Can the Global Network Initiative Advance Freedom of Expression and Privacy Rights in Countries that Censor the Internet? Why It Is a Promising Start, But Still Leaves a Large Hole to Be Filled

By ANITA RAMASASTRY


Friday, Dec. 12, 2008

December 10 marked the 60th anniversary of the adoption of the United Nations' Universal Declaration of Human Rights (UDHR). U.S. First Lady and U.N. delegate Eleanor Roosevelt was the architect of the UDHR, which guarantees the political and civic rights of all people, including the rights to freedom of expression, to freedom from other forms of oppression, and to privacy. Like the UDHR, the International Covenant on Civil and Political Rights also includes rights of privacy and freedom of expression.

President Bush commemorated Human Rights Day and the 60th anniversary of the adoption of the UDHR by meeting with Internet activists (in person and virtually). Among the activists were bloggers and others who use information technologies (IT) to promote freedom of expression in countries with restricted media -- including individuals from Belarus, Burma, China, Cuba, Egypt, Iran, and Venezuela.

Bush's meeting highlighted an issue of growing concern: Although Internet connectivity has allowed many people to have access to more information and knowledge, some governments have responded to the free flow of information by censoring or blocking content, or by trying to penalize bloggers and journalists who have criticized their governments online.

In this column, I'll discuss the Global Network Initiative (GNI), a partial solution to the plight of these individuals. In particular, I will provide an overview of the GNI and explain that, while it is a promising start, it still leaves some large and unanswered questions – which may be resolved as the GNI begins its work, but will ultimately need to be dealt with to ensure its success.

Criticism of the Relationship Between Internet/ICT Companies and Repressive Foreign Governments

Major Internet companies, sometimes referred to as information and communications technology (ICT) companies have been lambasted publicly for their actions in dealing with governments that limit freedom of expression or compromise the right to privacy. Yahoo! faced the biggest outcry for providing e-mails that led to the imprisonment of two Chinese journalists. One journalist, Shi Tao, was investigated and imprisoned for 10 years after Yahoo! passed on his e-mail and IP addresses to Chinese officials. He was convicted in 2004 of divulging state secrets for posting online a Chinese government order that prohibited media from reporting on the anniversary of the Tiananmen Square massacre.

Congress held hearings on the matter and Yahoo! was sued by one of the Chinese journalists. (It ultimately settled the lawsuit). Google has come under fire, too, for censoring approximately two percent of its search results in China to comply with government rules.

These are issues that major Internet providers confront as they do business in various countries and in global markets. In some countries, governments object to content which is provided – and ask that it be removed. The governments may also ask companies to cooperate in investigations by providing the governments with names and information about their users – but that kind of cooperation may lead to repercussions not only for bona fide criminals, but also for individuals who simply have used the Internet and email to criticize the government, as is their right.

Of course, companies could choose to stay out of countries that censor speech and content. But once they do enter these new markets, they find themselves having to comply with local laws and government requests – which are often anathema to the concept of freedom of speech and expression, and to other human rights.

The Global Network Initiative and Its Principles and Goals

Over the past two years, in response to public criticism, Yahoo!, Microsoft, and Google have collaborated with human rights organizations and other NGOs that promote freedom of expression (such as the Center for Democracy and Technology) to develop a set of principles to help them deal with censorship issues in the countries in which they operate. The Global Network Initiative (GNI) provides companies with a series of principles and processes for dealing with censorship and other situations. It is a voluntary initiative. Accordingly, the companies themselves will be responsible for enforcing it.

The GNI is a so-called multi-stakeholder initiative. The three ICT providers -- along with human rights organizations, technology and civil rights organizations, and academic groups -- have created a working group that has developed principles meant to guide companies as they operate globally. As part of these principles, the three providers – Yahoo!, Microsoft and Google -- agree to promote and uphold the rights of privacy and of freedom of expression – but these rights, they recognize, are not absolute and may be limited in certain countries.

As the GNI participants note "The right to freedom of expression should not be restricted by governments, except in narrowly defined circumstances based on internationally recognized laws or standards. These restrictions should be consistent with international human rights laws and standards, the rule of law and be necessary and proportionate for the relevant purpose."

The GNI participants also note that "[p]articipating companies will respect and protect the freedom of expression of their users by seeking to avoid or minimize the impact of government restrictions on freedom of expression, including restrictions on the information available to users and the opportunities for users to create and communicate ideas and information, regardless of frontiers or media of communication." This is an express recognition of the fact that some governments will try to curb freedom of expression—and thus, that the GNI will seek to minimize the impact of censorship, not to always prevent it.

The two core human rights principles that the GNI seeks to promote are freedom of expression and privacy. The participating companies are trying to promote these rights by (a) advocating principles which support human rights as part of their framework, (b) calling for more effective ways for ICT providers to actually deal with governments who wish to censor content or to compromise a user's privacy, and (c) providing guidance for companies on how to monitor and improve their responses to government requests.

Will the GNI Be Effective? Reasons Why It May Do Some Good

How will the GNI actually lead to any improvement in freedom of expression overseas? First, the GNI requires companies to engage in human rights impact assessments when they enter new markets – requiring them to pay close attention to the legislative and political environments in which they operate. These assessments will allow companies to identify circumstances when freedom of expression and privacy may be jeopardized or advanced, and develop appropriate risk mitigation strategies.

