                                                                 ...
sue                  HINA Is      Special C                            The International Law Quarterly4 Id. § 203.        ...
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Digital Censorship and the Great Firewall of China


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This article demonstrates how corporate codes of conduct developed in the apartheid era are a viable means to lift the information curtain in China.

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Digital Censorship and the Great Firewall of China

  1. 1. Special C HINA Is The International Law Quarterly sue Digital Censorship and the Great Firewall of China Corporate Codes of Conduct a Viable Means to Lift the Information Curtain By Santiago A. Cueto, Coral Gables Earlier this year, What is the Great Firewall This elaborate system can block U.S. Secretary of China? whole sites, individual pages and of State Hillary even up-to-the-minute search results Over sixty laws and administrative Clinton traveled to that constantly change in response to regulations have been enacted by the China where she unfolding global news and events. sternly condemned Chinese government to censor and While the Chinese government strict Internet cen- limit access to the Internet. These identifies broad categories of prohib- sorship in China laws and regulations are implement- ited content, the rules are far from and pledged to help ed and enforced under an elaborate clear, leaving a great deal of ambigu- S. Cueto Chinese citizens and sophisticated system known as ity about what is off limits. Withouttear down the “Great Firewall of the “Great Firewall of China.” any guidance or official statementChina.” The remarks of Secretary The “Great Firewall of China” is about why something may have beenClinton that “we stand for a single a complex matrix of filters, censors blocked, companies operating withinInternet where all of humanity has and barriers that regulate the flow of China often err on the side of cautionequal access to knowledge and ideas” online information within the People’s and diligently delete anything thatechoed the stern tone of Ronald Republic of China. The matrix, of- may bring them into disfavor with theReagan twenty years ago when he ficially known as the “Golden Shield government. This is one of the reasonschallenged Soviet leader Mikhail Project,” is comprised of both tech- Google exited the country earlier thisGorbachev: “Mr. Gorbachev, tear nological and human elements that year. Given the oppressive unpredict-down this wall!” work together to create a distorted ability and gross inequities of China’s In 200 digital walls have replaced version of the Internet—one without Internet censorship regime, manySoviet-era “bricks and mortar” to all the information the government attempts have been made to limit itsdivide repressed citizens of authori- does not want its citizens to see. effect both in the U.S. and interna-tarian regimes from the world’s free- Four key elements make up the tionally.flowing current of information and Great Firewall of China:ideas. Since Secretary Clinton’s visit IP Blocking—The government Legal Challenges to Greatto China, the State Department has can block a unique computer ad-brought the issue of online freedom dress if it hosts prohibited content. Firewall of Chinato the forefront in its diplomacy The United States Keyword Filtering—The govern-around the world and joined with Difficulties arise when U.S. Inter- ment monitors all international In-Internet providers and social-media net companies venture into foreign ternet gateways and blocks specificcompanies to forge a public-private markets to reach out to millions of pages based on keywords and con-partnership in Internet freedom. Such additional Internet users. In the case tent matched against a “blacklist.”collaboration is key, since authoritar- of China, companies that want to pro- Self-Censorship—The govern- vide Internet services in the countryian regimes so often contract out the ment requires all Internet compa- must become subject to the laws anddaily work of censorship to private nies operating within China to self- regulations of the Chinese authorities.companies. But it may not be enough. censor their content or face harsh Because most of these regulations areAlternative solutions in U.S. domestic penalties and possible shutdown if contrary to the liberal approach oflaws and international-trade law have they fail to do so. Internet regulation found in Westernfallen short of posing a viable chal-lenge to digital censorship in China. Enforcement—It is estimated states, U.S. companies are caught in aIn the final analysis, voluntary corpo- that approximately 30,000 Chinese vice-grip between the demands of therate codes of conduct may be the only “Internet police” are monitoring Chinese government and the markedviable force to bring down the Great Internet traffic and blocking pro- displeasure of the U.S. governmentFirewall of China. hibited content. and human rights organizations. The Fall 200 Page
