Commentary: Are China's demands for Internet 'self-discipline' spreading to the West?

Open Society InstituteJanuary 18, 2010 

Every year in China, Internet executives are officially rewarded for their "patriotism."

Last November in Beijing, I sat in a large auditorium festooned with red banners and watched Robin Li, the CEO of Google's main competitor, Baidu, parade onstage with executives from 19 other companies to receive the 2009 "China Internet Self-Discipline Award."

The rhetoric was all about the "strength and confidence of the Chinese Internet" and "harmonious and healthy Internet development." The reality is: China's annual "self discipline" award is for private sector censorship.

In English-language news reports about Chinese censorship, we hear a lot about the "Great Firewall," the system that Chinese network operators use to block objectionable Web sites that are operated from overseas — and to render Twitter, Facebook and YouTube inaccessible to Chinese Internet users. You also may have read about the "Internet police" who keep tabs on what people say and do online.

You may not have heard about "self-discipline" requirements for Chinese Internet companies, however. For some reason, they get a lot less Western media coverage, despite the fact that the government delegates a large part of the censorship and surveillance on the Chinese Internet to private companies.

Here's how it works: In China, all Internet and mobile companies are held responsible for everything their users post, transmit, or search for. The Chinese call it "self-discipline." In Anglo-American legal parlance, it's "intermediary liability," which in China is taken to its logical extreme with no public accountability or due process. "Intermediary liability" means that the intermediary, a service that acts as "intermediate" conduit for the transmission or publication of information, is held liable or legally responsible for everything its users do.

In China, if companies fail to track and remove content or block conversations that regulators deem violate laws or regulations (a court or judge is almost never involved), they risk heavy fines at best and permanent shutdown at worst.

Companies' liability covers a gamut of content, all the way from porn, to pirated intellectual property, to defamation of powerful people, to exposes of corruption leading to poisoned baby formula, to treatises on democratic reform. Dozens of Chinese companies were shut down last year, and many more were fined or warned. Unlike Google, they couldn't just leave China.

To operate in China, Google's local search engine, Google.cn, had to meet these "self-discipline" requirements. When users typed words or phrases for sensitive subjects into the box and clicked "search," Google.cn was responsible for making sure that the results didn't include forbidden content.

It's much easier to force intermediary communications and Internet companies such as Google to police themselves and their users than the alternatives: sending cops after everybody who attempts a risque or politically sensitive search, getting parents and teachers to do their jobs, or chasing down the origin of every offending link. Or re-considering the logic and purpose of your entire system.

Intermediary liability enables the Chinese authorities to minimize the number of people they need to put in jail in order to stay in power and to maximize their control over what the Chinese people know and don't know.

In its bombshell announcement on Jan. 12, Google cited massive cyber attacks against the Gmail accounts of human rights activists as the most urgent reason for re-evaluating its presence in China. However, the Chinese government's demands for ever-increasing levels of censorship contributed to a toxic and unsustainable business environment.

Ever since Google.cn launched in 2006, I've occasionally run tests to see how its compares to its homegrown competitor Baidu. Google.cn consistently censored less than Baidu did. This is how Google executives justified the ethics of their presence in China: Chinese users, they argued, were still better off with Google.cn than without it.

Things changed for Google in 2009, however. Regulators demanded that it ramp its self-censorship up to Baidu's level. The Chinese state-run media attacked Google numerous times for failing to protect youth from smutty Web sites when — horror of horrors — those innocent kids happened to type in smutty words and phrases.

Meanwhile in the Western democratic world, the idea of strengthening intermediary liability is becoming increasingly popular in government agencies and parliaments. From France to Italy to the United Kingdom, the idea of holding carriers and services liable for what their customers do is seen as the cheapest and easiest solution to the law enforcement and social problems that have gotten tougher in the digital age — from child porn to copyright protection to cyber-bullying and libel.

I'm not equating Western democracy with Chinese authoritarianism — that would be ludicrous. However, I am concerned about the direction we're taking without considering the full global context of free expression and censorship.

The Obama administration is negotiating a trade agreement with 34 other countries — the text of which it refuses to make public, citing national security concerns — that according to leaked reports would include increased liability for content hosting companies and service providers. The goal is to combat the global piracy of movies and music.

I'm not saying that we shouldn't fight crime or enforce the law. Of course we should, assuming that the laws reflect the consent of the governed. But let's make sure that we don't throw the baby of democracy and free speech out with the bathwater, as we do the necessary work of adjusting legal systems and economies to the Internet age.

ABOUT THE WRITER Rebecca MacKinnon is a fellow with the Open Society Institute. From 1998-2001, she was CNN's Beijing Bureau Chief. She's writing a book about the future of freedom in the Internet age.

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