Title: Evaluating US Government Initiatives on Chinese Censorship

China has the world’s largest population of Internet users, with 513 million people online and more joining every day.[1] The Internet is an important part of China’s economy, accounting for 5.5% of GDP in 2011.[2] The Chinese government views the development of the Internet as an important part of its strategy to become a knowledge-based economy.

At the same time, the Internet poses challenges to China’s closed political system. As the Arab Spring has demonstrated, communications technology can play an important role in popular uprisings. In order to maximize the economic benefits of the Internet while maintaining strict social control, China has implemented an elaborate censorship system.

There are two layers to this system. First, the outer layer blocks foreign websites. This is the infamous “Great Firewall of China” which keeps selected foreign material at bay. Facebook, Twitter, and Amnesty International are among the many foreign-based websites that are completely blocked in China.[3]

The second layer of censorship filters domestic content. Interestingly, China delegates this second layer of censorship to private corporations. Chinese websites are required to meet the ever-changing demands of government censors or face fines and revocation of their business licenses, forcing companies to shoulder the cost of this self-censorship. It is estimated that Sina Weibo, a popular Chinese microblogging site, employs 1,000 people to monitor and censor its site.[4]

Circumvention Tools

One initiative that the US Government has taken in response to Internet censorship has been the development of circumvention capabilities. These are tools, such as proxies and virtual private networks (VPNs), that allow the user in an Internet-restricted country to access content that is being blocked.[5] The State Department has been a major sponsor of circumvention initiatives and since 2008 has received $US80 million in funding for Internet freedom programs. Half of these funds have gone to circumvention technologies, with most of the projects being contracted out to non-profit organizations.[6]

InterNews is one such non-profit which has received State Department funding. InterNews describes itself as an “international non-profit organization whose mission is to give people the news and information they need, the ability to connect and the means to make their voices heard.”[7] With the help of State Department funding, they launched an online campaign that provided circumvention and digital safety tools in twelve Internet-restrictive countries, including China.

In analyzing these initiatives, it is helpful to consider the perspective of Chinese Internet users, as they are the intended target audience. First, do the majority of Chinese “netizens” (Internet citizens) need circumvention tools? There are a variety of domestic alternatives to Western search engines, news websites, and social networking sites. For example, there is a Chinese alternative to Facebook called Renren. It provides much of the same functionality, but geared toward the Chinese audience. Similarly, Sina Weibo is a Chinese alternative to Twitter. According to preliminary research by the Harvard Berkman Center for Internet and Society, 95% of all web traffic in China is directed toward domestic websites.[8] This may be a sign of the success of the Great Firewall or an indication that Chinese Internet users prefer domestic content geared toward their tastes and interests.

There is evidence that circumvention tools are not widely used. It is inherently difficult to measure, but researchers at the Berkman Center estimate that only 3% of Internet users in authoritarian countries, like China, use circumvention tools.[9] With such low levels of penetration, how effective can these tools be? There is the risk that they may do more harm than good, as those who use the tools may face negative consequences, both officially and unofficially, for using circumvention tools. Such consequences could include users being labeled as traitors, unpatriotic, or a threat to the state.

From the Chinese government perspective, circumvention initiatives are seen as a form of interference in internal affairs. Chinese Foreign Ministry spokeswoman Jiang Yu said, “We [China] do not accept using the excuse of ‘Internet freedom’ to interfere in other countries’ internal practices.”[10] China believes that it has the right to govern the Internet in accordance with “its own national conditions and cultural traditions,” and cites policy rationales for censorship, including “safeguarding the public interest.”[11]

The State Department gains soft power benefits from its Internet freedom agenda. It sends a message that the US Government is a supporter of freedom of expression as it is enshrined in the Universal Declaration of Human Rights. However, this message is diluted by other contradictory State Department and US Government policies. Evgeny Morozov, a researcher who has been critical of Internet freedom initiatives, points out that consumers of circumvention tools “will be using them to fight against the very dictators that the US has supported for decades. As such, Washington will often find itself in a rather unpleasant position of training Arab bloggers to oppose the local police forces that Washington itself has armed and trained.”[12]

