RConversation

U.S. and China on Internet freedom vs. security

Last week I attended a quiet event in San Francisco called the U.S.-China Internet Industry Forum, organized by Microsoft. This is the forum's third year - last year they met in Shanghai and the year before in Redmond. Attendees included executives from major U.S. and Chinese Internet companies, a few academics, and government officials from both countries - the highest ranking being Cai MIngzhao, Deputy Director of the Chinese Communist Party's Propaganda Department, and Robert Hormats, U.S. Undersecretary of State for Economic, Energy, and Agricultural Affairs. The event was an opportunity for key players from industry and government - from the country which invented the Internet and the country with the world's largest number of Internet users - to hold frank conversations in a relatively informal setting without the pressure of government or business negotiations. For a good part of the time, however, I felt like I was in the middle of a more sophisticated and nuanced version of this video mashup on YouTube:

For readers who don't follow all the twists and turns of Chinese Internet policy and/or understand Chinese, a bit of background. (For people who do, skip down below the jump.) Earlier this year, the Chinese government issued an edict requiring that all computers sold in China after July 1st had to come pre-installed with censorware called Green Dam-Youth Escort. While the ostensible purpose of this software was child-protection, it also censored political content and subjected users to external monitoring. (The government later backed down on this edict as a result of industry backlash.) Soon after the government edict became public a BBC journalist asked Chinese Foreign Ministry Spokesman why the government was requiring Green Dam censor-ware on all of China's computers:

Qin Gang's response: 

"do you have any children? If you have any children or you are expecting some, you can understand the concern of the parents over the harmful Internet content. The Internet in China is open and the Chinese Government endeavors to promote sound development of the Internet. However, the Government also regulates the Internet according to law so as to safeguard the interests of the public and prevent the spread of harmful content."

The video juxtaposes Qin's statement with President Obama's remarks about the Internet at his town hall event in Shanghai: 

"Think about -- when I think about my daughters, Malia and Sasha -- one is 11, one is 8 -- from their room, they can get on the Internet and they can travel to Shanghai.  They can go anyplace in the world and they can learn about anything they want to learn about.  And that's just an enormous power that they have.  And that helps, I think, promote the kind of understanding that we talked about."

Back to the U.S.-China Internet Industry Forum. Much of the day-and-a-half long forum was under the Chatham House Rule, which means that participants can report on what was said but can't attribute anything directly. There were, however, several on-the-record keynote speeches. Cai and Hormats echoed the Qin-Obama riff. Here is how Xinhua News Agency reported Cai's speech:

An important part of network security was to ensure the security of online information, said Cai Mingzhao, former deputy director of China's State Council Information Office and an adviser to the Internet Society of China [note: they omitted his Communist Party post], which co-hosted the one-and-a-half-day forum with Microsoft Corporation.

Pornography, fraud, spam, online attacks and computer viruses were serious threats to information security and were impairing the public's confidence in the Internet, he said in a keynote speech on Thursday.

"Under such circumstances, it is not enough to emphasize the free flow of information alone. Information security should be put in a prominent position," Cai told an audience of more than 100 government officials, business leaders, academics and other representatives from both countries.

"If network information security is not guaranteed, the information flow will become irregular. If illegal and harmful information are allowed to flow rampantly without checks, it will do great harm to the real society," he said.

Cai said the first priority of ensuring online security should be protecting adolescents, as teenagers had become the largest online group and whose growth was increasingly influenced by the Internet.

Each country has its own unique circumstances, differing from each other in Internet penetration, economic and social development, cultural traditions and laws, Cai said, adding that ensuring online security should fully respect the cultural diversity and concerns of all countries.

"Therefore, Internet security around the world is unable to be measured by a unified standard. It is impossible to regulate security with a single law or manage it in a single pattern," Cai said.

What Xinhua did not report is that Cai called for the U.S. and China to move beyond differences and instead work together on four issues of common concern: Child protection, online intellectual property protection, spam, and cyber-security. He called on the two sides to create specific bilateral workstreams focused on these issues. 

Hormats, on the other hand, spoke of common ground but also made it clear that the differences are meaningful. While Chinese media covered Cai's remarks, they did not mention any elements of Hormats' talk that differed from Cai's views. No U.S. media appear to have reported on the forum at all - at least not on news outlets available to the public domain. The State Department has not released a transcripts of his remarks either. I took notes and made a recording of his on-the-record speech in which Hormats emphasized that Internet freedom is important to the  U.S. government. Here is an extended excerpt of the portion of the speech devoted to free expression (with relevant links added):

...The Internet offers us an unparalleled opportunity to acquire knowledge if we allow ourselves unrestricted access to it. As president Obama noted in his townhall meeting, freely flowing information allows people to think for themselves and to generate new ideas. It also encourages a great deal of creativity. this is true not only politically but also economically. The internet has produced entire new industries and revolutionized distribution of design and development of both goods and services. Unrestricted access to information is vital to the types of innovation that spark economic growth.

...It is the users and developers of online content who make our connections to the world wide web so valuable. Secretary Clinton has made improved access to information a significant part of her policy focus. She stated in a recent speech: "President Obama and i are committed to defending freedom of expression on the new terrain of the 21st century." Within the State Department our newly revitalized Global Internet Freedom Taskforce is ready to play a leading role in this critical effort. The task force, a policy coordinating body within the state department, co-chaired by myself and the State Department's Undersecretary for Democracy and Global Affairs Maria Otero, works to advance free expression and access to information on the Internet. The State Department monitors and reports on threats to Internet freedom around the world. It pursues the free flow of information and freedom of expression on the Internet in our bilateral relationship and through multilateral organizations as well. 

The right to freedom of expression and the importance of the free flow of information over the Internet were confirmed by all participating governments at both phases of the World Summit on the Information Society in 2003 and then again in 2005, including the Tunis Commitment, and continue to form the foundation of U.S. government efforts on Internet freedom throughout the world. 

