Senate Hearing on Global Internet Freedom: A Clarion Call for Corporate Responsibility
Earlier this week the Senate Judiciary Committee, Subcommittee on Human Rights and the Law called five witnesses to testify on the role of the US government, corporations, and citizens in combating (and abetting) Internet censorship and surveillance throughout the world. Entitled “Global Internet Freedom and The Rule of Law, Part II,” the hearing featured representatives from the government, corporate, academic, and citizen advocacy spheres. Although CDT didn’t testify in person, we did submit written testimony that you can find here.
Although Subcommittee Chairman Dick Durbin expounded on the importance of corporate responsibility in the fight for global Internet freedom, Google Vice President and Deputy General Counsel and witness Nicole Wong was corporate America’s only representative at the hearing. But this was not for lack of effort by the Subcommittee: in his opening remarks, Senator Durbin emphasized the industry-spanning nature of challenges to Internet freedom – from the Chinese government’s failed attempt to require that all computers sold to China include government spyware to the Iranian government’s crackdown on Facebook and Twitter users – and then reported that Facebook, Twitter, Apple, and Hewlett Packard all refused to testify. McAfee, which owns a start-up whose software has been associated with Middle East countries’ efforts to filter the Internet, had originally agreed to testify, but withdrew from the hearing at the last minute.
Senator Durbin appropriately castigated companies for refusing to engage with (or even acknowledge) the issues raised when they operate in countries that flagrantly censor the Internet or surveil their citizens. Many of these corporations, he said, claimed that efforts like the Global Network Initiative (GNI), a multi-stakeholder initiative that seeks to promote freedom of expression and privacy globally, are “not relevant to their company’s business.” Indeed, the recalcitrant responses of the more than two dozen companies that Senator Durbin contacted about joining Microsoft, Yahoo!, and Google in the GNI sent a strong signal to the Senator that “with a few notable exceptions, the technology industry seems unwilling to regulate itself and unwilling even to engage in a dialogue with Congress about the serious human rights challenges the industry faces.” In response, Durbin announced “a more active role” for Congress and his intent to introduce “legislation that would require Internet companies to take reasonable steps to protect human rights or face civil or criminal liability.”
Senator Durbin’s announcement highlighted the fact that, while corporate responsibility is essential for the promotion and preservation of an open and free Internet, the policies and practices of the US government are similarly integral to protecting Internet freedom. For example, Ms. Wong and fellow witnesses Rebecca MacKinnon, Visiting Fellow at Princeton University’s Center for Information Technology Policy, and Omid Mermarian, an Iranian blogger now living in San Francisco, all mentioned US trade policy as a cornerstone in the battle against censorship. Ms. MacKinnon voiced concern over outdated laws that “make it difficult for US Internet companies to legally serve activists from sanctioned countries like Iran, Syria, and Zimbabwe.” This analysis was echoed by Mr. Mermarian, who reported that current interpretations of sanctions have impeded the ability of Iranians to access the Internet and publish content online. On the other hand, said Ms. MacKinnon, it should not be so easy for U.S. companies to provide censorship and surveillance technology to regimes that consistently use this technology to suppress peaceful speech.
Ms. Wong laid out a thoughtful framework for how a responsible company can proceed – and succeed – in international environments that threaten the ideal of an open and free Internet. She argued that “Internet censorship should be part of our trade agenda, because it has serious economic implications,” disfavoring international companies and limiting consumers’ choices. The Google Vice President’s strong statement on this issue prompted post-hearing questions about whether or not US trade representatives will challenge China’s censorship practices at the World Trade Organization.
But while there seemed to be general consensus on the need to reevaluate US trade policies, statements by the senators also highlighted the competing interests that the US government is seeking to balance in this space. Senator Al Franken, for example, posed a question about the inclusion of copyright enforcement provisions in trade agreements; he seemed unaware of the potential for copyright provisions in US trade agreements to lead to overbroad copyright enforcement (without careful balancing of speech concerns) that can have a significant collateral impact on free expression. Meanwhile, Senator Durbin discussed child pornography and threats to national security, claiming that “most of us would approve of an Internet company cooperating with the government” in these cases. Neither senator seemed to recognize that such broad statements about cooperation between the US government and US companies often ricochet throughout the world and into the palms of countries like Iran and China, where the exigencies of “national security” and “pornography” are often used as pretenses for censorship. American policymakers must be mindful of how their proposals, however well motivated, are perceived abroad.
This tension was aptly acknowledged by the government’s two witnesses at the hearing, Michael Posner, Assistant Secretary for Democracy, Human Rights, and Labor at the State Department, and Danny Weitzner, CDT co-founder and Associate Administrator for the Office of Policy Analysis and Development, National Telecommunications and Information Administration at the Commerce Department. Mr. Weitzner argued that accommodating legitimate national variations in law while promoting an open and free Internet requires special attention to the dual roles of due process and transparency. Transparency about the rules that govern Internet content – and due process surrounding enforcement of these rules – not only facilitates human rights advocacy, Mr. Weitzner said, but are necessary for a “viable commercial environment.” Nonetheless, said Mr. Posner, knowing where to draw the line is always “going to be the hardest calls for companies to make or for government to make.”
The broad and divergent set of topics covered in the hearing accentuates a point that CDT has often made and that many of the witnesses addressed in their testimonies: threats to Internet freedom can involve a wide range of sectors, markets, and government actors. Such threats can take the form of filtering, content deletion, intermediary liability (like in the recent prosecution of Google executives in Italy), or surveillance. And it can implicate foreign governments, international trade organizations, and ICT and security companies alike. But the hearing also highlighted that all of these actors have a role to play in protecting an open Internet. By acknowledging their role in Internet freedom, by engaging with initiatives like the GNI, and by performing impact assessments on the ramifications for the Internet of government or corporate actions in foreign countries, participants in the global economy can have a global impact on that most global of mediums. And for companies, as Senator Durbin made clear, ignoring the human rights impact of your business operations is simply not an option any more.