The Trade Issue

A second initiative that the US Government has taken in response to Chinese Internet censorship has been the use of trade mechanisms. In October 2011, the US Trade Representative (USTR) filed a request for information at the World Trade Organization (WTO) on Chinese website blocking policies. The US submitted a list of forty-five questions to gain a “fuller understanding of the legal and policy rules relevant to the accessibility of commercial websites in China.”[13] This request was in accordance with Paragraph 4 of Article III of the General Agreement on Trade in Services (GATS), which requires that “each Member shall respond promptly to all requests by any other Member for specific information on any of its measures.”[14] As of April 2012, China has not formally responded to the questions. However, in response to the request for information, Foreign Ministry Spokesperson Jiang Yu said that China “follows international practice by administering the Internet in conformity with law.”[15]

The request for information is the first step in a potential WTO case. Many international trade law analysts believe that such a case would result in a ruling that China’s website blocking policies are not consistent with its GATS commitments.[16] The policies may be in violation of GATT Article III:4 and XI:1 and GATS Article III:1.

GATT Article III:4 requires that countries should apply “no less favorable” treatment to products or services that it imports from other member countries.[17] China seems to be in violation of this clause due to its inconsistent application of censorship policies. For example, Facebook and Renren provide many of the same social-media services. However, Facebook is blocked completely in China while Renren is allowed to operate with selective filtering.

GATT Article XI:1 prohibits all non-tariff barriers on trade.[18] China’s block on foreign websites may be interpreted as a trade barrier or a form of protectionism. The blocks prevent foreign website operators from accessing the Chinese market. There is precedent in the US v. Antigua Online Gambling case for considering a ban on a service as a quota restriction.[19] Therefore, the WTO panel would likely find China in violation of this clause.

Finally, GATS Article III:1 requires that countries publish all “relevant measures of general application.”[20] China does not currently publish the guidelines that it uses to block foreign websites, nor does it publish the list of foreign websites that it blocks. Foreign Internet companies are subject to arbitrary measures that constitute a barrier to doing business in China. This claim would likely hold up in a WTO panel, further bolstering the US case.

If the WTO panel ruled against China in the hypothetical censorship case, China could appeal under the “public morals” clause of GATS.  In order to do so, China must pass a two-part test by showing that its measures are 1) necessary for public morals and national security, and 2) that there is no other less trade-restrictive option that is reasonably available. The fact that China uses selective filtering domestically suggests that there is a less-restrictive option available. Thus, China fails to meet the second criteria and would likely lose any appeal of an unfavorable ruling.

Even in the event that the WTO ruled against China and China lost the subsequent appeal, a complete end to censorship would be unlikely. In the US v. Antigua Online Gambling, the US withdrew from its trade commitments in the gambling sector and compensated the complainants.[21] China would likely follow a similar course of action in order to protect its ability to block foreign websites.

A WTO approach to Chinese Internet censorship allows the US to gain credibility through a multilateral rules-based institution. In addition, there is precedent for the effectiveness of this approach to Chinese censorship. The WTO ruled against China in US v. China — Publications and Audiovisual Products and China has since amended many of the violating policies.[22] However, the US risks exacerbating rising trade tensions with China by pursuing the censorship issue as a WTO case.

From China’s point of view, a WTO case may appear disingenuous. As mentioned previously, the Foreign Ministry spokesperson warned against “intervention in another country’s internal affairs under the pretext of Internet freedom.”[23] China may view this case as less about trade and more as an attempt by the US to alter Chinese domestic policy.

Corporate Regulation

Several US companies have come under scrutiny for the role their products play in Chinese Internet censorship. For example, Cisco Systems is currently the defendant in a lawsuit brought by Human Rights Law Foundation on behalf of the Falun Gong, a banned Chinese religious group.[24] The plaintiffs claim they were physically harmed after being identified by the monitoring hardware that Cisco provides. In addition, they have produced an internal company document that seems to indicate Cisco was actively promoting its product as a tool to quell dissent.[25] Cisco has confirmed the authenticity of the document, but claims that it was for internal discussion only and does not represent official company policy.