  2. 2. sue HINA Is Special C The International Law Quarterlymost popular examples of companies host of reasons, it nonetheless points for example, Google’s search engine iscaught in this grip are U.S. software to a promising U.S. trend to look for being squeezed out by Baidu, Face-giants Google, Microsoft, Yahoo!, innovative legal solutions to put an book by Ren Ren Wang, and Youtubeand hardware maker Cisco Systems. end to digital censorship in China. by Tudou and Youku.Microsoft and Yahoo! both censor the Another legal innovation recently Although there may be some chal-results of their Chinese-language employed in the U.S. to chisel away lenges related to audio-visual mediasearch engines to varying degrees by at the Great Firewall of China is the content under the General Agree-removing politically sensitive content Alien Tort Claims Act (ATCA). The ment on Trade and Tariffs (GATT),from the search results. Google left ATCA provides a private cause of the more logical approach relevant toChina earlier this year but recently action for aliens for torts committed search engines and social network-renewed its license with the Chinese in violation of the law of nations or a ing services would be to challenge thegovernment. The search giant, how- treaty of the U.S.5 In April 2007, the practice under the General Agree-ever, did not make any concessions U.S.-based NGO “World Organiza- ment on Trade in Services (GATS).regarding censorship—for now. For its tion for Human Rights” filed a major Given the crucial structural differ-part, Cisco Systems has been accused lawsuit in a U.S. district court against ence between GATT and the GATS,of supplying the Chinese government Yahoo! based on the Alien Tort Claims however, the arguments are far fromwith some of the hardware used to Act, accusing the Internet corporation straight forward.8 One of the mostbuild the Great Firewall. of aiding and abetting the Chinese difficult challenges to overcome The tension between China’s strict authorities to arrest and torture a regarding the filtering of onlineInternet censorship regime and the Chinese journalist.6 content by the Chinese governmentUnited States’ decidedly hands-off According to the Complaint, Yahoo! is the General Exceptions clauseapproach to the Internet prompted revealed, at the request of the Chi- in Article XIV of the GATS. Unlessthe U.S. Congress to consider pass- nese authorities, the name of the jour- the contested measure constitutes aing a statute to promote freedom of nalist who was using a Yahoo! Inter- means of unjustifiable discrimina-expression on the Internet: the Global net account to disseminate his calls tion, the GATS cannot be invoked toOnline Freedom Act.2 The primary for democracy in China. Use of the prevent the adoption of laws that arepurpose of the bill is to establish an ATCA could add some pressure on In- “necessary to protect public morals orOffice of Global Internet Freedom ternet service providers to show more to maintain public order.” It is pos-empowered to draft a list of “Internet- respect toward basic human rights sible, however, that a challenge to therestricting countries.” The bill aims and democratic standards of free measure could prevail under the WTO“[t]o prevent United States businesses speech. Given the Supreme Court’s framework if it is shown that therefrom cooperating with repressive recent trend toward narrowing the exists a reasonably available alterna-governments in transforming the applicability of the ATCA, however, tive that is less restrictive.Internet into a tool of censorship and it remains to be seen whether new While there are valid points tosurveillance, to fulfill the responsibili- claims brought under the Alien Tort challenging the Great Firewall ofty of the United States Government to Claims Act will exert any meaningful China in the WTO context, the incen-promote freedom of expression on the pressure of China to reconsider its diary political fallout from bringingInternet, to restore public confidence current regime of Internet censor- such a claim would undoubtedly fuelin the integrity of United States busi- ship.7 While the U.S. continues to a trade war unprecedented in scale.nesses, and for other purposes.”3 develop alternative ways to address Given the political volatility of such Section 20 of the Act states that a Internet regulation in China, some an approach, other less-confronta-“United States business that creates, compelling arguments are being made tional solutions must be considered.provides, or hosts any Internet search at the international level. Corporate codes of conduct presentengine or maintains an Internet con- such an alternative.tent hosting