We also work closely with individual companies and industry groups to foster improved access to information. one example is the Global Network Initiative, a group of leading private sector companies, NGO's, academicians and investors, that seeks to advance both freedom of expression and privacy in information and communication technologies. A number of the authors and leading advocates of the GNI are represented here today, and i commend them for their vision and their initiative. As president obama noted in his town hall meeting in Shanghai, we believe that certain core principles enshrined in our founding documents are universal rights also present in international documents like the universal declaration of human rights and we speak out for these principles around the world

We believe that commerce should be open and the information should generally be freely accessible. we recognize that potential downsides and risks may come with new technology, such as threats to children and online ability of terrorists to use the internet to organize. we look forward to working with China and the private sector both here and abroad to mitigate these risks while maximizing the free flow of information. 

Hormats commended China for embracing the Internet and the global telecommunications revolution. He spoke at some length about the importance of the Internet in economic growth and recovery around the world. He also expressed concern about barriers erected by Chinese regulators against U.S. companies entering or fairly competing in the Chinese market. Later in the speech he also emphasized the importance of child protection, cyber security, and protecting intellectual property. If a full transcript of the speech becomes available later I will link to it here. (Update 12/19: An overview post about the forum by Microsoft VP Pamela Passman can be found here, and the transcript of a speech by Microsoft's Chief Research and Strategy Officer Craig Mundie is here.)

In a closed door session devoted to Internet governance later that morning (which, according to the Chatham House Rule I can report on in general as long as I don't quote or attribute anybody directly), another Chinese official and another U.S. official outlined their governments' positions, with corporate and academic participants also contributing. 

The Chinese side emphasized that if Americans better understood the challenges faced by the Chinese government in maintaining social order, and if they realized that Chinese citizens hold high expectations toward their government in that regard, Americans would be more sympathetic to the Chinese government's policy choices and actions. Social problems tend to be amplified online and if people are allowed to do whatever they want on the Chinese Internet that would disrupt social stability, which they pointed out is in nobody's interest, and - given the Chinese Internet's size - isn't conducive to shared global goals of child protection, cyber-security and intellectual property protection anyway. They appealed to the Americans to focus more on commonalities and not try to impose their values on everybody else. 

The U.S. side focused more specifically on the future of global Internet governance, emphasizing three overarching goals: interconnectivity, free flow of information, and preserving the Internet's "dynamism." The best way of preserving that dynamism is to "leave it alone" as much as possible, and specifically not to put Internet governance in the hands of an "intergovernmental institution." The U.S. government supports a multistakeholder approach with a leading role for ICANN accompanied by a renewed mandate for the Internet Governance Forum. Putting Internet governance in the hands of inter-government bodies such as the U.N.'s International Telecommunications Union is not desirable because such institutions can't keep up with the pace of technological change.  Restrictions on the free flow of information should be a "rare exception" in very narrowly defined cases of child pornography, human trafficking, and terrorism. Errors of under-reaction and over-reaction can only be achieved through continuous dialogue between public and private sectors. 

Asked to make some brief comments, I suggested that we combine components of both Chinese and U.S. suggestions made that day. Why not set up U.S.-China "work streams" to drill down on problem-solving in specific areas Mr. Cai suggested like cyber-security, child protection, and intellectual property. But as both Hormats and other U.S. officials pointed out, the Internet is what it is today not just thanks to the efforts of governments and big Internet companies, but because of the actions and choices of small entrepreneurs and individual Internet users of all kinds. Therefore it only makes sense that such work streams should be truly multi-stakeholder in nature, including members of civil society, representatives of user groups, consumer groups, open source programming groups, and other stakeholders - because after all, no solutions to any of the problems discussed are going to succeed without broad-based support and buy-in from netizens around the globe. Models for multi-stakeholder problem-solving are still in their infancy and have much room for improvement (as neither members of civil society nor the Chinese government hesitate to point out). So why not experiment with using bilateral meetings as an opportunity to improve on the multi-stakeholder model - in a more narrow situation involving only two cultures, instead of hundreds? A number of American heads nodded. I did not detect a positive reaction to this idea from the Chinese side. They did tell me that they wished my criticism of their censorship would be better balanced by an explanation of all the reasons why they need to do what they do. A corporate person asked me what might be done to help bridge misunderstandings between the two countries. I suggested that more direct dialogue between citizens of both countries - and more platforms to facilitate such interaction - would be helpful. 

Of course, the problem is that the Chinese citizens participating in such citizen dialogue may not necessarily be in lockstep with their government's positions... And oh yeah, you don't really need to build anything new or special because there are all kinds of great social networking platforms like Twitter and Facebook out there... But wait they're blocked in China so Americans only wind up interacting with the most determined Chinese Internet users who are angry about censorship and figured out how to use circumvention tools....Which is why in another keynote speech at the forum, Wikipedia founder Jimmy Wales argued that the best way for China to get its story out is to let its citizens communicate with the world through unblocked platforms...

...sigh....

China tightens Internet controls in the name of fighting porn, piracy, and cybercrime

As the year draws to a close, China's blocking of overseas websites - including Facebook, Twitter, and thousands of other websites including this blog - is more extensive and technically more sophisticated than ever. Controls over domestic content have also been tightening. People who work for Chinese Internet companies continue to complain that they remain under heavy pressure to be more thorough about the way in which they police and censor blogging platforms, social networking sites, discussion forums, and any form of user-generated content. As feared, the censorship arms race, which began in the run-up to the anniversary of the June 4th crackdown, intensified after the Xinjiang riots, and ramped up further in the run-up to the October 1st 60th Anniversary of the People's Republic of China passed uneventfully.  

The past few weeks have seen four new moves which are not officially or overtly aimed at political content, but which have implications for the way in which the government controls all conveyors of all kinds of speech. First, late November saw the launch of a mobile porn crackdown. The draconian way in which this crackdown is being implemented, however, involves a great deal of collateral damage for non-pornographic content. For example, the crackdown has caused China Mobile and other wireless carriers to suspend all billing of all WAP and G+ mobile services, including those by legitimate companies in good standing who are not involved with porn. As this article in Chinese on DoNews points out, the mobile content market in China is growing fast and getting quite lucrative.

