Collusion and Collision

i
Overview: Searching for guidance in Chinese cyberspace

Searching online should be easy. Type a request
into a search engine and the screen lights up with
a neat list of what is available on the World Wide
Web.
That is not the case in China.
Chinas search engines implement and enforce
state policy. They allow the past to be rewritten
and make inconvenient truths disappear. Social
discontent mobilized by local corruption or
bureaucratic intransigence is redacted. Tibetans,
Uighurs and other minorities show up as
historically happy subjects of the Chinese state.
Little is said about the presence of heavy policing
in these regions that has followed recent mass
uprisings. Enter Tiananmen Square into Baidu,
Chinas leading search engine, and it becomes
just a plaza in Beijing. Much like the memory
hole described in George Orwells 1984, Chinas
search engines allow the past to become just as
the present requires it to be.
While its constitution upholds the right to free
expression and privacy, China maintains strict
control over domestic cyberspace. Censorship
and surveillance are justifed as necessary to
maintain the social stability and cohesion of its
1.3 billion subjects. The Golden Shield project
- an ambitious state cyber security strategy -
has spawned an elaborate system that enables
pervasive censorship of internet content, requires
mandatory registration of new sites, and enforces
strict self-policing by Chinas online population.
Good behavior is expected and bad behavior
is punished. Everyone lives behind the Great
Firewall.
Western corporations cashing in on the Chinese
Information and Communications Technology
(ICT) market face diffcult ethical dilemmas. This
report focuses mainly on the operations of the
major Western search engines active in China, all
of which are U.S.-based. This is because search
engines such as those run by Google, Microsoft
and Yahoo! face the toughest challenges. They
are gatekeepers to the vast repository of human
knowledge in the information age. They also
know a lot about us: our browsing habits, our
interests, and increasingly, our social networks
and contacts. Entering into the Chinese market
as a search engine or social media provider is
an ethical minefeld. In the hands of authorities
determined to police their subjects, search engines
and social media platforms such as Facebook can
become a potent tool of online repression.
Western corporations can act deferentially in
concert with Chinese law which in many
cases means effectively helping the government
to perpetuate censorship, surveillance and
restrictions or they can ensure that their actions
are consistent with their own national laws and
international instruments such as the Universal
Declaration of Human Rights. If the latter is
not possible, they can choose to withdraw from
China, as Google did.
The dilemmas faced by Western ICT corporations
are not restricted to Chinese cyberspace alone.
While China is certainly the most important
case fnancially and politically, the complicity
of Western companies with internet-related
violations of human rights has been occurring in
other countries and the caseload is growing fast.
So what is to be done?
Industry plays a uniquely powerful role when
it comes to the internet. Companies not
(necessarily) governments -- own cyberspace.
They are well-positioned to undertake voluntary
commitments that encourage better behavior.
But when this doesnt work, governments have a
Who controls the past, controls the future:
who controls the present, controls the past
George Orwell, 1984
SecDev Analytics ii
responsibility to provide guidance, which may
also require legislation.
To do nothing is bad for business and bad for
democracy. Inaction undermines the values
of openness, access to knowledge, individual
privacy and informed choice. It threatens the
future of the internet and diminishes its value as
a driver of global development and prosperity.
Government, industry and key stakeholders
should work together to fnd feasible solutions
to the challenges of balancing ethics and
economics in the internet world. Solutions
will come from reining in opportunism and
encouraging responsibility, transparency, and
accountability.

