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Corporate Self-Regulation and Its Implications for Free Speech

By Andrew Burtless

“Just like any other global company, Yahoo must ensure that its local country sites operate within the laws, regulations and customs of the country in which they are based.”[1]

“Like other global organizations [Microsoft] must abide by the laws, regulations and norms of each country in which we operate.”[2]

“Don’t be evil.”[3]

On April 20, 2004, Shi Tao, an editor of Dangdai Shang Bao, a newspaper in Human Province, attended a meeting with the newspaper’s editors to discuss the Communist Party’s instructions on how to report the 15th anniversary of the military crackdown in Tiananmen Square. The meeting’s main topic was a stern warning from the Communist Party’s propaganda department forbidding any media coverage of the June 4th anniversary. Later that night, Tao used an anonymous e-mail account, huoyan-1989@yahoo.com.cn, to send his notes detailing this directive to a New York-based website, Democracy Forum. Just seven months later, Tao was detained and sentenced by the Chinese government for “illegally providing state secrets overseas.” The sentencing court noted that its finding of guilt relied partially upon information provided by Yahoo, an American corporation, linking Tao to the e-mail.[4] According to the
sentencing judge, Yahoo provided the court with the IP address of Tao’s computer, Tao’s account information, Tao’s telephone number, and the location of Tao’s terminal.[5] Tao is currently serving out a ten-year prison sentence.[6]

News of a well-known American corporation’s cooperation with the prosecution provoked outrage in the United States. Congress initiated an investigation of Yahoo’s role in the Chinese prosecution and Representatives publicly chastised Yahoo.[7] Although the focus of attention for this incident was Yahoo, the actions of other large U.S.-based technology companies have also implicated potential human rights violations.[8] Yet for all of its public scrutiny of technology companies’ complicity with governmental violations of privacy and free speech, Congress has not enacted any laws to guide companies that are pressured to cooperate with the demands of States at the expense of human rights. Congress has considered two bills that would have imposed civil and criminal punishments for cooperating with such kinds of governmental requests, but both efforts have been side-lined.[9]

Formed just two years ago, Global Network Initiative (GNI) is a self-described “multistakeholder group of companies, civil society organizations (including human rights and press freedom groups), investors and academics.”[10] The group was formed to “create a collaborative approach to protect and advance freedom of expression and privacy” [11] in the information communications technology (ICT) sector. At first glance, GNI represents an extraordinary opportunity to bring greater accountability to the unregulated actions of multi-national juggernauts such as Google, Microsoft, and Yahoo. Through its selfimposed obligations, GNI requires the largest market actors [12] to adopt and apply public and uniform practices incorporating international norms [13] when considering appropriate responses to governmental requests that might limit freedom of speech.

Yet upon closer examination, this seemingly powerful coalition of corporate forces and nongovernmental actors offers little reassurance to human rights advocates concerned with reining in state abuses. Putting aside the non-binding language of the GNI’s imprecisely worded Implementation Guidelines and the noteworthy lack of participation of numerous critical corporate actors, GNI’s Inaugural Report exposes the serious weakness of such a self-regulatory process. While providing an attractive public relations message to investors who “recognize that censorship and surveillance pose direct threats to the long-term viability of ICT sector companies” [14] and providing a “competitive advantage to GNI member companies by demonstrating that they are living up to their commitments and earning the trust of stakeholders such as users, investors and civil society organizations,” [15] the Report does little to ensure that ICT companies have actually complied with international human rights standards. With no benchmarks for success, no uncensored public assessments of member activities, and—perhaps most importantly—no capacity to actually punish behavior that aids and abets a state’s violations of international norms, GNI is unlikely to prevent or meaningfully curb future corporate complicity in oppressive government efforts at limiting free speech.

In order to impose significant limitation upon companies’ intent to do business with the governments of emerging markets, more than a voluntary code of conduct is required. The Kimberly Process Certification Scheme (KPCS), an international certification scheme that regulates trade in rough diamonds, offers a viable blueprint for needed regulation. Comprising states and regional economic integration organizations that are eligible to trade in rough diamonds—at present totaling forty-nine participants representing seventy-five countries, [16] with the European Community counting as a single participant—the Kimberly Process offers a comprehensive regulatory solution to an international problem. Consisting of three main areas of monitoring and control, KPCS administers an internal control system, requirements for shipping rough diamonds, and a method of tracking diamonds after export.[17] At the heart of KPCS’s efficacy lies the participation of the member states that certify the diamonds they export as “conflict free” and only import diamonds from one of the seventy-four other member countries that agree to do the same.

