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V. Company, Government, Investor and Other Responses

1. Efforts toward a voluntary Industry Code of Conduct

Since the February 2006 congressional hearing, an academic working group from the Berkeley China Internet Project of the Graduate School of Journalism of the University of California at Berkeley (BCIP); the Berkman Center for Internet & Society at Harvard Law School; and the Oxford Internet Institute at Oxford University have been working to draft a globally applicable corporate code of conduct, plus policy recommendations to facilitate the fullest possible support for such standards by governments, international organizations, and trade bodies. The Center for Democracy and Technology is also facilitating discussions about a code of conduct between academics, activists, think-tanks, and representatives of some of the companies named in this report. Details of these codes are still under development and have yet to be announced publicly.¹⁵³

The reason to establish such a code, or standards and practices, is to seek collective ways to find the ability to resist demands for information or technology that violate fundamental human rights. These standards and practices should transcend the relationship of individual companies to any given market, therefore giving the entire industry collective strength––and preventing the kind of “race to the bottom” recently witnessed in China.

These standards and practices should serve not only as a catalyst and compass for corporate responsibility, but also as a buffer for companies operating in a political environment where freedom of expression is restricted. Such defense mechanisms should include all possible means, from transparency to non-collaboration and even resistance, to help these companies avoid aiding or colluding with human rights abusers.

While many of the principles in a meaningful code of conduct are the same as those raised in currently proposed legislation (discussed below), it is important to have these same principles in each, since each reinforces the other, one may be established or signed into law before the other, and it also remains to be seen whether the final version of legislation will fully include the following points, all of which we believe to be an essential minimum:

a. Maximize user data protection:

• Do not initiate censorship that has not been specifically ordered in writing by the Chinese government via a legally binding process. Businesses should not be forced to shoulder the moral burden and financial cost of political censorship. That burden, and the moral responsibility that goes along with it, should be shifted back to the Chinese government, where it belongs.

• Do not comply with oral, undocumented requests for censorship. This includes manual deletion of content in addition to the filtering of it. Challenge in court every order to censor political speech. Do not comply without a court order.

• The Chinese Foreign Ministry spokesman has declared that foreign Internet companies must follow Chinese law.¹⁵⁴ It follows that Internet companies have the right to request clear and transparent legal procedures before agreeing to removal or censoring of any content so that they can be clear about what laws they are being asked to follow. Such a formal legal process would include: 1) Asking each Chinese government agency with jurisdiction over content to designate a formal point of contact on content censorship issues; and 2) Insisting on a piece of paper to document content-related requests before a company is obligated to take down or filter any content.

• Work with the U.S. Trade Representative, the European Union trade office, the World Trade Organization, the Organisation for Economic Co-operation and Development (OECD), and other national and international trade bodies to push for regulatory change in China, the goal being a fair business playing field that promotes honesty to the user and respect for the user’s rights.

  None of these goals are inconsistent with goals and aspirations recently expressed by Chinese government officials.

c. Maximize service integrity and Chinese user trust:

• Clearly and visibly inform users that they have complied with legally binding government requests to filter or otherwise censor content that the user is trying to access. Thus, if a user cannot view a webpage due to the company’s compliance with a government request, the user must be informed that this is the case. In other words, companies must pledge honesty to the user, and not engage in such dishonest practices as triggering a browser error page that implies technical problems or user error, when in fact the real reason is censorship.

• To the maximum extent legally possible, inform the user about who is responsible (which corporate entity and department, which government ministry and department) for the filtering or censorship of each piece of content the user is attempting to access or post to the web.

• Provide an “appeals process” by which a user can report the filtering or censorship of what she believes to be lawful speech. This process should provide the user with the ability to appeal anonymously and securely if she so wishes.

d. Record-keeping for greater accountability and user trust:

• Keep written documentation of exactly what terms and web addresses they are asked to censor by the Chinese government. This documentation should include a precise explanation of exactly what local law is being violated by the use of each word or phrase or URL, as well as precise information about which government office or authority ordered the filtering of each word, phrase, or URL. This documentation should be made publicly available. If such detailed documentation is truly impossible due to lack of government cooperation, companies should agree that they will strive to provide the maximum amount of information possible about why each search result is filtered, why each specific phrase is blocked from posting online, etc.

e. Annual reporting:

• All signatories should commit to produce an annual report detailing exactly what they have done to live up to the above pledge. These reports would be submitted to a nongovernmental organization that would compile and publish each signatory’s report on one website and in one printed volume for public consumption.

2. Legislation

Even if a code of conduct is adopted by key companies, Human Rights Watch believes that it is unlikely to be effective without accompanying legislation. First, some companies may sign up to a code and then ignore it. The key “sanction” of a voluntary code is disclosure of non-compliance and public opprobrium. Yet despite public criticism, being hauled before the U.S. Congress, and the threat of legislation, thus far companies have failed to change their practices. It is, therefore, not clear how a voluntary code would have the teeth to actually change behavior without accompanying legislation to impose real consequences for non-compliance.

