Internet Freedom A Foreign Policy Imperative in the Digital Age

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J U N E 2 0 1 1Internet FreedomA Foreign Policy Imperative in the Digital Age28 |Similarly, competing definitions of aggressioncomplicate efforts to develop Internet freedomnorms. At an April 2008 U.N. conference, a seniorRussian official argued that “any time a governmentpromotes ideas on the Internet with the goalof subverting another country’s government – evenin the name of democratic reform – it shouldqualify as ‘aggression.’” 110 In 2009, the six-memberShanghai Cooperation Organisation – whichincludes Russia and China – adopted an accordthat reportedly defined “information war,” inpart, as an effort by a state to undermine another’s“political, economic and social systems.” 111The same tensions exist in working with Americanpartners to combat online crime. The AdditionalProtocol to the European Convention on Cybercrime,for example, provides a mechanism for states toharmonize their domestic laws relating to varioustypes of cybercrime. At first glance, this would seemprecisely the kind of effort that the United Statesshould support on security grounds. Yet the protocolrequires signatories to criminalize such activities asdistributing xenophobic or racist material through acomputer system; expressing denial, “gross minimization”or approval of a genocide or crimes againsthumanity through a computer; distributing insults topeople because of their race, color, religion, nationalor ethnic origin through a computer system; or aidingand abetting any of these acts. The AdditionalProtocol has been signed by Albania, Cyprus,Denmark, France, Slovenia and Switzerland. Whilethe United States ratified the underlying conventionin 2006, it has declined to join the AdditionalProtocol, believing it to be inconsistent with U.S.constitutional guarantees. 112Efforts to enlist Internet service providers andother technology companies to enforce regulationsprotecting copyrights and intellectual propertyalso complicate U.S. efforts to build stronger globalsupport for Internet freedom. Intermediaries– including Internet service providers, websitehosting companies, social networking and emailservice providers and search engines – are increasinglypressured by states to regulate content theyhost. In the United States, an individual postingillegal material is generally held liable rather thanthe intermediary. 113 In many foreign countriesintermediaries do face liability, and the process bywhich they are notified (by either the governmentor private actors) is often unclear.The role of the private sectoris the single most complicatedissue facing U.S. policymakersas they forge an Internetfreedom agenda.Holding them liable in this way risks chilling freeonline expression. In countries like France, whereInternet service providers and others are increasinglyenforcing copyright regulations, hosts mayself-police content and respond immediately totakedown notices, even those issued in bad faithor for unscrupulous purposes. 114 The United Statesand a number of other nations, including the EU,Japan and Mexico, are currently negotiating anAnti-Counterfeiting Trade Agreement that willserve as an international framework for enforcingintellectual property rights. In developing suchframeworks, the United States must be very waryof moving beyond current American law. Holdingintermediaries responsible could undermine theU.S. Internet freedom agenda by compelling themto err on the side of caution and to proactivelycensor, ban or remove even legal – let alone questionable– content.The United States must help formulate acceptableinternational definitions of cyber security, aggression,cybercrime and copyright enforcement that
espect the principles of Internet freedom. It willalso need to continually articulate the distinctionbetween political speech permissible undersuch regimes as the UDHR and truly illicit onlineactivity. This will likely involve opposing effortsto develop restrictive international norms spearheadedby some of America’s closest friends.Enlisting Private Sector SupportThe role of the private sector is the single mostcomplicated issue facing U.S. policymakers as theyforge an Internet freedom agenda. Private firmshave a duty to maximize profits rather than promoteonline freedom in repressive environments.Yet with the prominent role their products playedin Iran, Egypt, China and elsewhere, companieshave been dragged into the center of the Internetfreedom debate, whether they want to be there ornot. Ethical debates about the proper role of theprivate sector – ranging from whether Americancompanies should be permitted to sell repressiveregimes key technologies to the responsibilities ofcorporations in the face of a regime’s demand forinformation – remain unresolved.The perception that American companies aidInternet repression abroad clearly makes promotingInternet freedom more difficult. This isparticularly true for the most egregious activities,such as turning over the personal data of a dissidentto state security services. As we discuss below,Congress should ban such activities and requiremore transparency into other corporate involvement,such as providing lists of banned websites.Yet nearly seven years after the initial hearings onInternet companies in China began, no legislationin this area has passed.Both corporations and policymakers are strugglingto define the appropriate role of companies in promotingInternet freedom. For example, Cisco hasbeen accused of marketing routers in China thatare used to support the Great Firewall. 115 For severalyears Google censored its own search results inChina. More recently, the computer security firmMcAfee Inc. provided content-filtering software toInternet service providers in Bahrain, Saudi Arabiaand Kuwait. 116 China’s Huawei is a significant supplierof filtering technology. Telecommunicationsgiant Nokia allegedly provided the Iranian governmentwith the capability to tap mobile phones,interrupt calls and intercept and scramble SMS textmessages to disrupt organized protests. 117 France’sAlcatel reportedly sold website filtering and surveillanceequipment to Burma, 118 and Canada’sNortel Networks has allegedly provided censorshiptechnology to the Chinese government. 119The problem is that companies must follow locallaws when they operate in foreign countries,including laws restricting online behavior inauthoritarian states. If they do not comply, thefirms risk losing their licenses and access to thosemarkets. Many observers have pointed to Google’sdecision to withdraw from China rather than continueto accept Chinese government restrictionsas an example of a principled corporate stand thatothers should emulate. But industry representativespaint a more complicated picture. Fledglingtelecommunications and technology companieswithout large revenue streams – or even largerfirms that do not boast tremendous financialassets – may find the need to stay engaged inChina, the world’s largest Internet market, a questionof life or death.The perception that American firms themselves arean arm of American foreign policy also jeopardizestheir ability to compete in key foreign markets.During the 2009 Iranian revolution, for instance,Jared Cohen, then a member of Clinton’s policyplanning staff, emailed Twitter founder Jack Dorseyurging the company to forgo a planned site outageso that Iranians could continue tweeting. Thisaction attracted disapproval even in the UnitedStates, but it is consistent with the U.S. policy ofpromoting Internet freedom. The U.S. governmentroutinely reaches out to private firms and this will| 29
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Internet Freedom A Foreign Policy Imperative in the Digital Age

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