Censoring the Censors in the WTO - Southwestern Law School

30 J. Int’l Media & Entertainment Law Vol. 3, No. 1
other obscene material, 57 suspicion regarding the Government’s true motives
in requiring the installation of the Green Dam software abounds.
This is the case, because independent tests of the Green Dam software
revealed that it consistently censored information regarding the banned
Falun Gong movement 58 and other politically-sensitive information in
China 59 and even when users deleted the software from their computers,
this action “fail[ed] to remove some log files, so evidence of users’ activity
remain[ed] hidden on the system.” 60 Some commentators insisted
that the “Green Dam is pure spyware.” 61
In fact, despite the fact that the Chinese Communist Party (CCP
banned criticism of the Green Dam software 62 and instructed website
companies to “block and delete any attacks (on the ‘Green Dam’ Filtering
Software[,])” 63 a poll conducted via the website www.sina.com.cn
revealed .that over 80% of “netizens” (citizens with access to the internet
or “net”) in China “expressed strong opposition to the mandatory installation
of Green Dam.” 64 Many of them are “angry over the possible
privacy violations caused by Green Dam,” 65 and some are “questioning
57. In the United States, for example, “[t]ransmitting obscenity and child pornography,
whether via the Internet or other means, is . . . illegal under federal law for both
adults and juveniles.” Reno v. ACLU, 521 U.S. 844, 878, n.44 (1997) (citing 18 U.S.C.
§§ 1460-65 (criminalizing obscenity) and § 2251 (criminalizing child pornography)).
Similarly, all U.S. states prohibit the creation, reproduction, publication, or distribution
of child pornography, and the great majority of states also prohibit the distribution of
obscenity. See, e.g., Ronald J. Palenski, State Laws on Obscenity, Pornography, and
Harassment, lorenavedon.com, available at http://www.lorenavedon.com/laws.htm
(accessed Dec. 28, 2009). The U.S. Supreme Court has established a tripartite test that
judges and juries are required to use to determine whether material is obscene. “The
basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying
contemporary community standards’ would find that the work, taken as a whole,
appeals to the prurient interest[;] . . . (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.” Miller v. California, 413 U.S. 15, 24 (1973).
58. Maisto, Chinese Green Dam, supra note 54 (reporting that the University of
Michigan’s Computer Science and Engineering Division found that when the Green
Dam software finds the words “Falun Gong,” “the offending program is forcibly closed
and an error image . . . is displayed[.]”).
59. Loretta Chao, U.S. Trade Officials Urge China to Revoke PC Rule, Wall St.t J.,
June 25, 2009, at A20 (also reported on www.wsj.com on June 25 2009, available
at http://online.wsj.com/article/SB (accessed Dec. 28, 2009) [hereinafter “Chao, U.S.
Trade Officials”].
60. Id.
61. China’s “Green Dam” Censorware Controversy, en.secretchina.com, July 5,
2009, available at http://en.secretchina.com/news/china_s_green_dam_censorware_
controversy.html (accessed Dec. 30, 2009) [hereinafter “China’s Green Dam”].
62. Id.
63. Id.
64. Id.
65. Id.
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