There are several obvious features that distinguish the sale of rough diamonds from internet censorship. KPCS is concerned with a far less pervasive international problem than corporate compliance with governmental censorship. Its modest goal is simply to prevent the legal sale of “blood diamonds,” the less than 0.1% of the world’s total diamond production that are used by rebel movements to finance armed conflicts against governments.[18] Also, whereas KPCS is concerned with the regulation and certification of a limited physical product originating from a specific source, the regulation of an intangible commodity such as internet services poses unique challenges. Given the pervasiveness of internet censorship and invasions of privacy, it is likely that such a regulatory system could only focus upon the largest ICT companies.

Nonetheless, KPCS’s structure and state oversight might prove to be a useful, if ambitious, template for the regulation of global ICT companies. By importing KPCS’s reliance upon state cooperation with other interested stake-holders, a coalition of participant nations could agree to “certify” ICT companies that agree to adhere to certain core principles regarding freedom of speech, privacy, and censorship devised by human rights groups, academics, and other civil society organizations. The coalition of member states could then condition access to a company’s services within its borders on the company’s “certification” of compliance with these basic principles. As with KPCS, a set of monitoring dispute-resolution procedures could be adopted among the member states to ensure compliance. Such a multi-stakeholder process could gain adherence through statements of support in United Nations General Assembly resolutions and the General Comments of the Human Rights Committee.

Although the regulation of corporate limitation upon free speech on the internet is doubtlessly more complex than the simple regulation of “blood diamonds,” it is not beyond reach. However, without the assistance of numerous state actors to enforce specific domestic measures discouraging such action, any self-regulatory efforts are almost certain to fail. As the home for many of the world’s largest internet companies, the United States must take a leading role in developing a process involving other states to ensure that the internet remains a place of free expression and not oppression.

1 Yahoo ‘Helped Jail China Writer’, BBC NEWS, Sept. 7, 2005, http://news.bbc.co.uk/2/hi/4221538.stm (last updated Sept. 7, 2005) (quoting a Yahoo! spokesperson responding to allegations that the company serves as a police informant to Chinese authorities).

2 Id. (quoting a Microsoft spokesperson).

3 Code of Conduct, GOOGLE INVESTOR RELATIONS, http://investor.google.com/corporate/code-of-conduct.html (last updated Apr. 8, 2009).

4 Id.

5 Shi Tao Verdict 10, (2005) http://lawprofessors.typepad.com/china_law_prof_blog/files/ShiTao_verdict.pdf (“Account Holder information furnished by Yahoo Holdings (Hong Kong) Ltd . . . .”).

6 Danny O’Brien, Attacks on the Press 2010: Internet Analysis, COMMITTEE TO PROTECT JOURNALISTS (Feb. 5, 2011, 12:56 AM), http://cpj.org/2011/02/attacks-on-thepress-2010-internet-analysis-danny-obrien.php.

7 The Associated Press, Yahoo Criticized in Case of Jailed Dissident, N.Y. TIMES, Nov. 7, 2007, at C3, available at 2007 WLNR 21954899.

8 See Derek E. Bambauer, Cybersieves, 59 DUKE L.J. 377, 418–19 (2009) (describing the responses of Google, Microsoft, Cisco, Secure Computing, Websense, and Fortinet to various governmental demands for internet censorship and filtration). Moreover, the rate of
government-sponsored internet censorship is high. Country Profiles, OPENNET INITIATIVE, http://opennet.net/research/profiles (last visited Apr. 24, 2011) (finding that approximately 40 countries filter the internet in varying degrees).

9 See Global Online Freedom Act, H.R. 4780, 109th Cong. (2006) [hereinafter GOFA 2006]; Global Online Freedom Act, H.R. 2271, 111th Cong. (2009).

10 GLOBAL NETWORK INITIATIVE, http://www.globalnetworkinitiative.org (last visited Apr. 24, 2011).

11 Id.

12 “[T]he revenue of GNI’s current company members . . . exceeds that of some nations.” Inaugural Report 2010, GLOBAL NETWORK INITIATIVE, 13, http://www.globalnetworkinitiative.org/cms/uploads/1/GNI_annual_report_2010.pdf.

13 Implementation Guidelines, GLOBAL NETWORK INITIATIVE, http://www.globalnetworkinitiative.org/implementationguidelines/index.php (last visited Apr. 24, 2011) (defining “freedom of expression” “using Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).”).

14 GLOBAL NETWORK INITIATIVE, supra note 12, at 13.

15 Id. at 12.

16 Frequently Asked Questions, KIMBERLEY PROCESS, http://www.kimberleyprocess.com/faqs/index_en.html (last visited Apr. 24, 2011).

17 See Joseph Hummel, Diamonds Are a Smuggler’s Best Friend: Regulation, Economics, and Enforcement in the Global Effort to Curb the Trade in Conflict Diamonds, 41 INT’L LAW. 1145, 1159 (2007).

18 Id.