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

On February 15, 2006, Google, Microsoft, Yahoo!, and Cisco were called in a Congressional hearing for aiding and abetting the Chinese government's censorship efforts. (119) House members described these corporations' behavior in China as "abhorrent" (120) and "astonishing." (121) The corporations generally responded to the accusations by stating that they believed the benefits of their actions towards freedom of expression in the long term outweighed the downsides. (122)

Yahoo! and Google each explicitly asked the government for help in fighting Chinese censorship. (123) Google, for instance, "urged the State Department and the U.S. trade representative to press U.S. concerns on censorship during talks with foreign governments." (124) The companies involved in the hearing seemed to welcome U.S. legislation that could provide U.S. companies with an excuse to give the Chinese government for not complying with China's censorship laws. (125) Andrew McLaughlin, Google's senior policy counsel, even suggested that "[c]ensorship should be treated as a trade barrier and be written into free-trade agreements." (126)

F. The Global Online Freedom Act of 2007 (GOFA)

The Global Online Freedom Act (GOFA), after failing to become law in 2006, was re-introduced on January 5, 2007. (127) The bill aims to "promote freedom of expression on the Internet" and "to protect United States businesses from coercion to participate in repression by authoritarian foreign governments." (128) In addition to findings similar to those previously listed in GIFA and the associated policy statement, the bill includes the finding that China's censorship "promotes, perpetuates, and exacerbates a xenophobic--and at times particularly anti-American--Chinese nationalism, the long-term effect of which will be deleterious to United States efforts to prevent the relationship between the United States and China from becoming hostile." (129) The bill calls for a U.S. policy of using "diplomacy, trade policy, and export controls" to promote the free flow of information on the Internet, and deterring U.S. businesses from "cooperating with officials of Internet-restricting countries in effecting the political censorship of online content." (130)

GOFA would establish the Office of Global Internet Freedom in the Department of State. (131) The Office would be appropriated fifty million dollars for each of the fiscal years 2008 and 2009. (132) The duties funded would include the duty to "develop and ensure the implementation of a global strategy and programs to combat state-sponsored and state-directed Internet jamming by authoritarian foreign governments." (133) The Office would consult with technology companies, human rights organizations, and academic experts in order to establish "a voluntary code of minimum corporate standards related to Internet freedom." (134)

GOFA would not allow any U.S. business to locate "any electronic communication that contains any personally identifiable information" within an Internet-restricting country, as designated by the President. (135) A private right of action would be created against any U.S. business that provides personally identifiable information to an official of an Internet-restricting country, unless the information was provided for legitimate foreign law-enforcement purposes as determined by the Department of Justice. (136) GOFA would call for increased transparency regarding search engine filtering, requiring search engine companies to provide the Office with a list of filter terms used to comply with foreign censorship practices. (137) Internet content hosting services would be required to provide similar lists of URLs that they have removed or blocked due to foreign censorship practices. (138) GOFA also calls for a feasibility study on the establishment of export license requirements for technology that facilitates restrictions on Internet freedom. (139)