Using free trade to force China to permit more free speech

2008-04-19T01:25:00.000-07:00

作者: Nick Rahaim 来源: California First Amendment Coalition

With the Beijing Summer Olympics approaching, the world has turned its focus toward China. From alt/pop musician Bjork lending her support to the Free Tibet movement while recently performing in Shanghai, to Steven Spielberg stepping down as artistic adviser of the Beijing Games citing objections to China’s ties to the Sudanese government, many see this as an opportune moment to put pressure on the People’s Republic. Here at the California First Amendment Coalition, we have had our eyes on China’s “Great Firewall” of internet censorship.

China’s censorship of the internet is well known, yet most arguments against the firewall and steps to counter it take an overtly political approach. CFAC’s approach is economic, using international trade laws to promote the political goals of free speech and freedom of information.

The Great Firewall and other restrictions to web traffic under the China’s “Golden Shield” program (yes, that’s what the Chinese government really calls it) create significant barriers to trade---barriers which, in our view, are in violation of the obligations China agreed to when it became a full member of the World Trade Organization in 2001. Represented by D.C. trade law firm King & Spalding, CFAC is pressing the US Trade Representative to challenge China’s policies before the WTO.

A favorable ruling by the WTO would provide American tech companies greater access to the Chinese market, but it would also achieve another, more novel, goal. Creating greater market access in China would lessen the need for American companies to accede to self-censorship, and in turn allow for greater freedom of information. A pro-trade decision by WTO would open the door for Web 2.0 companies and projects like Wikipedia, Mediawiki, Technorati—all of which are currently blocked in China.

China has been hostile to user-generated content where the identity of the user is unknown. The promise of Web 2.0 technologies in China is that, by tapping the “collective intelligence” of millions of internet users, they will create a decentralized, democratic culture on the web that stands in stark contrast to the highly centralized and authoritarian Chinese regime.

Favorable WTO action would also open the Chinese people to Chinese language media from outside the firewall. In our research we have found that nearly half of all Chinese-language websites based outside the firewall—many originating in Chinese-American communities in the U.S.—are blocked by the firewall. Unlike other websites that allow for user-generated content, or contain politically taboo content, the Chinese-language sites are blocked simply because of their potential to speak, unfiltered, to a mass audience of Chinese citizens.

With over 160 million-plus internet users, China will soon overtake the U.S. as the world’s biggest internet market—indeed, some observers say this already has happened. But for most people in China the web is far from “worldwide” because of the firewall’s degrading of the performance of websites outside the firewall, when viewed from inside. The firewall causes delays and other problems not experienced when Chinese users access China’s domestic websites. This technical barrier, as much as out-and-out censorship, keeps Chinese internet users inside the firewall. Why put up with slow connections and unreliable access to youtube.com when China’s own state-financed video site, tudou.cn, is faster and spares users the risk of viewing content that could put them under government suspicion?

This performance deficit is the main reason that many American companies have started working within the firewall, and in doing so have accepted a high degree self-censorship to promote what Chinese president Hu Jintao calls a “healthy online culture.” Companies that offer blog and email hosting are required to provide user information to the Chinese authorities upon request. This practice was roundly condemned when it was reported that both Microsoft and Yahoo! had handed over user information that led to the jailing of dissident bloggers and journalists.

Although the firewall has been less than effective in insulating the Chinese people from foreign ideas (one observer, Jacqui Cheng, has said the firewall is more like a chain-link fence), it has been quite effective in insulating China’s indigenous internet industry from competition with US and other non-Chinese rivals. The market share in China of companies based outside of China is remarkably small. Google.cn accounts for only about 26 percent of web searches in China, with Baidu, the dominant search engine, accounting for about 60 percent.

If the WTO finds that China’s Golden Shield project is a barrier to trade, China can be forced to take steps to change policies that have hurt its people while benefiting the owners of its domestic internet firms. Such changes are inevitable at some point. The Olympic Games present a chance to greatly accelerate the pace of change.

Nick Rahaim, a journalist, is a CFAC analyst.

The World Trade Law of Internet Filtering

2008-04-09T21:11:00.000-07:00

作者：Tim Wu

下载：http://papers.ssrn.com/sol3/papers.cfm?abstract_id=882459

摘要：

In 1994, when most of the world's trading nations agreed to create the WTO, they also agreed to begin to liberalize trade in services. What no one fully realized at the time (and not all realize now) is that those decisions placed the WTO in the midst of internet regulation. Much internet content can be reached from anywhere, making nearly everyone on the internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident, the WTO has put itself in an oversight position for most of the national laws and practices that regulate the internet.

Over the last five years, national governments have begun to impose more controls over the internet - in particular, filters that keep certain forms of applications or content out. The inevitable effect is to create barriers to trade in services. Countries have filtered or blocked internet imports without seeming to think twice about the consistency of such actions under WTO law. More such practices will fall under WTO scrutiny in the years ahead. For the most part, WTO oversight will be invisible. Yet in other areas the influence of the WTO will no doubt help shape the future of international internet transactions - and the internet itself.

In its introduction to problems of trade in internet-based services, this paper focuses on two cases: one a country and one a product. The national study is of China, among the world's more comprehensive internet regulators. China makes for an interesting case because as a condition to accession to the WTO, it agreed to what has been called “radical” reform of its service practices. Yet at the same time China is among the world's more active filterers of internet services. As we shall see, these two positions are in tension, and while WTO law leaves much room for exceptions, some of China's restrictions may not be easily justifiable under the GATS.

The second study is of the company Skype, a provider of voice over Internet services. Skype offers free voice telephone services to anyone with an internet connection. As a consequences, incumbent telephony carriers, often state-owned, have a strong competitive interest in preventing Skype from reaching their customers. The instances of Skype blocking in several countries raise interesting trade in services issues.

This paper is meant for two audiences. For those within the world of trade law it clarifies how internet services have leapt beyond what was contemplated in GATS or subsequent telecommunications agreements. The universalization of a network that is a platform for any type of service requires new thinking about how barriers may come about, and how sectoral commitments are interpreted. For those within the world of telecommunications or internet law, this paper introduces the relevance of WTO law to national regulation of internet services. One of the most interesting consequences may be a tempering of what we might call the "Yahoo! Presumption"; that is, the presumption that the burden lies with internet companies to adapt to national legal systems. While still generally true, the tendency in WTO jurisprudence is to put the burden on national governments to justify internet blocking.

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Using free trade to force China to permit more free speech

The World Trade Law of Internet Filtering