Collusion and Collision:
Searching for guidance in Chinese cyberspace
iii
Key takeaways: At a Glance
The Chinese government has enacted a pervasive regime of laws, rules, and
regulations that empower it with control over access to the internet, content, and user
information. The regime applies these controls to online communications within China as
well as data entering or leaving the country. Foreign companies are required to comply as a
condition of doing business.
Chinas censorship and surveillance policies are of particular concern to Western
companies that provide internet search engine services. Search engines can be
gateways to content control. They also collect user specifc information. As such, search
engines can be powerful tools for online policing and controlling the fow of information
available to users.
Most of the major Western internet companies active in China for example, Google,
Yahoo! Microsoft and Cisco are based in the United States. All have faced the ethical
dilemmas of conforming to Chinas censorship and surveillance policies.
Most companies have acceded to Chinas demands for information control, seeing this
as the price of doing business. This choice has often led to concrete instances where the
companies have aided and abetted human rights abuses, as the case-studies in this report
illuminate.
By contrast, Google opted to withdraw its services from mainland China.
Chinas policies contravene U.S. positions on cyberspace openness, access to
information, freedom of speech and the individuals right to privacy. They also violate
accepted international norms on these issues, norms that are increasingly being extended to
include cyberspace.
So what should be done about Western ICT corporations active in China whose
compliance with Chinese law requires them to collude in the violation of established
human rights?
Voluntary codes to enforce ethical behavior on the part of corporations have thus far
been ineffective, and existing legal remedies are inadequate. No real legal remedies
exist to deter and correct corporate complicity in aiding and abetting Chinese human rights
abuses.
This report calls for new approaches that are practical, realistic, and actionable, and
that wisely balance the competing public and private interests at stake.
Box 1.
iv
Acknowledgements
The SecDev Group drafting team was comprised of Elinor Buxton, James Farwell, and Natalie Ratcliffe, who
worked under the guidance of Rafal Rohozinski. Deirdre Collings and Arnav Manchanda provided editorial
support. The authors are grateful to a number of anonymous reviewers who provided constructive input at
short notice. Thanks also to the Citizen Lab, Psiphon Inc, OpenNet Initiative and Information Warfare Monitor
for sharing their invaluable research. Publication layout and design was led by Madeline Charlton.
v
Table of contents
Overview: Searching for guidance in Chinese cyberspace i
Acknowledgements iv
Introduction: Mind the gap 1
Part 1. The Golden Shield: Chinas strategy for controlling domestic cyberspace 3
1.1 A pyramid of control: Chinas internet censorship and surveillance mechanisms 4
1.2 Seek and ye shall not fnd: The complicity of search engines 5
1.3 Publicity and public order: Additional considerations 7
Part 2. Complicity: U.S. corporations in the Chinese internet market 8
2.1 Google: Dont be evil; do make money 9
2.2 Yahoo!: Going native 10
2.3 Microsoft: MSN Spaces and the Bing-Baidu partnership 10
2.4 Skype: Breaching trust 14
2.5 Cisco: Selling surveillance 15
2.6 Having their cake and eating it too 16
Part 3. Current policy and legal measures 17
3.1 Locutions of liberty: U.S. policy 18
3.2 Tools to implement U.S. policy: Voluntary codes 19
3.3 The American way: Statutory remedies 19
Alien Tort Statute 19
The Torture Victim Protection Act 20
3.4 We are the world: International principles and initiatives 20
United Nations statements 21
UN Global Compact 21
e-G8 21
3.5 Transmission delay: The proposed Global Online Freedom Act 22
Part 4. What is to be done: To new beginnings and new behavior 24
Endnotes 25
SecDev Analytics vi
List of boxes
Box 1. Key takeaways: At a glance iii
Box 2. Chinas system of control: How it works 3
Box 3. How do search engine companies shape Chinese cyberspace? 6
List of fgures
Map of connectivity 4
Collusion and Collision: At a glance 12
vii
1
Introduction: Mind the gap
Balancing profts with principles is a challenge
for all businesses. It is especially challenging for
foreign businesses operating in China. Chinese
authorities rightly require that all businesses
conform to Chinese law. But when these require-
ments run contrary to the norms and values of
foreign companies and the commitments that
they uphold to their governments not to
mention international conventions it is a
legitimate question as to whether these
practices are ethical or defensible.
This paper examines the ethics, dilemmas, and
legal issues that affect U.S. search engine
companies operating in China. The focus on
China is deliberate. With over 450 million
internet users, China is an alluring market for
ICT companies. Its place in the pantheon of ICT
giants is also growing. It is the manufacturing
hub of the worlds technology marketplace. It is
increasingly a standard-setter in telecommuni-
cations. However, it is also a leader in internet
censorship and surveillance.
The focus on search engines is deliberate. They
are gatekeepers to a vast repository of informa-
tion and knowledge. They control access by
making information easy to fnd. As a result, they
yield tremendous power in shaping perceptions
and controlling access. They also know a lot
about us. Search engine and social media busi-
nesses are built around knowing their clients.
What we browse, our interests, and who we have
talked to are all part of an algorithm designed to
tailor search results and generate targeted adver-
tising -- a business that generates immense profts
for these corporations. Consequently, search
engines and social media can be a potent tool
for online policing and controlling the fow and
favor of information available to users.
This report focuses on U.S. companies and U.S.
policies. This too is deliberate. U.S. companies
are global leaders in the search engine market.
Google, Yahoo!, and Microsofts Bing account for
approximately 94% of the global market share.
1

Their operations are global, and the impact they
have when balancing ethics and profts is impor-
tant. The United States is also currently the only
Western country with a clearly defned foreign
policy on cyberspace freedom.
The State Department supports freedom of
expression online, and freedom of access is one
of the core pillars of U.S. foreign policy. Other
Western countries continue to grapple with
defning their positions on cyberspace. Interna-
tional organizations such as the Organization for
Security Co-operation in Europe (OSCE),
Organization for Economic Co-operation and-
SecDev Analytics 2
Development (OECD), and the G8 are beginning
to develop a common set of norms. But they are
neither as advanced nor as clearly and
unambiguously stated as U.S. foreign policy.
Principles and profts
Search engine and other ICT companies have
been complicit in violations of privacy, enforc-
ing online censorship, the interception of private
communications, and the sale of equipment that
has ultimately aided repression. Attempted self-
regulation by industry is limited, and guidance
under national legislation and existing laws is
limited at best. International norms are emerging,
but their ultimate success will be dependent upon
national uptake and the willingness of corpora-
tions to balance principles with profts.
This will be tough. Chinas growing importance
as an ICT superpower means that corporations
and governments are faced with the potential of
writing laws that lessen their competitiveness in
the global marketplace. This challenge is broader
than just China. States including Iran and
members of the Shanghai Cooperation Organiza-
tion have recognized search engines as strategic
properties. Iran plans to develop its own national
search engine and email system. Countries includ-
ing the Russian Federation and Kazakhstan have
declared their intention to police and regulate
social media.
The global marketplace itself is at risk if the glob-
al commons of cyberspace is transformed into a
set of national gated communities. Cyberspace is
changing. The digital natives those who grew
up knowing nothing but online connectivity are
entering their productive years. The Arab Spring,
London riots, Wikileaks, and massive privacy
breaches caused by hacker groups like Lulzsec
and Anonymous are emblematic of the new
politics and power of cyberspace. The internet
that was built in the 1990s was all about making
things work. Security was secondary. That is no
longer the case. Pressures to control and police
cyberspace are rising. At present, according to
the OpenNet Initiative, more than 45 countries
constituting approximately half of the worlds
internet population practice some form of online
control. This number is rising.
The creative heartland of the internet is still Sili-
con Valley, whose engineers have always favored
a policy of internet openness and access for all.
But that is also changing. The U.S. now forms
only 13% of the global internet population.
Together, the U.S. and Europe make up 40%,
and that share is declining. New internet giants
are rising and with them the centre of gravity is
slowly shifting. If the present day internet is an
embodiment of the values and norms of Silicon
Valley, what will the future internet look like,
when the creative centre of gravity is elsewhere -
in Zhongguancu, Bangalore, or any of the rising
cyber powers of the East?