Second, Chinese the state-run media is going after the search engines again for - horror of horrors, turning up smutty results when users search for smutty information. In early December, China Central Television (CCTV) ran a report which accused Google, Baidu, and Sohu of irresponsibility. According to the research firm JLM Pacific Epoch: 

"The report said Google "persisted in its old ways" and "explored every avenue to avoid China's 'anti-low-brow' campaign" after previous reports on the subject by the state broadcaster but noted that Google's English version contains content far more obscene than its Chinese language site. None of the three parties has made any official response, the report said." 

I would not want to be running Google China these days. No fun.

Third, last week the government shut down more than 500 file-sharing websites as part of an anti-porn and anti-piracy crackdown, on the grounds that these websites don't have proper licenses. For a sampling of Chinese netizen reaction, see Global Voices Online and People's Daily Online.   ReadWriteWeb points out that given China's strict government controls on what movies can legally be shown, these sites are the only way for many Chinese to access a lot of content. Much political jockeying by the more established services is now underway, and Xinhua indicates that the largest file-sharing site, VeryCD is fighting for survival. 

Fourth, CNNIC, the organization which runs the .cn top-level domain has announced that it is no longer accepting domain name applications from individuals. The stated reason in news reports is to control abuse of the .cn domain name space by criminals. Under the new rules, if you want to buy any domain name ending in .cn you have to provide ID and proof of company or organizational registration. As the Internet Governance Project's Milton Mueller puts it, "China's government is using its control of domain names to impose more strict controls over the Internet." Chinese Internet users have an interesting take on this latest development. Some like William Long say that this is actually a good thing, because anybody who isn't in lockstep with the Chinese government is better off staying away from .cn to begin with. Since January he has been urging Chinese Internet users not to use .cn domains, even posting instructions for how to buy domains on GoDaddy, arguing that .cn domains are too risky because the government could take the domain away from you at any time on vague grounds that you are violating some Chinese law, regulation, or whatever. 

It's also worth noting that CNNIC is now applying to ICANN to run .中国 - and plans to apply for .网络 and .公司 whenever ICANN opens up the application process for generic top-level domains. As the Internet's domain name system becomes multilingual, will the Chinese language domain space be hospitable to anybody who is not in total synch with the PRC government? The answer is pretty clear by now: only if non-PRC entities can run Chinese-language top-level domains outside of China. Will ICANN ensure that this will indeed be possible? We don't know yet. ICANN is still formulating the application process for new generic top-level domains, which includes the details of a process by which governments can object to - and potentially block - applications.

Can authoritarianism survive the Internet?

I recently gave a talk to the annual luncheon of the World Press Freedom Committee in Washington, D.C. 

An edited transcript of the talk has been compiled by the WPFC and posted here. I recorded the speech on my iPod and below is a slidecast of the talk. Apologies for the less-than-ideal audio.

Can authoritarianism survive the Internet? Yes it can...

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Muzzled by the United Nations

The Internet Governance Forum is winding down today in Sharm El Sheikh, Egypt. There have been a lot of very constructive conversations in workshops and panels over the past four days about how to advance security, privacy, child protection, AND human rights and free expression on the Internet. Unfortunately, the biggest headline coming out of the forum so far has been an incident on Sunday in which a poster promoting a book about censorship by the Open Net Initiative was removed by U.N. security. See reports by the BBC, the Associated Press, and the ONI's FAQ on the incident. Also see a YouTube video of the incident, and video of IGF Chairman Markus Kummer explaining the incident.

Kummer said in his briefing that the UN has a "no-poster policy," although various other posters have in fact appeared at various times throughout the conference. One example here.  According to those present during the ONI incident, the reason for the poster's removal given by U.N. security officials at the time was that a U.N. member state had complained about it. Given that the poster mentioned Chinese Internet censorship, we can guess which member state objected.

The Chinese government made it clear earlier this year that they do not want the IGF to continue.  Veteran IGF attendees have pointed out that there has been no Chinese-organized panel or workshop this year, in contrast to previous years. In conversations in the corridors with some participants from Western governments and other organizations, a number of people have expressed concern that China is feeling alienated. Nobody is sure what China's next move will be, and there is worry that the Chinese government may ally itself with some other governments in a move to end the IGF after its initial five-year mandate expires next year.

In a workshop about governance of social networks on Tuesday afternoon, I raised a number of specific examples of how various governments are moving to stifle free expression by their citizens on social networking websites through a variety of censorship and surveillance measures. I also raised other problems that some  human rights activists in specific countries have encountered when using social networks to document human rights violations or organize political movements:  they sometimes get their accounts shut down by company administrators because their images documenting human rights abuses are too violent or the pattern of their political organizing activity is too similar to spamming. Examples included:

• China's system of censoring blogs and social networking services: Overseas services like Twitter, Facebook, YouTube, Flickr, Blogspot, and the like are blocked in China. As a result most people in China use social networks and blogging services run by domestic companies which are held liable for everything their users post on their services. These companies end up having to set up up entire departments of employees whose job it is to monitor and censor all user-generated content on their services. Foreign companies wanting to create localized versions are expected to do the same. MySpace is one company that ended up doing so, though many other companies - including Facebook - have opted for now not to set up censored versions of their services inside China, despite the fact that this denies them access to a large user base, because they are uncomfortable getting so deeply into the censorship game.
• South Korea's real-name registration system, which caused YouTube to disable video uploads and comments on YouTube Korea. Google was concerned that hosting such data domestically inside Korea might cause the company to violate the Global Network Initiative's principles on free expression and privacy, which Google has committed to uphold.
• Egyptian blogger and journalist Wael Abbas used YouTube to document human rights abuse and torture by the Egyptian police, and got his account suspended by YouTube administrators because they thought he had violated Terms of Service banning "gratuitous violence."
• Grassroots political activists in a range of countries from India to the United States have had their Facebook accounts suspended because Facebook's automated systems thought they were spammers.