There are currently several bills before Congress that would prevent US technology companies from engaging in human rights abuses. One is the Global Online Freedom Act (GOFA) (H.R. 2271), sponsored by Representative Chris Smith of New Jersey.[26] The Act would first require the State Department to compile a list of “Internet-restricting countries.” Second, it would require all companies listed on the US stock exchange to disclose their policies on free expression and privacy in these countries. Third, it would forbid the sale of censorship technology to said countries. Many pieces of this legislation are modeled after the section of the Dodd-Frank Act that requires companies to disclose conflict-mineral activities.[27]

Several US companies argue that technology per se is neutral. Cisco’s routers have filtering features with a variety of applications. For example, libraries filter adult content using the same features that the Chinese government uses to censor foreign websites. The dual-usage nature of these products would make a ban on the export of censorship equipment difficult to enforce. In the end, the legislation would punish US companies and allow other foreign companies to fill the void in supplying to China’s large and lucrative market.

While GOFA attempts to prevent censorship, there is other legislation before Congress that may serve to increase it. The Stop Online Piracy Act (SOPA) would establish a national filtering network to identify and prosecute copyright infringers. This network would function in many ways like the Great Firewall of China.

Chinese Internet users may also be negatively affected by this legislation. Cisco argues that limiting its ability to sell equipment in China hurts online freedom of speech in the long-term: “We entered the Chinese market in 1994 and since then the number of Chinese accessing the Internet has grown from 80,000 to over 110 million. We know that we have contributed to that growth.”[28] By limiting the sales of US communications technology, China may be forced to rely on its own technology. This could lead to the creation of a “balkanized” Chinese Internet with further limitations on access to foreign sites.

Conclusion

This survey of several approaches to Chinese censorship across the US Government leads to several conclusions. The first is that consistency of message and actions is key for credibility on this issue. Consistency is important within an individual agency’s policies, as well as across government agencies. The State Department launched its Global Internet Freedom policies as a way to position itself as a defender of freedom of expression and human rights. However, some of its other policies and actions contradict this message. In a similar manner, Congress is considering bills that would promote global Internet freedom (GOFA) while also debating bills that would expand the role of surveillance technology domestically (SOPA). This sends mixed messages to the Chinese government and people on the United States’ commitment to principles of online freedom of expression.

There is a similar contradictory element in policies across US Government agencies. While the State Department, US Trade Representative, and Congress have made public statements in favor of online freedom, the national security and defense establishment has advocated for increased surveillance. Several cybersecurity bills before Congress would allow the federal government to access citizens’ private online information under the pretext of national security.[29] In addition, the US Government is one of the major buyers of surveillance technology, thus stimulating a market for the censorship products that are eventually exported to foreign governments.[30]

A second conclusion is that there are limits to the effectiveness of US policies that attempt to alter Chinese domestic policies. In the case of potential WTO action, it is unlikely that China would change its censorship regime even if it were found to be in violation of its WTO commitments. The concern for domestic political stability overrides any potential costs due to noncompliance with a panel ruling. Such attempts by the US to alter Chinese censorship policies will likely be met with strong resistance, as China balks at any actions that attempt to challenge its sovereignty.

While these three censorship initiatives demonstrate the limits of US Government effectiveness on this issue, there are also opportunities. The US Government can be an effective agent of soft power if its actions are aligned with its words. Secretary of State Hillary Clinton presented a vision of “one Internet, one global community, and a common body of knowledge that benefits and unites us all.”[31] While US policies are not always consistent with this vision, this message may resonate with netizens around the world who use the Internet as a tool for collaboration. Perhaps the best Internet freedom policy for the United States is to serve as a role model for online freedom and netizens’ rights. In this way, the United States may inspire Internet users in China to advocate for increased freedoms, as ultimately, any impetus to change Chinese policies will likely come from within their system.

This research was done while James Zimmerman was a 2011-2012 Junior Fellow at the Institute of the Study of Diplomacy, supported by Georgetown’s Yahoo! International Values, Communications, Technology and Global Internet Fellowship Fund.

Image Credit: Akishima Yuka, Wikimedia Commons

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