There is a need for bold thinking. Existing solu-
tions need to be re-examined. Competitiveness
needs to be balanced with responsibilities under
domestic and international law. The need for ac-
tion is urgent: the involvement of U.S. companies
in China is growing, with new powerful players
such as Facebook seeking to enter the market.
At risk is more than just the profts forfeited
by exiting the Chinese market. Rather, it is the
future of the internet itself.
The internet became a motor for global
economic growth and development largely
through its capacity to provide open access to
knowledge and communication. Commitment to
those core values remains crucial to its future.
Objectives and format
This report aims to inform government and
business leaders of certain challenges faced by
Western search engine companies who operate
in China and the need for action. It is written in
three parts:
Part 1 discusses the Great Firewall of China and
how censorship is deeply embedded in every aspect
of the Chinese internet ecosystem;
Part 2 examines fve case studies where high-profle
companies have made controversial decisions in the
course of their Chinese operations, and the resulting
impacts;
Part 3 deals with sources of policy and law that
may act as guidance or restrictions on the behavior
of companies when operating abroad.

Box 2.
Chinas system of control: How it works
Filtering and blocking content: All international gateways are ultimately state-controlled, leading to
a single point for fltering. DNS tampering, IP blocking, and IP address misdirection are all employed
in order to redirect users.
Internal controls: ISPs and ICPs are subject to several regulations. ISPs must store user data and
are liable if they host objectionable content. And search engines particularly relevant given the
strengths of U.S. companies such as Microsoft in the feld omit certain results in order to pacify
authorities.
Managing the news: News services are subject to state provisions. The government has supervisory
powers, and provisions regarding content can be broadly interpreted in order to incorporate just about
any offence. Infringing organizations can be shut down.
Monitoring and surveillance: Blog providers must effectively encourage their users to self-censor
through end-user agreements. Email and chat services provide information on request, an effective
requirement that led to a public fasco for Yahoo!, when it came to light that its Beijing based
employees handed over personal user details to the Chinese authorities without following (or
adhering to) any legal process.
3
Part 1. The Golden Shield:
Chinas strategy for controlling domestic cyberspace.
China is a censorship superpower. As the number
of Chinese internet users has exploded from 33
million in 2001 to over 450 million in 2011,
2
the
government has enacted measures that ensure
tight control online.
China operates one of the most extensive,
sophisticated, and far-reaching systems of
internet fltering in the world. Its scale, depth,
and penetration are extraordinary.
The Ministry of Industry and Information
Technology (MIIT) regulates internet use and
thus oversees censorship, alongside the State
Council Information Offce and the Chinese
Communist Partys Propaganda Department.
3

Several approaches are used to control content.
Domestically, China employs: legal threats and
voracious penalties; state-mandated surveillance
and fltration; and, state-induced self-censorship.
4
Websites that originate outside of China are
subject to the Great Firewall, a national online
censorship system offcially known as the Golden
Shield.
5

The OpenNet Initiative reports that the Chinese
government has undertaken to limit access to
any content that might potentially undermine the
states control or social stability by pursuing strict
supervision of domestic media, delegated liability
for online content provision, and, increasingly,
a propaganda approach to online debate and
discussion.
6

In order to understand this broad system of con-
trol, one must look at the internet from its macro
aspects infrastructure and connectivity to the
nitty-gritty of how content providers must deal
with their millions of users.
The following discusses:
1. Chinas censorship and surveillance
system, including technical details of
fltering, as well as the role of internet
service and content providers;
2. The complicity of search engines. Search
engines are one of the most powerful tools
that control access to information; and
3. Additional considerations, including
Chinas concerns for controlling the media
and safeguarding national security.
SecDev Analytics 4
1.1 A pyramid of control: Chinas internet
censorship and surveillance mechanisms
Infrastructure
At the level of infrastructure, all international
gateways are state-controlled, leading to a single
point for fltering. In addition, IP blocking, IP
address misdirection and DNS tampering are all
employed in order to redirect users.
Nine state-licensed internet access providers
(IAPs) operate in China.
7
As of 2008, each had at
least one connection to a foreign internet back-
bone through three main fber-optic pipelines that
consist of giant cables running to Shanghai (from
Japan), the Beijing-Qingdao-Tianjin area, and
Guangzhou.
8
Hong Kong is also a point of con-
nection. There are also limited and slow satellite
services in some parts of the country.
9
The private
companies that run the fber-optic networks must
confgure router switches, which deliver packets
of data between networks, at the edge of the net-
work where signals cross into foreign countries.
10
These boundary routers form an
integral part of the Chinese Golden
Shield project to control information
fows. An American frm, Cisco, sold
routers and switches to the Chinese
government as part of this effort.
11

Censorship is built into the infra-
structure. Overlapping techniques are
employed to flter content that the
government considers politically sen-
sitive. Goldsmith and Wu note that
fltering is an instruction to drop
information from or for certain ad-
dresses. In practice, the government
provides a list (the access control
list) of all the banned sites, identifed
by their IP address (e.g. 127.37.28.1)
and their URLs (e.g. wutangclan.
com).
12

One fltering method is IP (internet
protocol) blocking. China employs a
TCP (transmission control protocol)
reset system that inspects the content
of IP packets for blacklisted key-
words and IP addresses. If a black-
listed keyword or IP address is found,
the routers controlling the traffc will
block the data going back and forth
between those addresses, and close
the connection. This packet inspec-
tion has occurred with several large
international sites, such as YouTube.
13

The government also uses IP address redirection
through the use of DNS (domain name system)
tampering. The Chinese control many of the
authoritative name servers that are trusted to
point to the correct IP addresses for a given do-
main name or URL. As a result, this enables the
government to redirect requests to blacklisted do-
mains to whatever approved website they wish.
14

In an additional effort to restrict content, MIIT
informed computer manufacturers in May 2009
that all new PCs sold in China after July 1st
were required to have fltering software called
Green Dam pre-installed. This project has been
described as ultimately unsuccessful: researchers
at the OpenNet Initiative discovered that the fl-
tering was ineffective and included unpredictable
and disruptive blocking of political content.
15
The
ensuing controversy provoked a rare reversal of
Chinese policy as the software was made
optional.
16
CHINA
MALAYSIA
INDONESIA
LAOS
THAILAND
CAMBODIA
VIETNAM
SOUTH
KOREA
JAPAN
PHILIPPINES
BRUNEI
TAIWAN
1
2
3
MALAYSIA
4
5
Internet service providers
The next level in the pyramid of control are in-
ternet service providers (ISPs) -- the retail sellers
of internet access who are licensed by the nine
access providers.
17
Chinese law requires ISPs to
store important user data including identifers, a
log of activities, and URLs visited for at least 60
days. New users must register with local police
bureaus. ISPs themselves are liable if they host
content that is considered to be politically objec-
tionable.
18