This afternoon (4pm local time, 9am EST, 9pm Beijing) I will be speaking on a plenary panel about social networks. I and the other panelists have been told very clearly by people in charge that we can't mention specific U.N. member countries, and we're discouraged from "naming and shaming" any other kinds of specific entities as well. It's going to be rather difficult to discuss emerging issues related to social networks without being able to give any specific examples of specific countries and companies. More broadly, it's rather difficult to make progress in global Internet governance without being able to discuss specific cases in the public meetings, or applying any value judgments to what any of the actors are doing. But that's the United Nations for you. Last night I considered whether it even made sense for me to remain on the panel. I decided to stay on it because I hope that I can get a message across - albeit generically - about free expression concerns on social networks, and how the Global Network Initiative is one way to help companies navigate these concerns.

For what it's worth, live video of the session will be here.

Happy Internet Human Rights Day!

Today is the 98th anniversary of the 1911 Wuchang Uprising which led to the collapse of the Qing Dynasty and founding of the Republic of China in 1912. (I wonder how the 100th anniversary will be celebrated in the People's Republic two years from now?)  To mark the occasion, 15 Chinese intellectuals have issued a Declaration of Internet Human Rights, suggesting that netizens of China and the world celebrate October 10th to be Internet Human Rights Day.

C.A. Yeung at the blog Under the Jacaranda Tree has done a great public service and posted a translation. I've made a few small changes which I think clarify the meaning of the original Chinese version. Here it is:

Internet Human Rights Declaration
Issued by 15 Chinese Intellectuals

Those of us who are standing on the riverbank overlooking the torrent of history have witnessed the potential of this new technology: the Internet. We understand how this new technological revolution has brought about progress and social change. It has great potential to advance basic human rights and freedom for the Chinese people. Its contribution to civilisation will be on a par with the discovery of iron and fire, or the invention of plough and wheel in ancient times.

We acknowledge the arrival of netizen activism and regard it as an irreversible trend. Citizen reporting, which involves the use of mobile phones and digital cameras for live information dissemination, has already become a popular trend. The Internet has also provided netizens with unlimited space for creativity, and for voicing opinions through weblogs, podcasts, BBS and online comments.

We believe it is a citizen’s responsibility to be concerned about public affairs, and a netizen’s responsibility to care about freedom of speech on the Internet. Netizens are exercising their civil rights when they legally express their opinions or when they report the truth of what has actually happened. The best way to rejuvenate an ancient civilisation is to inject it with new core values based on the advancement of happiness and of basic human rights for individuals. It is also the best way to improve well-being for everyone in China. For these reasons, freedom of speech on the Internet should be encouraged, nurtured and tolerated.

We therefore pledge for the following principles to be endorsed:

1. Freedom of speech on the Internet is a part of citizens’ rights to freedom of speech. It is the most basic human rights and the most fundamental value that should be pursued, treasured and protected.

2. Netizens who express their opinions on the Internet using words, sounds, pictures or videos, should be protected and encouraged, as long as such conduct is in accord with the constitution and local statutes.

3. The right to publish opinion is the most basic rights for netizens. This includes the right to publish through weblogs and podcasts, as well as online discussion forums. Netizens’ rights to publish should not be subjected to unlawful investigation and interference. They should be allowed freedom to hold and to express their views without feeling intimidated.

4. Netizens’ editorial rights should be respected. When they are exercising those rights, they should not be subjected to harassment by authorities who act outside of law.

5. It is the right of Netizens to conduct interviews and to report their findings. This right is protected as a part of their constitutional rights to freedom of speech. Netizens who excercise this right should endeavour to report the truth, and to avoid distortions, fabrications and malicious slander.

6. It is the right of netizens to make comments and to exchange opinion. This includes the right to ask questions, to monitor, to criticise and to boycott.

7. Netizens’ freedom of speech encompasses a right to express themselves anonymously. Anonymity enables some authors to express their opinions in ways that best suit their needs. This legal right should be respected as long as an anonymous author is expressing his views in accordance with legal and constitutional requirements.

8. The right to search for information on the Internet is an integral part of netizens’ rights to expression, to be informed, and to act as watchdogs. It is our opinion that law-abiding websites should not be filtered, and that netizens’ rights to conduct searches on public information for personal use should be respected and protected.

9. Online privacy should be respected and protected. Netizens’ real identities and personal information should not be disclosed unless the information is required for a transparent legal proceeding, or else if the disclosure is necessary under the rule of law.

10. The free flow of information should be respected and protected as long as it is conducted in line with legal and constitutional requirements. Website monitoring, filtering and blockades that go against the principle of freedom of speech should be condemned by public opinion. Netizens are entitled to seek freedom of expression and justice through judicial proceedings.

We call for the establishing of an Internet Human Rights Day, to remind everyone of the need to safeguard freedom of speech on the Internet. This is the only effective way to make sure all people in China enjoy human rights and happiness.

10 October 1911 was the day when a group of patriots staged an uprising to end the rule of a cruel and racist dynasty. They also put an end to a long imperialist history. As a way of commemorating their bravery and their spirit of freedom, we suggest to make every October 10th China’s Internet Human Rights Day.

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Obama administration disappoints on civil liberties

On Thursday the Senate Judiciary Committee voted to renew all of the powers granted to the U.S. government by the USA PATRIOT act - passed hastily in 2001 in the wake of the 9/11 terror attacks - that were set to expire by the end of this year.

The committee rejected changes that would have strengthened the protection of Americans' civil liberties and privacy while still retaining expanded power to conduct anti-terrorism investigations. They also voted to approve Republican-sponsored amendments - most of them recommended by the Obama administration - that removed remaining civil liberties protections left in the bill.

Firedoglake blogger Marcy Wheeler has the most comprehensive coverage and analysis of everything having to do with the PATRIOT Act, including an annotated live blog of yesterday's proceedings. Highly recommended.

