Increasing global demand for an uncensored Internet - how the U.S. can help defeat online censorship by facilitating private action

Vanderbilt Journal of Transnational Law, Jan, 2008 by Andrew W. Lloyd

ABSTRACT

This Note discusses efforts to defeat government censorship of the Internet. In the narrow meaning of that idea, this Note initially discusses technological efforts to circumvent government-imposed Internet firewalls; in the broader sense, it addresses the larger goal of inducing censoring governments to bring their firewalls down. Proposed U.S. legislation would provide U.S. government funding of censorship circumvention technology. This Note discusses why such funding is not a good approach. Absent larger international efforts, private action--within both the U.S. and censoring countries--has the best chance of bringing down government-run firewalls. This Note discusses how the U.S. government can best facilitate such private action through a two-pronged approach. The approach attempts to increase private circumvention efforts while decreasing U.S. corporate assistance in foreign governments' censoring. This Note argues that such an approach would result in the possibility of censoring governments bringing down their firewalls because of an increased demand for an uncensored Internet and sufficient government frustration in maintaining such censorship.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. BACKGROUND INFORMATION
     A. An Overview of Censorship Methods
     B. Technologies Used to Circumvent
        Censorship
        1. Examples of Anti-Jamming Software
        2. Recent Private Collaborative Efforts
     C. The Global Internet Freedom Act of
        2006 (GIFA)
     D. The Global Internet Freedom Task Force
        (GIFT)
     E. The Role of U.S. Corporations in China's
        Internet Censorship
     F. The Global Online Freedom Act of 2007
        (GOFA)
III. ANALYSIS
     A. Is Anti-Jamming Software a Good Approach
        to Defeat Censorship?
     B. Government Funding of Anti-Jamming
        Technology under GIFA and GOFA
     C. GIFA's Likelihood of "Promoting Democracy
        and Freedom".
     D. The U.S. Government's Domestic
        Curtailments of Internet Freedom
     E. U.S. Obscenity Law and the Community
        Standards Test
 IV. THE SOLUTION: FACILITATING PRIVATE ACTION
     A. Minimizing Government Involvement in
        Anti-Jamming Efforts
     B. Minimizing U.S. Corporate Assistance
        in Foreign Governments' Censorship Efforts
  V. CONCLUSION

I. INTRODUCTION

The Global Internet Freedom Act of 2006 (1) and the Global Online Freedom Act of 20072 propose government funding of "anti-jamming" technology that allows users in Internet-censoring countries to view websites that are blocked by their government. (3) U.S. government funding of such technology is not a good long-term approach to defeating government Internet censorship. The U.S. government would be perceived internationally as imposing its own standards of decency and morals onto China and other countries with similar Internet censorship. Such criticism gains legitimacy when it is viewed in light of the U.S. government's own restrictions on Internet freedom regarding suspected terrorism, pornography, and content deemed obscene. (4)

The U.S. government does not permit a completely free Internet within its own borders, yet would be actively supplanting other countries' content restrictions under the proposed legislation. (5) Government funding of such technology contradicts the spirit of U.S. courts' own community standards test, which allows the most restrictive standard within the U.S. to govern what is decent online. (6) Funding of technology that circumvents foreign censorship amounts to a statement that while the most restrictive standard in the U.S. is an important consideration, the most restrictive standards abroad must be torn down. Given that the U.S. has included its own content filters in such software offerings in the past, (7) the U.S. would essentially be replacing another government's firewall with its own.

This Note proposes that the U.S. government should not fund anti-jamming software, but should rather take an approach that would better facilitate private action to defeat Internet censorship. This suggested approach includes (i) allowing anonymization websites that are aimed at circumventing government censorship to operate with minimal U.S government involvement, and (2) attempting to minimize U.S. corporate assistance in foreign governments' censorship efforts. This Note will discuss the history of Internet censorship in China and other censoring countries, critically analyze the Global Internet Freedom Act and Global Online Freedom Act, outline a better approach, and discuss how the advocated approach would promote breaking government-imposed firewalls from within Internet-censoring countries.

II. BACKGROUND INFORMATION

A. An Overview of Censorship Methods

The 2002 House policy statement supporting the original Global Internet Freedom Act, entitled "Tear Down This Firewall," states that the "most notorious violators of Internet freedom" are Cuba, Laos, North Korea, China, Saudi Arabia, Syria, Tunisia, and Vietnam. (8) According to the report, which cites the Human Rights Watch and Reporters Without Borders, the control methods used by these governments include "denying their citizens access to the Internet, censoring content, banning private ownership of computers, and even making e-mail accounts so expensive that ordinary people cannot use them." (9) The blocking and censoring methods are most often in the form of government-run firewalls and filters. (10) Some governments also monitor individual activity, for example, screening for certain words in emails or message boards, and may "black list" individual users or even prosecute them. (11)