Internet content providers
Further down, one reaches the internet content
providers (ICPs) who operate platforms for creat-
ing or sharing information, including blogs, email
and chat services. ICPs must take a voluntary
pledge initiated by the Internet Society of China
(governed by the MIIT) known as the Public
Pledge of Self-Discipline for the Chinese Internet
Industry. This pledge vows to avoid disrupting
state security or social stability.
19
Violating the
pledge may result in reprimands or the revocation
of an operating license.
Different services have different obligations. First,
several blog providers such as Tencent, MSN
China, TOM, and Qianlon signed the Conven-
tion on Blog Service Discipline in 2007.
20
The
convention requires blog providers to have terms
of service banning the dissemination of rumors
or false information. Signatories are expected to
encourage real name registration and to manage
content on their platforms by deleting posts con-
sidered inappropriate or illegal.
21
This does not
seem to have impacted the growth of blogging in
China -- the number of microblog (or weibo)
users more than tripled in just six months in
2011 -- but it does mark a limit on freedom of
expression.
22
Service providers are afforded some
degree of discretion, leading to uneven patterns
of fltering and variations in the transparency and
methods of censorship.
23

Secondly, email and chat services are expected
to provide information to the authorities upon
request. The unquestioned compliance of Yahoo!
in cases involving the email accounts of jailed dis-
sidents proved what a minefeld this can be (see
case study in Part 2. 2 below). Chat services must
flter and store information. For instance, QQ
(the Tencent-owned popular Chinese instant mes-
senger) was found to have a keyword-blocking
program within their chat client that monitored
and recorded users communications.
24
1.2 Seek and ye shall not fnd: The complicity of
search engines
The limitations placed on ICPs are minimal
compared to the restriction on a users ability to
fnd content at all. Underneath the multitude of
providers and agencies lie nearly half a billion
users. Search engines are some of the primary
portals that help these users navigate the internet.
They are also one of the most powerful tools for
potential repression (see Box 3). Baidu, who now
has a partnership with Dell as well as Microsoft,
dominates the Chinese market.
Search engines maintain lists of keywords,
phrases, and website addresses that provide
guidance as to what should be blocked or
removed. These are, in general, at the discretion
of each company. Despite this fexibility,
companies tend to err on the side of conservatism
in order to avoid provoking confict with the
government. Companies run diagnostic tests
to see which words, phrases, and websites are
regularly blocked.
25
Different engines yield vastly
different results, so there is little consistency in
access to information.
These variations can be attributed to several
factors, including the complexities of the Chinese
language and its varied transliterations. But it still
points to the fact that whatever companies may
say about being forced to block specifc keywords
or URLs, there does not appear to be a single list.
That company X omits more results related to
freedom or liberty than company Y seems to be
at least partly due to deliberate action on the part
of company X.
This is a pivotal issue for U.S. companies for two
reasons: because of their traditional strength in
search capacity; and, because such complicity in
censorship means that they are betraying values
that they claim to uphold.
But there are other options for search engine
companies. When Google discovered that an
uncensored service was unfeasible in China, it
withdrew to Hong Kong, thereby abdicating its
role as a primary censor. Results are now fltered
by the Great Firewall rather than Googles search
platform. Placing the onus for censorship on the
Chinese government itself, rather than the corpo-
ration, is one alternative option.

How do search engine companies shape Chinese cyberspace?
Empirical studies have documented pervasive fltering across both domestic and foreign owned
search engines in China. Key fndings include:
Search engines are a powerful tool. They have become the gatekeepers of the internet by
connecting users to online content. Search engines are also a formidable threat to countries that
restrict the information environment.
Chinas Golden Shield is pervasive but not comprehensive. Information can get through.
Search engines are the last checkpoint between users and content. In order to service China, they
are required to obtain a license - and in order to obtain a license they are required to flter. But how
do they flter?
Chinese cyberspace is strictly monitored. Search engine results are keyword-fltered and web-
sites are censored in accordance with Chinese policy. Government authorities closely scrutinize
foreign and domestic search engines in China.
Which way is the wind blowing? Government offcials from the State Council Information Offce
frequently meet with top executives of service providers to anticipate upcoming fltering
requirements.
Microsoft, Yahoo!, and Baidu yield drastically different search results. Search engine
companies create their own list of blocked sites and blacklisted key words by interpreting and
even anticipating Chinese government policy. This affords search engines considerable fexibility
and may result in over-blocking.
Search engines lack transparency and accountability. While search engines indicate when
content has been censored, the notifcations are vague and unstandardized, and the process
remains opaque.
Keyword blocking policies within the Great Firewall have varied over time. Some investigators
suspect that a government-sanctioned blacklist does exist, although one has never surfaced. They
attribute the difference in search results across platforms, and even within platforms, to a variety
of factors including anticipated noise variation, particularities of the simplifed Chinese script,
different fltering methodologies and varying parameters around selecting which black listed
terms are indexed.
Sources: Clive Thompson. 2006. Googles China Problem (and Chinas Google Problem). New York Times. April 23, 2006; Nart
Villeneuve, 18 June, 2008. Search Monitor Project: Toward a Measure of Transparency. Citizen Lab Occasional Paper #1; Zhu,
Tao, Christopher Bonk and Dan S. Wallach. 2011. An Analysis of Chinese Search Engine Filtering. Cornell University Library. 19
July 2011.
Box 3.
SecDev Analytics 6
7
1.3 Publicity and public order: Additional
considerations
Controlling the media
Online media and journalists are of particular
interest to the Chinese authorities especially as
the job description has blurred over the past few
years. Bloggers and activists are now de facto cor-
respondents. The State Council Information Of-
fces (SCIO) Provisions on the Administration of
Internet News Information Services regulates the
content of news websites (another grey area). The
provisions include requirements for registration,
content, external government supervision, and
penalties. The violations are very broad, including
harming the honor or interests of the nation.
26