The Global Online Freedom Act of 2006 was introduced in the U.S. House of Representatives on February 16, 2006, by New Jersey Republican Christopher Smith, co-sponsored by California Democrat Tom Lantos. It was amended and sent to the full International Relations Committee on June 22, 2006.¹⁵⁵ The proposed legislation includes the following measures:

• A U.S. Office of Global Internet Freedom would be established under the State Department.

• U.S. companies (defined as any company listed on a U.S. stock exchange) would be required by law to document and report all political and religious censorship conducted in designated “Internet-restricting countries” (as designated by the President).

• U.S. companies would be prohibited from storing personally-identifiable user information on servers inside China and other “Internet-restricting countries.”

• U.S. companies would only be able to hand over such user data to “Internet-restricting” governments in cases determined to be acceptable by the U.S. Department of Justice.

• Transparency of Internet censorship would be achieved by requiring companies to report to the U.S. Office of Global Internet Freedom with a list of all data and content blocked or removed from their service at the host government’s request.

• Victims and family members of people who are jailed or otherwise harmed due to U.S. company violation of the Act would have the right to sue the transgressing company in a U.S. court of law.

• A feasibility study would examine the tightening of export controls to “Internet restricting countries.”

Human Rights Watch believes that barring a dramatic change of behavior by Internet companies doing business in China, legislation will be necessary. In urging the adoption of legislation, we are mindful that companies doing business in China did not set out to become censors or facilitate the arrest and imprisonment of Internet users. We understand that companies feel caught in a conflict between the demands of a repressive government in China and the rights of Internet users. Yet the principled path is clear, and it lies in taking all steps possible to protect basic rights to freedom of expression, information, and liberty. Thus far, companies have signally failed to do so. Yet at the same time some, such as Microsoft’s Bill Gates––who is famously opposed to regulation––have even urged Congress to regulate to create a level playing field among companies so they can resist caving in individually to whatever demands the Chinese authorities make¹⁵⁶

The goal of legislation should not be to prevent U.S. or other international companies from operating in China. Rather, the goal should be for companies in the business of the dissemination of information and ideas to adhere to these goals in China, not to participate or facilitate censorship or the arrest of individuals involved in peaceful expression, and to set a strong example of ethical corporate behavior. Human Rights Watch has worked with and consulted a variety of experts about what provisions should be in legislation of this kind. Many of these are in the Global Online Freedom Act, but others are not, and some provisions of the bill would be stronger with some changes.

Human Rights Watch urges the following principles as relevant to legislating on corporate responsibility to uphold human rights:

1. UNIVERSALITY: Legislation should be universal in nature, limited not specifically to the Chinese government or listed governments with exceptionally poor records, but rather targeted at all acts of political censorship.

2. NO USER DATA IN REPRESSIVE JURISDICTIONS:Companies should not be allowed to host personally-identifying user data in jurisdictions of the People’s Republic of China, so that they avoid having to comply with legally binding orders to turn over such information in order to prosecute, threaten, or harass individuals engaged in internationally protected speech. More universally, companies should be forbidden by law from hosting personally-identifying user data in jurisdictions where the courts have a well-documented track record of convicting people for peaceful expression of political or religious views.

3. CLEAR WARNINGS TO USERS OF RISKS: Companies must include text on all user log-in pages, written in clear language and displayed in a prominent place on the page, informing the user of how and where their data is retained and under what conditions it may be shared with governments (making clear which ones if the company is bound to share the data with more than one government in order to be legally compliant) as well as other third parties.

4. COMPANIES NOT TO ACT AS VOLUNTARY CENSORS OF PROTECTED SPEECH: Companies have no business making decisions about what political or religious content should or should not be censored. Companies should be prohibited from taking actions on their own to censor political or religious speech. Such proactive censorship is usually done in anticipation of government demands or preferences, without a legally binding order to remove specific material having been received. Censorship carried out proactively as the result of testing to identify what material the government is censoring and then taking action on this information in absence of any specific, legally binding court order, should be prohibited. Companies should also be prohibited from complying with oral, undocumented requests from the Chinese authorities for censorship of political and religious speech. This includes manual deletion of content in addition to the filtering of it. Companies should be required to challenge every order to censor non-violent political and religious speech in the Chinese courts. Companies should be prohibited from complying with an order unless the order is made by a court. Acting in this way will help with China’s often stated goal of building the rule of law.

5. USER NOTIFICATION WHEN GOVERNMENT HAS FORCED A COMPANY TO CENSOR PEACEFUL POLITICAL AND RELIGIOUS SPEECH: Companies should be required to clearly and visibly inform users that they have complied with legally binding government orders to censor content that the user is trying to access. Thus, if a user cannot view a webpage due to the company’s compliance with a government request, the user must be informed that this is the case. To the maximum extent legally possible, companies must inform the user about who is responsible (which corporate entity and department, which government ministry and department) for the censorship of each piece of content he or she is attempting to access or post to the web. Companies must also provide an “appeals process” by which a user can report the filtering or censorship of what the user believes to be lawful speech. This process must provide the user with the ability to appeal anonymously and securely if she so wishes.

