No-go on GOFA

Today, CDT posted an updated memorandum on the most recent version of the Global Online Freedom Act (“GOFA“). GOFA was first introduced by Rep. Christopher Smith (R-NJ) several years ago in response to troubling reports of company complicity in Internet censorship and cooperation in prosecutions of dissidents who posted political material online. The late Rep. Tom P. Lantos, (D-Ca) took up the cause last year and the bill was reported out of the Committee on Foreign Affairs late last year. Industry opposition to the bill has been fierce and efforts to bring the bill to the floor on suspension have thus far been thwarted.

CDT strongly believes that technology companies doing business in countries that broadly surveil and censor the Internet must take serious steps to identify and minimize the human rights risks associated with providing services and technology solutions in those countries. For several years, we have been co-facilitating a multi-stakeholder initiative aimed at developing global principles to guide ICT companies facing free expression and privacy challenges. We remain hopefully that these principles will grow into a global industry standard that will give the industry a road map for collective action in this area. We also believe that companies must not hide from these challenges. They should advocate for changes in public policy that protect the rights of their users, challenge laws where possible and collaborate with human rights groups and other stakeholders to build support for an open Internet that supports human rights.

In most cases, we believe the presence of U.S. ICT companies and the services they offer provide a powerful platform for political discourse and democracy building. Thus we do not believe that the withdrawal of U.S. companies from Internet-restricting countries would serve the aims of Internet freedom. To be sure, there may be times that the restrictions imposed by such countries are so extreme that a company cannot be a positive actor for human rights and may need to abandon the market. And there are certainly instances where a U.S. company should not sell software and consulting services to a repressive regime for a purpose that is plainly inconsistent with the protection of human rights.

The recent reports of U.S. companies lining up to sell technologies to the Chinese police to improve surveillance capabilities strikes us as precisely the kind of activity the U.S. government should closely scrutinize. But as we set out in the memorandum, we do not think that GOFA provides a workable approach to this problem. We welcome GOFA’s mandate that all appropriate instruments of United States influence, including diplomacy, trade policy, and export controls” be used to promote global Internet freedom, but question how the U.S. government which itself has not tied trade with countries like China to human rights improvements nor challenged the blocking of U.S. Internet content as a trade barrier (and in fact has strongly encouraged the ICT sector to enter these markets) can now place these companies in severe legal jeopardy for complying with the law in those countries.

The problem with GOFA is that it treats the Internet sector as adversaries rather than allies in the fight for global Internet freedom. If the ultimate goal is to change the behavior of Internet-restricting countries, the U.S. government must work collaboratively with U.S. companies to help them navigate these difficult legal environments, better assess and respond to human rights risk and to put pressure on these regimes to change their censorship laws.