Such sweeping statements allow signifcant inter-
pretative scope, empowering the government and
rendering users arbitrarily vulnerable. An indi-
vidual can almost always be found to be violating
the law in some sense, enabling the government
to arrest or punish them at will despite the fact
that the Chinese constitution protects the right to
free expression, privacy, and academic research.
27

The SCIO also grants permission to create a
news information service. Staffng and fnancial
requirements are stringent. SCIO and provin-
cial government information offces have broad
supervisory authority. Financial penalties are stiff,
and infringing organizations can be shut down.
In February 2009, the offcial China News Ser-
vice created a blacklist of journalists engaged
in unhealthy professional conduct.
National security
The crime of harming the honor or interests
of the nation is supplemented by the Law on
Guarding State Secrets, frst promulgated in 1989
and revised in 2010 to more comprehensively tar-
get Internet and telecommunications companies.
The revised law requires them to monitor, record
and delete content that leaks state secrets,
however broadly and ambiguously defned. It
demands full corporate cooperation with relevant
government agencies during investigations.
28
The
April revision overlaps with and reinforces the
Administration of the Maintenance of Secrets
in the International Networking of Computer In-
formation Systems Provisions, which came into
effect in January 2000. Pursuant to the Law on
Guarding State secrets, these provisions banned
the storage, processing, or transmittal of state se-
crets over the internet.
29
But critically for internet
service/content providers and search engines, in-
dividuals, corporations, and other organizations
can be held vicariously liable for activities that
happen within their realms of control.
30

**
In sum, Chinas system of control is pervasive
and aggressive, from a carefully set-up infrastruc-
ture at the top to rules, regulations and imposed
self-censorship among millions of end users. The
active complicity of search engines the primary
gatekeepers of information - is an invaluable
censorship tool. In September 2011, the Peoples
Daily (the main newspaper of Chinas Commu-
nist Party), worried about the growing audience
and infuence of Twitter-like micro-blogging web-
sites, and urged further crackdowns on internet
freedom. Internet opinion is spontaneous, but
increasingly shows signs of becoming organized,
asserted a team of writers for the partys top
theoretical journal, Qiushi (Seeking Truth). Un-
less administration is vigorous, criminal forces,
hostile forces, terrorist organizations and others
could manipulate public sentiment by manufac-
turing bogus opinion on the internet, damaging
social stability and national security.
31
The ques-
tion that remains for the rest of this document
is how Western companies can work within this
tight system and take advantage of business
opportunities without compromising their own
values.
SecDev Analytics 8
Internet companies operate in a narrow space
between collusion and collision with the Chinese
government. The allure of the worlds largest
pool of internet users back-dropped by an infor-
mation environment overrun with state-imposed
restrictions has corporations wrestling with their
core business practices.
Companies from all corners of the world face
similar problems. But many of the biggest players
are based in the United States. U.S. internet com-
panies operate under the scrutiny of Congress,
human rights groups, and international opinion.
Critics have alleged companies are failing to meet
international legal standards and self-declared
ethical obligations in their bid to comply with
local regulations. Many of the companies con-
cerned have taken refuge in the grey area between
national and international standards to justify
their defaulting to local compliance.
If internet companies do not acquiesce to Chi-
nese regulations, they risk losing their operating
license. At the same time, if they do not act in
accordance with U.S. and international laws and
norms, they risk losing their integrity, while their
Chinese users risk losing their freedoms, and in
some cases their lives. Corporations that prosper
in a democratic society have a responsibility to
refrain from abetting the repression of foreign
citizens for the sake of profts.
This section reviews a number of documented
case studies that are representative of the ethi-
cal dilemmas faced by U.S. companies working
in China. These companies have been selected
primarily because they are internet giants. They
wield tremendous power. While this report gives
search engines particular attention due to their
powerful role in censorship, the actions of com-
panies such as Skype and Cisco merit discussion
to demonstrate that the problem is more than
just search. The following narratives demon-
strate that with suffcient pressure, companies
have eventually come down on the side of ethical
business practices. The cases and controversies
examined in this section include:
1. Google: Concerns about its earlier decision
to offer a censored search engine,
Google.cn, eventually led to its withdrawal
from the Chinese search market in 2010.
2. Yahoo!: Acquiesced without appeal to the
authorities demands to hand over private
user data, resulting in jailed dissidents,
lawsuits, and embarrassing apologies.
3. Microsoft - MSN Spaces and the
Bing-Baidu partnership: MSN Spaces
blocked entire blogs with no accord to
transparency or legal process. A new
partnership between Microsofts search
engine Bing and Chinese engine Baidu
raises concerns about censorship.
4. Skype: Despite assurances to the contrary,
upon partnering with TOM-Online,
personal user data and communications
were fagged and stored on publicly
accessible servers.
5. Cisco: An equipment manufacturer, Cisco
supplied hardware to China in order to aid
in the initial construction of the Golden
Shield.
Part 2. Complicity:
U.S. corporations in the Chinese Internet market
9
2.1 Google: Dont be evil; do make money
After struggling with the contradictions of a cor-
porate commitment to openness and the Chinese
practice of censorship, Google capitulated and
introduced a fltered Google.cn search engine
in Mainland China in 2006. However, Google
found it increasingly diffcult to justify a censored
presence in China and eventually withdrew its
operations in 2010. By so doing, Google became
a poster-child for ethical behavior an example
of the notion that principles should trump profts.
From the get-go, Google demonstrated a more
ethically sound though arguably nave
understanding of the challenges it faced in China
than many of its competitors. Its original business
motto dont be evil and its corporate belief that
information is a powerful source of good put it
directly at odds with Chinese censorship
policies.
32