The GNI also calls upon companies to be more proactive in advocating for these human rights with host governments. One of the implementing principles states, for example, that "[p]articipating companies will encourage governments to be specific, transparent and consistent in the demands, laws and regulations (‘government restrictions') that are issued to restrict freedom of expression online."

The companies joining the initiative have also agreed to follow a loose set of principles, including a commitment to consider fighting unwarranted government demands in the court. The principles state that "it is recognized that it is neither practical nor desirable for participating companies to challenge in all cases." Rather, companies can select cases based on the severity of the harm caused by censorship, for example.

Can GNI Help Users in Countries that Infringe Their Speech and Privacy Rights?

What about measures that could directly assist Internet users in repressive countries? On this score, the three GNI companies -- Google, Microsoft and Yahoo! -- are meant to disclose to the user when they are required to censor or block content, unless they prohibited from doing so by local law. For example, if a webpage is blocked, the company might put a notice up on the website stating that the government has required the company to take down or to block the site.

This goal of transparency is laudable – but it remains to be seen how many governments will permit companies to make such affirmative disclosures. To the extent that disclosures are made, this will help raise awareness of the impact of censorship on Internet freedoms of speech and information.

Each participating company is also meant to establish means for users to complain about a company's decisions, and to provide a means of remediation when business practices that are inconsistent with the GNI principles are identified. Such remedies, in turn, are to include meaningful steps to ensure that such inconsistencies do not recur. As part of this effort, there are meant to be mechanisms through which users or citizens may communicate with the companies to the extent that they feel aggrieved by a company's actions and its responses to government pressure.

Companies are also meant to maintain a record of requests and demands for government restrictions to freedom of expression and access to personal information.

Finally, companies are also required to provide whistle-blowing mechanisms or other secure channels, through which employees and other stakeholders can confidentially or anonymously report violations of the GNI principles without fear of associated punishment or retribution.

Will the GNI Be Effective? Only to a Limited Extent

At the end of the day, however, there are limits to the GNI – because it is voluntary, and because companies are opting to do business in other countries with the permission of the foreign governments. Amnesty International, which had participated in the consultations to develop the GNI, ultimately withdrew from the process, and did not endorse the principles, because of what it noted were serious weaknesses arising from these limits.

After the Yahoo! incident in China, Congress debated legislation – entitled the Global Online Freedom Act -- that would have made it a crime for U.S. companies to divulge personal data about their users to authorities in "Internet-restricting countries." The legislation did not pass – perhaps because its impact might have been to require companies to leave certain countries where it would be impossible for them to flout local law compelling them to turn over such information. The GNI, in contrast, allows companies to remain active in politically-sensitive markets – which has the benefit of providing content to many people globally that they otherwise might not have been able to access.

But what remains to be seen is whether companies that participate in the GNI will become more active in seeking greater Internet freedom for users through their actions and dialogues with governments wherever they operate. In this area, more information is needed: How difficult and/or dangerous is it, in particular countries, for ICT companies to actually challenge government requests? Are companies being consistent in they way in which they approach the issue of censorship in various markets? Granted, cultural differences and differing legal systems will not make consistency always possible, but it seems useful for companies to create a benchmark or standard as to what they usually will do – from which they then can depart for good reason.

Ultimately, the GNI is a good first effort to try to add consistency to the ways in which companies approach the issues of censorship and human rights in all of their countries of operation. This voluntary initiative is best seen as a framework to help Internet companies do the due diligence that can help them avoid the ethical lapses for which they've been roundly criticized. Whether companies are more systematic and consistent in their adherence to the GNI principles, however, will only be tested over time.

Importantly, the current GNI guidance documents do not offer specific guidance on how a company's employee is supposed to respond when presented with a particular set of circumstances. It is only through building an actual repository of cases and recommendations that the GNI will become more consistent and have more impact.

To Truly Succeed, the GNI Also Needs More Non-U.S. ICT Providers as Participants

Another reason the GNI is far from a complete solution to issues of Internet freedom and censorship is its limited coverage. Local and state-owned Internet Service Providers (ISPs) in each of the countries at issue do not participate in the GNI. Moreover, if the local ISPs wanted to join, their own governments might prohibit them from doing so.

GNI participants state that they will seek to extend the number of organizations from around the world that support the GNI Principles, so that the Principles can take root as a globalstandard. Let's hope this happens – for without global buy-in, this is simple a voluntary initiative of a few American companies.

Finally, other critics have noted that many transnational ICT companies have local partners as investors, and often lack operational or management control of such companies. This is the case in China, for example. In cases where a participating ICT company doesn't have active control over its business in a particular country, the GNI calls on the company to "use best efforts to ensure that business partners, investments, suppliers, distributors and other relevant related parties follow these Principles."

One relationship that is sure to be watched is the one between Yahoo! and Alibaba, the leading Chinese Internet company. Alibaba acquired control over China Yahoo! In 2005. As part of the deal, Yahoo ! acquired a 40% stake in Alibaba. Alibaba has not yet commented on the GNI. Eventually, Alibaba will need to take a position – whether vocally or by its silence on the matter.

At the end of the day, the GNI is a set of useful premises. Ensuring the premises will have teeth or substance will be a challenge requiring strong effort from the GNI participants. Let's hope that their efforts bear fruit.


Anita Ramasastry is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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