6. FULL DOCUMENTATION: Companies must be required to keep written documentation of which terms and web addresses they are asked to censor by the Chinese government. This documentation should include which requests were complied with and rejected, and in accordance with what laws or regulations. It should contain explanation of exactly what local law is being violated by the use of each word or phrase or URL, as well as precise information about which government office or authority made the legally binding order to block or remove each word, phrase, or URL. This documentation should be made publicly available. If such detailed documentation is truly impossible due to lack of government cooperation, companies must provide the maximum amount of information possible about why each search result is filtered, why each specific phrase is blocked from posting online, etc.

7. ANNUAL REPORTING: Companies should be required to produce an annual report detailing exactly what they have done to comply with the legislation. These reports would be submitted to the governing jurisdiction of the legislation and posted on government and company websites.

8. FINES AND VICTIMS’ RIGHT TO COMPENSATION: Where companies violate laws regulating how Internet companies do business with governments that abuse human rights, Companies should also be subject to significant fines by the relevant jurisdiction. Victims and family members of people who are jailed or otherwise harmed due to company violation of the law should also have the right to sue the company in a country to which jurisdiction it is subject.

9. GLOBAL: Legislation should not just be adopted by the United States. The European Union and its members, Japan, and other democracies with companies doing business in this field in China (and in other countries with a poor record on human rights) should also adopt legislation. Political censorship of the Internet is a global problem and should be treated as such.

3. U.S. Executive Branch actions

On February 14, 2006, the U.S. State Department established a Global Internet Freedom Task Force. In his congressional testimony the following day, Ambassador David Gross pointed out that the Chinese government’s suppression of political and religious speech on the Internet runs contrary to its own international commitments. The task force has since had two meetings, with no discernible results or plans.

At the United Nations World Summit on the Information Society in Tunis in November 2005, China was a signatory to the Tunis Commitment, which reaffirmed the 2003 Geneva Declaration “that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The Tunis Commitment further stated that “freedom of expression and the free flow of information, ideas and knowledge are essential for the Information Society and beneficial to development.”¹⁵⁷ Regarding U.S. companies, Ambassador Gross observed:

We applaud recent statements that they recognize the importance of acting responsibly in this very difficult environment and see the value of cooperating with each other to improve the situation of the Chinese people. We have encouraged such cooperation, and we challenge our companies to leverage their global leadership by developing and implementing a set of meaningful best practices. We want to work with our companies, but the State Department can advocate more effectively for Internet freedoms when U.S. companies conduct themselves in a clear and consistent manner.¹⁵⁸  

In an effort to determine and facilitate next steps, the Global Internet Freedom Task Force has convened separate meetings with representatives from business, human rights organizations, and academia. No further actions have yet been made public.

4. European Union actions

On July 7, 2006, the European Parliament adopted a resolution condemning government-imposed restrictions on Internet content “which conflict with freedom of expression,” stressing “that freedom of expression is a key value shared by all EU countries and that concrete steps must be taken to defend it.”¹⁵⁹ According to a press release issued by the European Parliament:

MEPs [Members of the European Parliament] welcome the introduction by US legislators in February 2006 of a draft law, the Global On-line Freedom Act, aimed at regulating the activities of internet businesses when they operate in repressive countries.

They believe the EU too should stand up for the rights of internet users. They therefore call on the Council and Member States to agree a joint statement confirming their commitment to the protection of internet users’ rights and the promotion of free expression on the internet world-wide.

The Commission and Council are also asked to take the following steps:

• to press the authorities of countries that have imprisoned journalists and others for expressing views on the internet to release them immediately;

• to draft a voluntary code of conduct limiting the activities of companies in repressive countries;

• to take into account, when considering EU assistance programs with third countries, the need for unhindered internet access by the citizens of those countries.¹⁶⁰

Human Rights Watch applauds this step toward creating and enforcing truly global corporate standards of behavior. We call on the European Commission and Council to implement the Parliament’s recommendations—whose goal is to protect the universally recognized right to freedom of speech for all the world’s people.

5. Investor pledge

In November 2005 twenty-five U.S., Canadian, Australian, and European investment funds managing around U.S.$21 billion in assets signed a pledge stating that “respect for freedom of expression is a factor we consider in assessing a company’s social performance,” and committing to “monitor the activities of Internet sector companies in repressive countries to evaluate their impact on access to news and information.” The companies also pledged to support shareholder resolutions at company annual meetings “favorable to freedom of expression,” to call on Internet businesses to make public ethical codes aimed at upholding freedom of speech worldwide, and to “[c]all on Internet businesses to make information public that will allow investors to assess how each firm is acting to ensure that its products and services are not being used to commit

human rights violations.”¹⁶¹ (See page 79 for full statement.) According to Reporters Sans Frontières, “the statement is above all targeted at companies such as Yahoo!, Cisco Systems and Microsoft that help the Chinese authorities censor the Internet or operate online surveillance systems.”¹⁶² This was a powerful message to companies that socially-responsible investors were very concerned about the issue and expected companies to change their practices. It showed that scrutiny and criticism of the companies was growing since socially-responsible investors had added their voice to criticisms of NGOs, the press, the public, and the U.S. Congress.