Here is a sampling of what disappointed civil liberties defenders had to say:

Leslie Harris, Center for Democracy and Technology (as quoted by PC World): "The administration deliberately took a wrong turn on civil liberties here... The administration even opposed civil liberties protections that President Obama sought as a senator."

Kevin Blankston, EFF: to everybody who voted "yes" on Thursday "and especially the Obama Administration: you let down the American people today, undermining our constitutional rights and endorsing a bill that doesn't do nearly enough to protect our privacy."

ACLU's Michael Macleod-Ball in a press release: "We are disappointed that further changes were not made to ensure Americans’ civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportunity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans’ Fourth Amendment rights. The meager improvements made during this markup will certainly be overshadowed by allowing so many horrible amendments to be added to an already weak bill. Congress cannot continue to make this mistake with the Patriot Act again and again. We urge the Senate to adopt amendments on the floor that will bring this bill in line with the Constitution."

CATO's Julian Sanchez on Twitter during the proceedings: "Soul slowly dying."

Democratic Senator Russ Feingold, who voted against Thursday's reauthorization bill, wrote a lengthy post on Daily Kos explaining why. A lengthy excerpt:

Before I get into the specific provisions that concern me, I want to say how disappointed I was in the debate in the committee. Today particularly, I started to feel as if too many members of the committee from both parties are willing to accept uncritically whatever the executive branch says about even the most reasonable proposed changes in the law. Of course we should consider the perspective of the FBI and the Justice Department.  Keeping Americans safe is everyone’s priority.  But we also need to consider a full range of perspectives and come to our own conclusions about how best to protect the American people and preserve their freedoms.  Protecting the rights of innocent people should be a part of that equation.  It's not the Prosecutors’ Committee; it's the Judiciary Committee. And whether the executive branch powers are overbroad is something we have to decide. The only people we should be deferring to are the American people, as we try to protect them from terrorism without infringing on their freedoms.

I am also very troubled that administration officials have been taking positions behind closed doors that they are not taking publicly.  I am pleased that we have not heard the type of public fear-mongering from this administration that was such a regular part of the discourse in the past.  But if the administration wanted to further water down the already limited reforms in the bill that was on the table, they should have said so openly.  Instead, at our only public hearing we were told that the Justice Department did not have positions on the crucial issues about to be discussed.  Then, over the past week, in classified settings, the Department has weighed in against even some of the limited reforms that Sen. Leahy originally proposed.  That led to the unusual spectacle today where many members of the committee based their decision to further weaken the bill on a classified briefing held yesterday, but could not fully discuss or debate their reasons.  As a member of the Senate Intelligence Committee, I am privy to every bit of the classified information that was referred to today.  And nothing presented in the classified briefings justifies the failure to address the real problems with the expiring Patriot Act provisions and other intrusive powers.

Furthermore, much of this debate is not about classified matters.  Continuing to hide behind a veil of secrecy is not fair to Congress or to the American people.

He concludes:

Democrats have to decide if they are going to stand up for the rights of the American people or allow the FBI to write our laws.  For me, that’s not a difficult choice.

Next stop: the Senate Floor. For those readers who are American citizens, please contact your Senator and tell him or her to stand up for your rights.

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Is America getting more like China?

Since Obama became President - and yes, I voted for him - there has been a great deal of optimism and energy around the idea that the Internet can be used to improve  or "reboot" our democracy. The Administration has hired some great people to work on making government more open and transparent.

This is all great. But how much good will all of this nifty e-government do for American democracy if citizens' rights to privacy and free expression are not also fiercely defended?

On that score, the Obama Administration has been dangerously disappointing. This month's news makes me feel like the U.S. is getting more like China in some ways.

A man who was using Twitter to help coordinate G20 protests in Pittsburgh was arrested and had his home searched because he posted information about police movements on Twitter. For more on that story see the New York Times, Democracy Now (with a video interview of Elliot Madison and his lawyer), the Huffington Post, the CDT's Policy Beta blog, and the Digitaldumonde blog.

The FTC has released new commercial endorsement guidelines for anybody who ever posts anything online, be it on a blog, Facebook, Twitter, Amazon reviews, or wherever (except professional journalists who are exempt thanks to the First Amendment which seems only to apply to some Americans these days).  While the guidelines are well intentioned and aim to promote honesty in product promotion and protect consumers on the Internet, they are so broad and vaguely worded that they could only be enforced selectively and unfairly. As Salon's Jack Shafer describes them: "They are written so broadly that if you blog about a good and service in such a way that the FTC construes as an endorsement, the commission has a predicate to investigate." What's more: "As I read the guidelines, the FTC could investigate you if you did disclose but it was not satisfied with the disclosure." See more critques from Dan Gillmor, Jeff Jarvis, the LA Times, and Jeff Bercovici at Daily Finance. As free speech activists living in authoritarian countries like China - or even pseudo-authoritarian pseudo-democracies like Singapore - will readily tell you, over-broad and vague regulations of speech are dangerous because there's no way to enforce them uniformly or fairly. So authorities enforce them selectively based on often arbitrary and generally un-transparent criteria.  Such regulations become a great umbrella excuse to stifle speech that powerful people don't like for whatever reason. Over-broad regulations also have a chilling effect on speech because people tend to over-compensate in order to avoid trouble.

Then there's the matter of the media shield bill currently before the Senate Judiciary Committee. The idea is to pass a law that would protect journalists who refuse to divulge their confidential sources in federal court. It was bad enough that the definition of "journalist" has now excluded citizen media, bloggers, and student journalists completely. Even worse, the White House has now proposed changes to the bill that would substantially weaken professional reporters' protections. As the New York Times editorial page points out, so much for Obama's promise of transparency:

At the heart of the disagreement is the balance between national security and the public’s right to know. The best approach is to protect legitimate security claims while rejecting those that are made in the name of national security but are really aimed at avoiding embarrassment. That was the constant cry from the Bush administration as the public learned — through the unauthorized disclosure of confidential information — of prisoner abuse, secret C.I.A. prisons for terrorist suspects and warrantless wiretapping.

