So Yahoo!, Microsoft, Cisco, and Google have been called before congress to explain themselves. Rep. Chris Smith has now formally introduced the The Global Online Freedom Act of 2006 - HR 4780 ( PDF 108.3K). (Note: webcast video of the session and PDF copies of all written testimony can be found here.)
As CNET’s Declan McCullagh points out, some of the bill’s provisions are an extremely blunt instrument, likely to be impracticable, and others would effectively place U.S. companies “in a fight” between the U.S. and Chinese governments. The Electronic Frontier Foundation has proposed an alternative Code of Conduct for Internet Companies in Authoritarian Regimes.
So now what? I hope that this draft legislation will be the beginning of a long and constructive process. I would like to see detailed analysis from all potentially affected U.S. technology companies as to whether they think this legislation would enable them to continue doing business in China, but more ethically. Several companies have said they would welcome legislation that would hold U.S. companies to common ethical standards. So now I hope that American corporations will engage with lawmakers to craft the most effective legislation that enables them to do good while still doing business. I agree, it is better for them to be engaged with China and doing business there rather than not. The issue is with the specifics of their businesses and business conduct.
None of the company representatives stayed to listen to testimony by human rights activists such as Harry Wu of the Laogai Foundation, Xiao Qiang of the Berkeley China Internet Project, and Sharon Hom of Human Rights in China. Fortunately their written testimony and video is all available here. Sharon gives some excellent advice which I hope the U.S. technology companies will take seriously. She points out that U.S. companies don’t have to roll over and play dead every time a Chinese government official invokes the law; in fact there’s lots of precedent showing that U.S. companies can help change Chinese law to make them more fair and consistent with international law:
No one sector has the silver bullet, but the first step is to acknowledge the trade-offs honestly rather than offer self-serving justifications.
Engagement and presence in the market alone will not inevitably lead to any particular result except for market access for the companies. Corporate engagement and presence in China will contribute to greater reform and openness only if it is responsible and coherent.
Vague, abstract, inaccurate reference to "Chinese law" and compliance with domestic law is an indefensible justification for undermining human rights. The obligations of companies need to be viewed in light of a coherent framework of the legal and ethical obligations of IT companies that includes the laws of the home country, the host foreign country, and the larger framework of international human rights responsibilities of transnational companies.
The partnership efforts of business and government throughout the long process of negotiations around China's World Trade Organization (WTO) accession, are a useful example and precedent of what can be done. Instead of passive complicity with existing law, no company or government was willing to enter the Chinese market as it existed, under the existing law.
Instead major demands were lobbied and negotiated for changes to Chinese law, to facilitate the interests of business and foreign governments. Following China's entry into the WTO, industry, business, and governments were and are active in promoting the necessary legislative changes, and closely monitor and assess China's compliance with its WTO obligations.
Beyond not being complicit in contributing to and legitimating Chinese government censorship, the business community and the industry has the same opportunity to exercise leadership in promoting greater openness, and human rights protections in China through their business practices, their lobbying, and support for legislative reforms.
Read on for some concrete recommendations on what the companies might do.