service may not locate, International Trade Lawwithin a designated Internet-restrict- Many in the international com- Corporate Codes of Conducting country, [any materials] involved munity have argued that China’s a Viable Means to Challengein providing such search engine or firewall system is a barrier to entry Digital Censorship in Chinacontent hosting service.” Under the and violates international trade law. Corporate codes of conduct playedAct, Internet companies are also The thrust of this argument is that a major role in the collapse of apart-prohibited from altering their search the Chinese government is using the heid in South Africa and are a viableengines to produce different results “Great Firewall” as an instrument of means to end digital censorship infor users accessing the search engine online protectionism, by systemati- China.9 Secretary Clinton’s remarksfrom different countries.4 Although cally excluding foreign providers in concerning the “information curtain”the bill is unlikely to be enacted for a favor of domestic services. This is why, dividing the world, echoes the in- Page 2 Fall 200
  3. 3. Special C HINA Is The International Law Quarterly suejustices of the apartheid era where bring every American company I times gone by, the Great Firewall ofmuch greater injustice and unspeak- can out of South Africa.3 China may one day become one, too.able acts against humanity were Given the success of the Sullivanchallenged and ultimately overcome Santiago A. Cueto is founding principles in ending apartheid, wethrough the use of corporate codes of partner of the Cueto Law Group, P.L. should look at applying the sameconduct. His practice includes complex litiga- principles to lift the information cur- These corporate codes of conduct, tion in federal and state courts. He is tain in China.which came to be known as the Sul- currently the lead attorney in a classlivan Principles, were pioneered by action lawsuit against two of the Why Multinationals Shouldthe African-American minister Rev. world’s largest Internet domain name Adopt Corporate Codes ofLeon Sullivan, a zealous promoter of providers. The case has been featured Conductcorporate social responsibility.0 in The National Law Journal, the Google, to its credit, has pio- In 977, Rev. Sullivan was a mem- ABA Law Journal, CNBC, Forbes and neered the corporate-code movement.ber of the board of General Motors. At PC World magazines. Mr. Cueto at- Google’s defiance of China’s censor-the time, General Motors was one of tended law school at the University of ship mandate illustrates the power ofthe largest corporations in the United Florida and Université de Montpellier, corporate social responsibility initia-States. General Motors also happened France. While in law school, Mr. Cueto tives to influence and reshape theto be the largest employer of blacks was an executive editor of the Florida repressive policies of authoritarianin South Africa, a country that was Journal of International Law. Prior regimes.pursuing a harsh program of state- to attending law school, he received a While most major multinationalsanctioned racial segregation and dis- Master’s degree in international rela- companies consider a presence incrimination targeted primarily at the tions from the University of Miami. China critical to their future success,country’s indigenous black population. Mr. Cueto’s international education Google has demonstrated that even the largest of corporations are will- and experience has enabled him toCorporate Codes of Conduct counsel companies operating through-Originally Developed to ing to forgo short-term gain in the interest of an ultimate triumph over out the world. He currently serves asChallenge Apartheid executive counsel to companies in the Rev. Sullivan developed the codes censorship—similar to how corpora- tions sacrificed profits to challenge global supply and communications in-to apply economic pressure on South dustries. In addition to his work as anAfrica in protest of its system of apartheid in the 970’s and 980’s. In Google’s case, this will come at a cost attorney, Mr. Cueto volunteers his timeapartheid. Before the end of South by assisting impoverished communi-Africa’s apartheid era, the principles of an estimated $300 million a year in revenue.4 Although this will hardly ties around the world. He has traveledwere formally adopted by more than to India to help establish literacy pro-25 U.S. corporations with operations make a dent in Google’s coffers, it is a step in the right direction. grams for primary schools. Mr. Cuetoin South Africa. Of those companies has also worked to distribute micro-that formally adopted the principles, loans to struggling entrepreneurs inmany completely withdrew their ex- Conclusion more than fifteen countries acrossisting operations from South Africa.2 Corporations adopting codes of the globe, including