The Senate bill and a measure passed earlier in the House aim at a reasonable balance by relying on a federal judge to decide when security is not truly at risk and sources must be protected. The White House proposals would instruct judges to defer to the administration’s view of when and if a news leak presents a “significant” security leak. The executive branch would arrogate power to decide the public’s right to know by crimping the news media’s ability to make a case for disclosure.

As Michael Masnick at TechDirt puts it:

If you want to create a chilling effect against any sort of whistleblowing on gov't corruption, that's what this proposal does. It basically lets the gov't say that the shield law only applies to whistleblowing that doesn't make the administration look bad. But, in any case where the administration isn't happy, it gets to wipe out the shield. Apparently, freedom of the press only applies to situations in which the administration is not embarrassed.

Dan Thomasson at Scripps Howard puts it this way: "Now it seems the president also has decided the people's right to know might not be all that beneficial to him or them."

Last but not least, there's the USA PATRIOT Act (full text here), which in 2001 expanded the government's powers to spy on American citizens in the course of anti-terror and criminal investigations. Three of its key provisions are up for reauthorization this year, and the Senate Judiciary Committee will be considering them today (Thursday U.S. time). The Economist's Democracy in America blog has an excellent summary of the current state of play, which I take the liberty to quote at great length:

While some Democratic senators had initially shown interest in using the occasion to review the broad edifice of post–9/11 surveillance powers granted the executive branch, legislators now seem poised to move ahead with reauthorisation absent even the mildest additional civil-liberties safeguards.

The Obama administration had requested reauthorisationof all three "sunsetting" Patriot-Act powers: roving wiretap authority; license to spy on so-called "lone wolf" terror suspects under the broad aegis of the Foreign Intelligence Surveillance act; and "section 215" orders, which allow investigators to compel the production of business records or any other "tangible thing". Yet the Justice Department had also signaled its openness to "modifications" designed to protect the privacy of Americans and check potential abuses.

Russ Feingold took them up on the offer with an ambitious proposal that would have substantially overhauled the new foreign-intelligence-surveillance architecture. More modest was a proposal by Patrick Leahy, the Judiciary Committee's chairman, that would have somewhat constrained the scope of both 215 orders and the controversial "national security letters", which internal probes found to be subject to endemic misuse.

Yet even the more moderate reforms proved a bridge too far for Dianne Feinstein, who swooped in at the last minute before last week's legislative mark-up session with her own substitute bill, stripping away even the feeble restraints Mr Leahy had supported. The reason was the purported fear of FBI officials that these constraints might interfere with a number of "ongoing investigations", intimated to have sprung from the arrest of suspected bomb plotter Najibullah Zazi. Over Mr Feingold's objections, Ms Feinstein's language was made the template for renewal legislation, and the committee is expected to report a final draft out to the full Senate on Thursday.

For updates on Thursday's developments, a liveblog of the proceedings, and information about how to take action, visit the Patriot Act Action Hub. For very detailed background read the last eight posts or so on Marcy Wheeler's Empty Wheel blog. She will also be live-blogging on Thursday. Also see Glenn Greenwald's The joint Post/Obama defense of the Patriot Act and FISA for a critique of some of the lap-doggish mainstream media coverage on the issue, and a rebuttal of Fox news coverage by Cato's Julian Sanchez. 

I'm worried that most liberals and progressives have stopped paying attention and are just assuming everything will work out ok now that "our guy" is in office. I was tremendously excited about Obama's candidacy. I was jubilant when he got elected. I don't see myself turning Republican any time in this lifetime, but if the Obama Administration doesn't start showing a bit more concern for American civil liberties - putting aside for the moment the question of whether he cares about anybody else's - I'm going to start wishing for a viable third party with a meaningful civil liberties and human rights platform.

China's censorship arms race escalates

Last week the China Digital Times reported that the photo above (click here to view full size original) has been making the rounds in Chinese blogs and chatrooms. It is an image of a "computer science float" for Thursday's National Day parade, onto which somebody has photoshopped a screenshot of the Internet Explorer error message familiar to anybody who has ever tried to access a blocked website in China: "This page cannot be displayed."

As the 60th birthday of the People's Republic of China approaches, Internet users in China are complaining that the Internet has become even more difficult to use than ever before. Not only has the number of blocked websites increased, but the most popular censorship circumvention techniques and technologies have come under attack. A sampling:

VPN's (Virtual Private Networks): The most popular VPN's among people I know in China are Witopia and Hotspot Shield. Witopia users in Beijing report that even with the VPN on, they have to manually set the DNS (via these instructions, see Q6) in order to access certain super-blocked sites like Facebook and Twitter. Others, in Shanghai and elsewhere, report that Witopia isn't even working when they set the DNS, or it works only intermittently for all sites. People all over China are telling me that Hotspot Shield no longer works for them at all.

Tor (onion routing): Since September 25th, according to the Tor development team, 80% of Tor's public relays are "blocked by IP address and TCP port combination." However you can still access Tor via bridges, updated regularly in various places. See some Chinese instructions here.

Freegate: (Note their website is down as of 1am Monday EDT) This tool developed by FLG-followers has reportedly been under attack since around September 1st. They have issued an update but according to various people around China who I've queried, including those using the latest version, it's still intermittent and difficult to use.

SSH tunnel: Dave Lyons, who has set up a tunnel to his own server outside China, reports that he also has to use Foxyproxy. UPDATE: Jon Phillips aka "Rejon" has detailed instructions for SSH tunneling here. 

Proxy servers: Until this summer, probably the most common (if insecure and unreliable) way to access blocked websites was through proxies. It has been the case for years that users of public proxies had to switch frequently as they got blocked. However in the past few months Internet users in China have been reporting that the blocking of public proxies has become much more thorough.