For several years Google operated outside of
China, meaning that while its search results were
censored by the Golden Shield, it did not have
to self-censor. But this proved to be a logistical
nightmare. The volume of queries that Google
had to service and the constricted physical in-
frastructure, which bottlenecked at three cable-
landing sites, eventually convinced Google that
boycotting a dedicated Chinese service was no
longer feasible.
In December 2005, China licensed Google as an
ISP. Google China went live on 27 January 2006,
headed by a renowned computer scientist, Kai-Fu
Lee, whom Google hired away from Microsoft
for $13 million.
33

Former Google CEO Eric Schmidt disclosed that
Google.cn censored thousands of keywords and
web addresses in accordance with Chinese laws.
Google admitted that it generated an internal
black list by studying the fltering habits of com-
petitors and Chinese authorities.
34

Despite its new .cn website, the company left its
global site in Chinese online a decision which
proved controversial. Steven Levy reported
that in 2009, Chinas top propaganda offcer,
Li Changchun, searched for his own name on
Google.com and found several critical comments.
The government demanded that Google remove
the link on Google.cn directing users to the
global site but company executives considered
the request to be a step too far, and refused to
acquiesce.
35

Google initially argued that its censored services
were better than nothing,
36
saying later on that
their focus had really been whats best for the
Chinese people. Its not been about our particular
revenue or proft or whatnot.
37

Empirical testing at the time revealed that
Google was censoring less than its competitors
according to one study, over 10% less than
Baidu and 5% less than Yahoo!.
38
However,
Googles practice of prioritizing approved local
content limited the users search experience and
exacerbated censorship.
39

Googles complicity attracted acrimony at home.
Representative Jim Leach blasted Google as a
functionary of the Chinese government,
40

while his colleague Christopher Smith accused
them of sickening collaboration that was de-
capitating the voice of the dissidents.
41
Protesters
waved placards outside the companys Mountain
View, California headquarters.
42
Guo Quan, an
activist and former law professor, vowed to sue
Google for excising his name from search
results.
43

At the same time, Google held some respectable
positions on other issues. In a strategy aimed
at minimizing its vulnerabilities in China and
mitigating potential ethical dilemmas, Google
maintained a policy against storing personal data
in China. Although it censored information, it
declined to turn over private data to the secu-
rity apparatus.
44
This prevented it from offering
Gmail, Blogger, or Picasa, and compelled it to
modify other services. The company also denied
its China-based workers access to its production
code, a key to creating new products.
However, as Google co-founder Sergey Brin said
in 2010, Things started going downhill after
the Olympicsour other sites, YouTube and
whatnot, have been blocked. And so the situa-
tion really took a turn for the worse.
45
After
unsuccessful discussions with the government,
who were crystal clearthat self-censorship is
a non-negotiable legal requirement,
46
Google
withdrew from China rather than comply with its
onerous burdens on free speech and privacy.
47

Google closed its internet search service in China
and directed users to its uncensored search engine
based out of Hong Kong. The move infuriated
Chinese offcials. Even so, Google retained a
sizeable workforce in China of 500 employees,
including its research and development team and
a sales force. Google continues to operate online
SecDev Analytics 10
maps and music,
48
and sells display ads to Chi-
nese companies.
49
China renewed Googles ICP
license in 2011 allowing the Google.cn domain
name to redirect users to its Hong Kong based
search engine, where results are not censored but
must pass through the Great Firewall.
50

2.2 Yahoo!: Going native
Yahoo! was one of the frst foreign brands to of-
fer simplifed Chinese language services in China.
Since entering the market in 1999, Yahoo! has
encountered signifcant problems balancing the
demands of the Chinese government with expec-
tations of corporate social responsibility. This
came to a head in 2005, when Yahoo! complied
with a request by the Chinese government to
hand over full information related to the private
email correspondence of Chinese regime critics.
These dissidents were subsequently arrested and
jailed.
Yahoo! was catapulted into the uncomfortable
limelight because its compliance was so readily
forthcoming: no questions asked, no deferral to
due process, and no respect for the privacy and
safety of its users. Most famously, Yahoo!
employees handed over all email-related
information of the Chinese editor, reporter and
poet Shi Tao, who had used his Yahoo! email ac-
count to communicate with the New York-based
group Democracy Forum.
51
His correspondence
on February 22, 2004 summarized a government
directive ordering media organizations to down-
play the anniversary of the 1989 crackdown.
Shi Tao was arrested for leaking state secrets and
imprisoned for ten years. The court documents
cited evidence obtained from Yahoo!. The com-
pany was also implicated in the arrest of three
other Chinese dissidents: Wang Xiaoning, Li Zhi
and Jiang Lijun.
52
Representative Christopher Smith had been fol-
lowing American internet operations in China
with keen interest and deplored their conduct. He
confronted the top executives of internet behe-
moths when he chaired a hearing entitled The
Internet in China: A Tool for Freedom or Sup-
pression? Representatives from Google, Yahoo!,
Microsoft and Cisco testifed to the committee
and sustained scathing criticism.
Yahoo!s reputation was further tarnished after
it came to light that its general counsel, Michael
Callahan, falsely testifed that the company had
no knowledge of the facts surrounding the Shi
Tao case when they shared information with the
authorities. Representative Tom Lantos stated
that a company of Yahoo!s resources and
sophistication operating in the Chinese milieu
should have taken every conceivable step to
prevent the automatic compliance with a request
from the Chinese police apparatus.
53

Congressional hearings coincided with a suit that
was fled on behalf of dissident Wang Xiaoning
and two other plaintiffs against Yahoo! in the
United States under the Alien Tort Claims Act.
54

Arguably the plaintiffs would have lost the suit
under the stringent criteria required by the Act
and defense arguments that the U.S. justice sys-
tem did not have jurisdiction. Nevertheless, under
the weight of public opinion and political pres-
sure, Yahoo!s executives personally apologized to
the families, committed to securing their freedom
and settled the case for an undisclosed amount.
55

The experience clearly took its toll on Yahoo!. In
an effort to forestall future crises, Yahoo! bought
a 40% stake in Chinas biggest e-commerce frm
Alibaba for one billion dollars and consolidated
its subsidiaries. As of October 2005, Yahoo! had
effectively transferred operational and compli-
ance responsibilities for its China operations to
Alibaba and retained only one of four board
seats.
56