Peru, Tajikistan,The principles eventually were widely conduct must be unified and patient Ukraine, Cambodia, Indonesia, So-adopted by United States-based cor- in their approach. The challenge moa and Nepal. He may be reached byporations and played a significant role now will be to put these ideas into email at sc@cuetolawgroup.com.in the collapse of the South African practice by incorporating them intoregime. In reflecting on the success diplomacy and trade policy. Doing so Endnotes:of his anti-apartheid efforts, Rev. Sul- will apply meaningful pressure on These laws are not applicable in Honglivan recalled: companies to act responsibly through Kong and Macau, which are designated as Starting with the work place, I the adoption of corporate codes of special administrative regions not subject to most of the laws of the People’s Republic of tightened the screws step by step conduct with respect to their China China, including limits placed on the free- and raised the bar step by step. operations. Pressing China to open flow of information. H.K. Basic Law, ch. II, Eventually I got to the point where the Internet to its people and al- arts. 8, 9. I said that companies must practice low for freedom of expression will 2 Global Online Freedom Act, H.R. 227, corporate civil disobedience against not happen overnight. Indeed, the th Cong. (2009-200). This bill is in the first stage of the legislative process. It has the laws and I threatened South Chinese experience with the Inter- been referred to the House Foreign Affairs Africa and said in two years Mandela net is still in the early phases of Subcommittee and the House Energy and must be freed, apartheid must end, development. Just as the Great Wall Commerce Subcommittee. and blacks must vote or else I’ll of China became an ancient relic of 3 Id. Preamble. Fall 200 Page 3
  4. 4. sue HINA Is Special C The International Law Quarterly4 Id. § 203. acceptance among civilized nations than the proposed to address international environ-5 28 U.S.C. § 350 (2006). The ATCA states historical paradigms familiar when section mental concerns. See, e.g., Santiago A. Cueto,that: “The district courts shall have original 350 was enacted.” Id. at 732-33. Within this Oil’s Not Well in Latin America, Curing thejurisdiction of any civil action by an alien for historical context, the Court struck a balance Shortcomings of the International Environ-a tort only, committed in violation of the law and set forth a standard which recognized mental Law Regime in Addressing Industrialof nations or a treaty of the United States.” the evolving nature of international law and Oil Pollution Through Corporate Codes of provided a modern framework for determin- Conduct, Fla. J. Int’l laW 535 (997).6 Wang Xiaoning v. Yahoo! Inc., No. C07- ing whether a tort constitutes a cause of025 C (N.D. Cal. Apr.8, 2007). Under 0 Richard L. Herz, The Liberalizing Effects action. The framework incorporates four of Tort: How Corporate Complicity Liabilityinternational pressure, Yahoo! settled the features that approximate the considerations Under the Alien Tort Statute Advances Con-lawsuit. In a written statement, Yahoo! said used in 789 to establish a private right of structive Engagement, 2 harv. hum. rts. J.it will provide “financial, humanitarian and action: universality, obligatory nature, speci- 207, 224 (2008).legal support to these families” and create a ficity and prudential considerations.separate “humanitarian relief fund” for other Cristina Baez, et al., Multinational Enter-dissidents and their families. Yahoo Settles 8 The primary structural difference be- prises and Human Rights, 8 u. mIamI Int’l With Chinese Families, Wash. Post, Nov. 4, tween the GATT and GATS is that the GAT ComP. l. rev. 83, 327 (2000).2007. applies to all categories of goods except those a Member specifically excludes, whereas un- 2 John G. Scriven, Corporate Responsibil-7 See Sosa v. Alvarez-Machain, 542 U.S. 692 ity and Regulating the Global Enterprise, 6(2004). In Sosa, the U.S. Supreme Court cau- der the GATS, they are obligated only to the sector-specific commitments they choose to transnat’l laW. 53, 63 (2002).tioned against liberal expansion of the ATCAbeyond the original scope of offenses con- assume. For example, a Member may accept 3 KevIn mCnamara, the maCBrIde PrIn- GATS obligations in relation to cross-border CIPles: IrIsh amerICa strIKes BaCK, n. 30 (U.templated when it was passed in 789: “[W]eare persuaded that federal courts should not supply of data processing services but make Chi. Press 200).recognize private claims under federal com- no similar commitments in relation to finan- 4 Miguel Helft, For Google, a Threat tomon law for violations of any international cial services. China With Little Revenue at Stake, n.Ylaw norm with less definite content and 9 Corporate codes of conduct have also been tImes, Jan. 5, 200 at A-0. Page 4 Fall 200