Psiphon: I've sent out queries to see if anybody out there in my Twitter network is using Psiphon and whether it's working. However as of this writing I've gotten no responses. [UPDATE 30 minutes later: one person reports it's working]

If anybody reading this post has anything to add about any of the above, please share it in the comments section of this post.

Meanwhile, Global Voices Advocacy, Reporters Without Borders, The Register, and PCWorld all report that at least some ISP's in some parts of China have been ordered to install new censorship and surveillance software, "Lan Dun," which has variously been translated as "Bluedon," "Blue Shield" or "Blue Dam." According to PCWorld:

At least one Chinese city has adopted a further measure to monitor Internet traffic. The southern city of Guangzhou this month ordered Internet service providers to install "security monitoring" software on all servers and threatened punishment for failure to do so, according to government notices posted on the blog of one data center management company. Two such software programs, called Blue Shield and Huadun, were recommended in one of the government notices. Huadun's Web site says the program helps server owners remove illegal and pornographic content from their systems.

The software is meant to "create a favorable online environment" for China's National Day celebration next week, the government orders said. A representative of the data center company reached by phone said it put the orders on the blog for reference by clients and that the order applied only to Guangzhou.

Both Global Voices and Reporters Without Borders cite this Chinese-language Apple Daily (Taiwan) article which says that all ISP's were required to install the software by September 13th. According to the product description, it not only blocks websites but also logs individual users' web browsing histories and monitors instant messaging conversations.

In other developments, AFP quotes Chinese state media reports of new laws in Northwest China (namely Xinjiang) "making it a criminal offence for people to discuss separatism on the Internet." AFP continues:

The Bill passed by authorities in the Xinjiang region bans locals from using the internet in any way that undermines national unity.

It also bans them from inciting ethnic separatism or harming social stability, the China News Service reported.

The Bill requires internet service providers and network operators to set up monitoring systems – or strengthen existing ones – and report anyone who breaks the law, the report said.

The Bill did not specify what punishment offenders would face, but its apparent aim is to allow authorities to arrest individuals behind emails and web posts within the region that they deem to be a threat.

"The introduction of the 'Information Promotion Bill' is timely and necessary," the report quoted the Bill as saying.

"It ensures internet criminals can be quickly and effectively controlled in the future."

The Internet was shut off in Xinjiang in early July and has not been turned back on. Today blogger-journalist Michael Anti posted a report on Twitter that Internet connectivity will finally be restored in Xinjiang in mid-October.

Global Voices Advocacy also recently reported that Chinese Internet users are also becoming more acutely aware of the reality that domestic companies like Tencent log users' conversations and share them with the police as requested.

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China's new real-name requirement: another global trend

The New York Times' Jonathan Ansfield reported on Sunday that Chinese news websites have quietly implemented "secret government orders" requiring new users to register their true identities before they can post comments. His interviewees explained the reason why the orders were a tightly guarded "secret," implemented without public announcement or discussion: if they announced it beforehand, public outcry and industry pushback might block implementation altogether.

That's exactly what happened with theGreen Dam mandate which was scrapped this summer, and with its failed proposals to implement real-name registration back in 2006. Given that China isn't a democracy, and neither policies nor laws require open debate in the legislature before they're passed, the government seems to have adopted a new tack with measures like the real-name system that are likely to be controversial: don't talk about it, just do it. Then aggressively work to shape public opinion after the fact so that you can claim the measure was in line with what mainstream and reasonable members of the public wanted anyway.

One point already being made is that South Korea's major websites already have a real-name registration system. (Apparently they use national e-commerce verification systems like this one (IE/Safari only) to run identity checks.)  And Korea is a democracy. So, the argument goes, China is only in line with the growing global backlash against all the bad things that can come from anonymous Internet speech. One need look no further than the furore over the anonymous blogger who called aging supermodel Liskula Cohen a "skank" for evidence that many in the U.S., U.K. and Canada wouldn't mind a real-name system either.  The EFF's Danny O'Brien rightly warned in an article last month that Korea is leading the global charge to stamp out anonymity.

A number of people here in China have been testing out the new registration system. The GFW blog has extensive annotated screenshots here. The NYT's Ansfield himself pointed out that he was able to register successfully using fake information. It appears that while many of the systems do check to make sure that the ID number you entered is a valid ID number, it doesn't verify whether the name you entered matched the number, let alone whether the human being entering the information matched any of it. Some people tell me they just search on the Internet for random ID numbers and use those. That said, as this blogger points out, all of these services log IP addresses. Even without real-name registration it's not so hard for the police to track somebody down if they really want to - as long as that person isn't using an anonymity tool like Tor and being extremely careful about their general online security. With growing numbers of Internet users being detained and prosecuted on charges of "spreading rumors" lately, even though the real-name registration system is far from thorough or perfect, it's likely to have a chilling effect.

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Dark days for China's liberals

(Photo by Zola, taken at Gongmeng's offices. Left-to-right: Teng Biao, Lin Zheng, Li Fangping, Xu Zhiyong, Zhang Lijun.)

The people in this picture are not dissidents. They are civil rights lawyers who have been trying to work within the bounds of China's legal system and constitution to help ordinary Chinese people who are neither rich nor powerful nor politically connected. They have not been trying to organize an overthrow of the regime. Yes they're liberals in the Chinese political context - similar to how the ACLU and the EFF are liberal within the American context. Their rough equivalents in American political culture would be NPR-listening liberal democrats who work in public interest law with a lot of pro-bono cases and class-action lawsuits.