2.3 Microsoft: MSN Spaces and the Bing-Baidu
partnership
Microsoft has encountered dilemmas in China
on multiple fronts, particularly with its MSN and
search engine services. In line with its contempo-
raries, MSN has obligingly fltered and removed
online blogging content at the governments
request. After sustaining a barrage of negative
publicity for this decision, Microsoft announced
a partnership with Chinese search engine giant
Baidu and popular Chinese networking site Ren-
Ren. These joint ventures raise concerns about
Microsofts commitment to user privacy and ac-
cessible online content.
Microsoft has invested millions in China over
the years, and has played a critical role in devel-
oping the countrys software industry over the
past decade.
57
After establishing a joint venture
with Shanghai Alliance Investment Ltd. (SAIL),
Microsoft launched an online Chinese portal in
2005.
58
Like Yahoo!, Microsoft readily complied
with government requests to block online content
11
without any measure of transparency or account-
ability. In contrast, however, there is no evidence
of MSN China handing over personal user details
an important distinction worth noting.
The corporate decision to unquestionably comply
with government regulations created shockwaves
both within and outside of the Great Firewall.
The controversy centered on MSN Chinas free
blogging platform called MSN Spaces. In fve
months, MSN Spaces quickly overtook the suc-
cessful domestic blogging site Bodee to become
the most popular platform. Users preferred its
technically superior software and its integration
with Microsofts instant messaging service. But
most importantly Chinese bloggers believed this
platform was less heavily censored.
59
Unlike other platforms that fltered entire blog
entries, MSN Spaces limited fltering to blog titles
and the individual titles of blog posts. Offend-
ing entries could still be posted. But as it turned
out, these could cause the entire blog to be shut
down within days.
60

In 2005, Microsoft shut down the popular blog
belonging to cutting-edge reporter Zhao Jing,
written under the pseudonym Michael Anti.
Human rights groups were especially galled at
Microsofts immediate and unquestioning compli-
ance, given that there was no clear legal process
involved.
Called before Congress to testify and criticized
by rights groups, Microsoft launched an internal
review of its censorship policy. It announced that
MSN China would only censor blogs on receipt
of a legally binding order and would indicate that
a blog has been censored in accordance with
government restrictions. These blogs would
remain universally accessible outside of China.
61

Human Rights Watch reports that politically
sensitive MSN Spaces blogs have remained online
following this policy shift, but cautions that the
issue should be closely monitored.
Microsofts relationship with China came to the
fore more recently in July 2011, when its search
engine Bing announced its partnership with
Chinas largest search engine, Baidu. English
language queries made on the Baidu platform
will be redirected and attributed to Bing. Presum-
ably, results will be fltered according to Chinese
government standards and in line with the stricter
fltering practices employed by Baidu,
62
although
the terms of the agreement were not disclosed.
63

The partnership with Baidu is opportune for Bing
given the withdrawal of Google from Main-
land China. Baidu has also expressed interest in
reaching foreign markets, a move which could
be facilitated by the new partnership.
64
A Micro-
soft spokeswoman said, Microsoft respects and
follows laws and regulations in every country
where we run business. We operate in China in
a manner that both respects local authority and
culture and makes clear that we have differences
of opinion with offcial content management poli-
cies.
65

It is prudent to be skeptical about Microsofts
ability to determine content parameters yielded
by queries on a shared Bing-Baidu platform.
Baidu currently owns 76% of Chinas search
engine market.
66
It is obviously Beijings preferred
market leader and some have proffered that it
enjoys unoffcial government sponsorship.
67
A
joint American-Chinese venture of this kind is
going to encounter a host of challenges related to
the freedom of information.
There will be plenty of opportunities for scrutiny
regarding Microsofts position on user privacy
and freedom of information in China, as it con-
tinues to expand in new areas. In August 2011,
MSN and RenRen signed a deal to cooperate on
instant messaging and social networking.
68
That
same month, Microsoft signed a cloud comput-
ing agreement with state-owned China Standard
Software Company, the countrys leading Linux
operating system provider.
69
It is adding between
300 and 400 research and development staff to
its currently 3000-strong workforce in China in
support of these new initiatives.
Microsoft executives have announced that the
company will focus on improving its suite of
products with a focus on cloud computing, search
and advertising. They will be investing heavily in
consumer products, particularly its smartphone
platform. Given the uptake of mobile devices in
China, Microsoft is also hoping to gain traction
with its strategic partnership with Nokia.
70
Over-
all, Microsoft is positioning itself for growth, and
inevitably for more ethical dilemmas as it
expands into these new sectors.
1
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Ethical Issue Filtered content in
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information to
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Golden Shield
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Chinese Government
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likely fltering content
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Chinese law
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blog Zhao Jing
Filtering; violation of
user privacy through
stored information
Effect on Chinese
Citizens
Limits access to
nformation
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several dissidents
Enables government
to censor content and
surveil internet users
Exposes vulnerabilities in state and
defence operating systems
(Likely) limits access
to information; privacy
concerns
Limits freedom of
expression and
information
(Potential) User data
can be used to surveil,
arrest and prosecute
dissidents
Major Chinese
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TOM online ended
partnership in 2010
Sina.com.cn severed
ties in March 2011
Alibaba Group
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Baidu Shanghai Alliance
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TOM
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Chinese Government
MIIT; SCIO MIIT; SCIO; State
Security Bureau
Ministry of Public Safety China Information Technology
Security Certifcation Center;
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MIIT; SCIO SAIL, led by son of
former PRC president
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1
Cisco opens offces in China
Secured contract to build Golden Shield
Announces major investment in China
Internal 2002 Cisco presentation
leaked
Du v. Cisco
Doe v. Cisco
Licensed as an ISP in China
Goes live in China with fltered
search engine
Gmail accounts hacked
Stops censoring results and
redirects user to unfltered Hong
Kong based search engine
China renews operating license
1996
1998
2007
2008
2011
2011
Signs Government Security Program
disclosing its source code
Establishes joint venture with Shanghai
Alliance Investment Ltd (SAIL)
Admits blocking popular MSN Spaces
blog Zhao Jing
Partners with Baidu, Ren Ren, and
China Standard Software Company
Acquires Skype
TOM-Skype launched in China
Disclosed that it operated a key
word flter on text chats
Extensive surveillance,
monitoring and fltering revealed
VoIP declared illegal in China but
TOM-Skype still operating
Signs Pledge of Self Discipline for the
Chinese Internet Industry
Wang Xiaoning, Li Zhi, and Jiang Liju
sentenced to prison
Shi Tao convicted and sentenced to
prison
Yahoo! sued by wife of Wang
Xiaoning in federal court
2005
2006
2009
2010
2011
Cisco
2002
2003
2005
2007
2003
2005
2006
2011
2011
2004
2006
2008
2011
C
O
L
L
U
S
I
O
N

