CNet reports that the Global Online Freedom Act of 2007 has just been passed by the U.S. House of Representatives Committee on Foreign Affairs. CNet also points out that the 2006 version of the bill was also passed by the same committee last year, but never went to a full vote of the House and thus died. The proposed law would impose a series of constraints and requirements on companies like Yahoo, Microsoft, Google, Cisco and others when doing business in authoritarian countries where the Internet tends to be censored and surveilled for purposes other than what Americans would view as "legitimate law-enforcement reasons." Here is how CNet describes the proposed law:
American firms would face a host of new restrictions and obligations under the bill. For instance, they wouldn't be allowed to store any e-mails or other electronic communications containing "personally identifiable information" about their users on servers in any of the designated countries. And they'd be obligated to give the State Department a detailed breakdown of how their products' search results have been filtered and all URLs that have been removed or blocked at the request of foreign governments known to be restrictive.
If approached by local authorities with requests for users' personal information, American companies wouldn't be allowed to turn it over except for "legitimate law enforcement purposes," as determined by the U.S. Department of Justice. That provision, which enjoys support from human rights groups like Reporters Without Borders, appears to be a response to allegations that Yahoo divulged information to Chinese authorities about prodemocratic online writings by a couple of its citizens, leading to their convictions and imprisonment.
Bottom line, this proposed legislation positions the U.S. government as arbiter and judge of how companies protect human rights. What kind of joke is that.
As if the U.S. didn't have problems with a secret spying program. As if there weren't serious concerns about the way in which parts of the U.S. government lean on telecoms companies to give them all kinds of data about U.S. citizens' private communications, doing it so secretly that they're not accountable to anybody. Don't forget Americans have lawsuits in progress against companies for giving up their users' rights a bit to readily for many Americans' comfort. So why exactly should non-Americans be expected to want to use a U.S. Internet or telecoms service which is required to consult with the DOJ about their cases - yes, the same U.S. government department much maligned by many Americans, not to mention globally, for being a bit - shall we say -too open-minded about torture? Passage of such a law would seem to hand over one rather awesome marketing advantage to non-American competitors, in addition to being incredibly arrogant and hypocritical.
We need a global set of principles that assumes companies need to be on guard against abuses against their users' rights by any government in any market. And I mean any.
Click here for the post I wrote when GOFA2007 was introduced in January, expressing this type of concern in greater detail. Don't get me wrong. I have been a vocal and long-time critic of how many U.S. companies have caved into Chinese government demands for surveillance and censorship in what I believe is an unaccountable and un-transparent way - which if allowed to continue in that fashion will set a horrible precedent for business practices by internet and telecoms companies around the globe. That's why I've been actively involved in a process to develop a GLOBAL code of conduct on privacy and freedom of expression that Internet and telecoms companies should abide by, and agree to be independently evaluated about the extent to which they're living up to their commitments. No process is going to be perfect, but I still think an independent and global process has more hope of improving corporate behavor on privacy and free expression without forcing U.S. companies to disengage and be perceived around the world as arms of the U.S. government.
GOFA's intentions are honorable in many ways. I think many of the people who support it certainly have honorable intentions. I know and respect many of them, despite having had some pretty heated arguments with some members of the human rights groups who say they support it for strategic reasons. But from where I sit in Hong Kong, this proposed legislation comes off as something that my Chinese friends who hate censorship and surveillance would find arrogant, patronizing, and interventionist, with the likely result that it would kill U.S. tech companies' ability to do business in China in the first place - a result which by the way they don't think would enhance their freedom.