More than a week ago, Xu Zhiyong, the second man from the right in the picture above, was taken by police from his home. Police have not formally charged him with any crime, but his family learned from officials at the university where he teaches that he's being held for tax evasion. Xu is an elected member of the Beijing People's Congress and a civil rights lawyer who co-founded the Gongmeng legal aid organization. Xu has given defended and advised petitioners fighting official land-grabs in the provinces; he worked to expose the illegal "black jails" where some petitioners have been held. Gongmeng lawyers defended parents of children sickened by melamine-tainted milk powder last year, and worked on sensitive death penalty cases. Gongmeng was shut down by authorities in mid-July because they said the organization's Open Constitution Initiative had failed to pay taxes. Xu was detained along with another Gongmeng staffer, Zhuang Lu, the day before he was scheduled to attend a hearing on the matter. Nobody believes this matter is really about taxes: while it's possible that Gongmeng's books weren't in perfect order, pure tax infractions are generally not handled this way. It certainly wouldn't be the first time that tax technicalities were used as a cover to nab people for legal activities that powerful people find threatening.

When I saw Xu in Beijing earlier this year, he told me he said that Gongmeng was operating well within the bounds of Chinese law, dedicated to the improvement and hence longevity of the current regime. Nothing they were doing, he insisted, challenged Communist Party rule in any way. He claimed to be confident that Gongmeng would not have serious political trouble for this reason. Enough mainstream establishment people in Beijing seemed to agree with this view that he was even featured on the cover of the Chinese version of Esquire Magazine this month. (See picture on left.) Magazines like that - always concerned about potential trouble with the publishing authorities - generally won't touch people whose reputations their editors believe might endanger their publishing license. Sharon Hom of Human Rights in China warns: “By suppressing Xu Zhiyong, who is a moderate voice for social change and has dedicated his career to helping forge a society with genuine rule of law, the authorities are running the risk of radicalizing the forces for reform and change in China.”

But the crackdown is broad and deep, and shows no sign of ending. In May, 20 civil rights lawyers who had defended Tibetans, Falun Gong members, and other politically sensitive clients were effectively disbarred. In July the licenses of another 53 lawyers were revoked. On the same day as Xu's detention, security officials raided the office of Yi Ren Ping, a non-governmental organization dedicated to fighting discrimination, and confiscated all copies of its latest newsletter on grounds that they don't have a publishing license. A number of people involved with a citizens' effort to collect information about children who died in the Sichuan earthquake and raise questions about shoddy construction of schools have been arrested. Earthquate survivor He Hongchun was convicted for disturbing social order. Huang Qi, who reported online about the plight of children who died in the quate, went on trial this week for disclosing state secrets; the court's ruling has yet to be announced. According to Human Rights in China a key witness was kidnapped and prevented from appearing in court to testify for Huang's defence. Tan Zuoren, an activist who conducted an investigation into the reasons why so many school buildings collapsed in the quake, is scheduled to go on trial for state subversion next week.

While many news reports about all of these developments point to the upcoming 60th anniversary of the founding of the People's Republic as a possible reason for the crackdown, experts in Chinese law are worried that this is not just a temporary phase - and that something much more serious and long-lasting could be happening. Jerome Cohen, one of the preeminent experts on the PRC's legal system, wrote yesterday in an e-mail (which I quote with his permission): "What we are witnessing now is a systematic campaign unparalleled since the beginning of the Open Policy in 1978. It has nothing to do with the 60th celebration. Are there still people who believe that such policies and practices can be explained because of the approach of one or another of China's many anniversaries?"

Rather, Cohen and some other legal experts are concerned that a much more deep-seated reversal is underway: it may be that the Chinese government intends to discourage the use of courts and China's legal system by the nation's many aggrieved citizens - steering them to other avenues for appeal and dispute-resolution. If this is the case, it represents a reversal of the government's repeatedly stated goal of "strengthening rule of law" that has been an emphasis over the past three decades, and on which China's civil rights lawyers and activists have staked their right to exist.

For every detention, arrest, and suspension, dozens of other people are being subject to questioning, their computer hard drives copied for detailed examination, and their personal notebooks and documents scanned for police records. I've heard informally from a few people who were either "invited for tea" by the police or who know people who were. From time to time somebody describes their "tea drinking" experience on their blog or on Twitter. Internet censorship has been getting increasingly worse all year: not just blocking of websites and social networking services hosted overseas, but the shutting down of people's blogs on domestic blogging platforms and the wholesale outages of some Chinese SNS's like Fanfou. Green Dam may have been defeated for now, but universities and other institutions are under growing pressure to install systems with the same kind of censorship and surveillance functionality. A clear message is also being sent that people will face serious consequences for posting sensitive information: the Fujian-based blogger and twitter user Guo Baofeng (aka @amoiist on Twitter) was detained along with several other bloggers for posting information of an alleged gang-rape and murder committed by an allegedly politically well-connected man.

Bloggers from all over China - and the Chinese speaking world - rallied to free Guo with a postcard-writing campaign, and fundraising drive to cover his family's legal expenses. He was recently released. Now the same kind of nation-wide effort is underway to support Xu Zhiyong. Liberal Chinese intellectuals around the country are also rallying to their defense with eloquent essays. But writing in places that the domestic audience has easy access to isn't easy. Gongmeng's blog on QQ was shut down. Guangzhou-based columnist Xiao Shu has seen his posts related to Xu Zhiyong and Gongmeng removed by administrators of his Netease blog. Here is one such post that I saved in my aggregator and posted into Google docs for safekeeping. Meanwhile, though, people keep trying. A petition campaign is underway. With Gongmeng's blog and website shut down, staff continue to post updates about their situation on their Twitter account. They are conducing a fund-raising drive to help with legal fees. They continue to fight for their rights as guaranteed - in theory - by the Chinese constitution and body of laws.

But if rule-of-law for civil rights really is being reversed as Cohen and others fear, that doesn't bode well for liberals with lingering hopes that their fortunes will improve after the October 1st anniversary has passed. We can expect that China's liberal intellectuals and liberal bloggers will keep pushing for their rights to the maximum extent possible. One of many problems however is that the pool of lawyers they can turn to when they get in trouble is getting smaller and smaller. In which case - will that force China's liberals to get increasingly fed up, and become more radical, as Sharon Hom of HRIC suggests? Or will they get worn down, censored and marginalized, successfully discredited by the propaganda machine, their efforts unknown or misunderstood by the vast majority of the Chinese public?