A
N
D

C
O
L
L
I
S
I
O
N
:

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r
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n
g

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d
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n
c
e

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n

C
h
i
n
e
s
e

c
y
b
e
r
s
p
a
c
e

Google Yahoo! Cisco Microsoft Skype
Operations in China Search Engine Search Engine and
e- mail
Routers Operating System Bing Search Engine MSN Services IM and VoIP
Ethical Issue Filtered content in
accordance with
Chinese law
Provided user
information to
Chinese authorities
Provides equipment for
Golden Shield
Supplied source code to the
Chinese Government
Partnered with Baidu;
likely fltering content
in accordance with
Chinese law
Censorship of
popular MSN Spaces
blog Zhao Jing
Filtering; violation of
user privacy through
stored information
Effect on Chinese
Citizens
Limits access to
nformation
Arrest and prosecution of
several dissidents
Enables government
to censor content and
surveil internet users
Exposes vulnerabilities in state and
defence operating systems
(Likely) limits access
to information; privacy
concerns
Limits freedom of
expression and
information
(Potential) User data
can be used to surveil,
arrest and prosecute
dissidents
Major Chinese
Corporate Partner
TOM online ended
partnership in 2010
Sina.com.cn severed
ties in March 2011
Alibaba Group
(Partnered after
Shi Tao case)
Alibaba Group China Standard Software
Company (state owned), one of
over 3000 Chinese partners
Baidu Shanghai Alliance
Investment Ltd (SAIL);
Renren
TOM
Major Connection to
Chinese Government
MIIT; SCIO MIIT; SCIO; State
Security Bureau
Ministry of Public Safety China Information Technology
Security Certifcation Center;
Ministry of Education
MIIT; SCIO SAIL, led by son of
former PRC president
Jiang Zemin; MIIT; SCIO
MIIT; SCIO

SecDev Analytics 14
2.4 Skype: Breaching trust
In China, the 3.1 million users of TOM-Skype
(Voice Over Internet Protocol Software) have had
their communications and personal user details
surveilled, fltered and stored on public servers.
Recently acquired by Microsoft, Skype has sus-
tained widespread criticism for its operations in
China, which also includes keyword fltering.
In November 2004, Skype launched a version
of its online voice and chat system developed
in partnership with TOM Online Inc., a Hong
Kong-based company. This version, tailor-made
for the Chinese market, prevented users from
sending text messages with banned phrases like
Falungong and Dalai Lama.
71
By 2005, with
3.1 million users, China was Skypes third largest
market.
72

Skypes CEO Niklas Zennstrom readily disclosed
that TOM had implemented a text flter, which
is what everyone else in that market is doing.
73

But he insisted that the privacy and security of
users were never compromised.
74
In 2006, Skype
assured TOM-Skype users that:
75
The text flter does not affect in any way
the security and encryption mechanisms of
Skype.
Full end-to-end security is preserved and
there is no compromise of peoples privacy.
Calls, chats and all other forms of
communication on Skype continue to be
encrypted and secure.
There is absolutely no fltering on voice
communications.
Behind the scenes, things were murkier. A
detailed investigation of log fles across eight
servers in 2008 revealed that TOM-Skype
violated every assurance it had made to its users
in 2006.
76
The entirety of chat messages passed
over the TOM-Skype platform had been upload-
ed and stored on servers if fagged keywords were
detected. These messages were accompanied by
user details, such as IP addresses and usernames.
Most damaging were the log fles that recorded
caller information, such as date, time and recipi-
ent phone number. All of these details were stored
on insecure public servers along with the associ-
ated encryption key.
Analysts suspect that surveillance was not exclu-
sively based on keyword technology. Many of the
fagged words were too common to be fltered
across the platform. They hypothesize that
fltering criteria may have included specifc user-
names and TOM-Skype accounts, which suggests
much more targeted surveillance practices.
77

Despite cooperation with the government, TOM-
Skypes future in China became uncertain at the
end of 2010. In January 2011, the Ministry of
Industry and Information Technology announced
that all VOIP phone services are illegal on the
Chinese mainland, except those provided by
telecommunications carriers China Telecom and
China Unicom.
78

This announcement was followed with confu-
sion and bureaucratic wrangling. Unfazed, Skype
assured customers in February that it was still
operating through its majority Chinese partner,
TOM Online.
79
That seems to be the case today.
It is prudent to consider whether Chinese restric-
tions against foreign operated VOIP services may
have had more to do with co-opting the market
for Chinese companies than security concerns.
80

Microsofts acquisition of Skype in May 2011
for $8.5 billion USD may affect the TOM-Skype
partnership due to Microsofts joint venture with
Baidu. Its future remains to be seen.

15
2.5 Cisco: Selling surveillance
Cisco is unique among these case studies, in that
it sells hardware to the Chinese government.
Routers have many purposes, from parental
controls to fltering online child pornography.
They are designed to control online content,
and there are many legitimate applications for
Cisco products. Nevertheless, irrefutable evidence
has surfaced that Cisco hardware is a critical
component of Chinas online surveillance system.
Cisco has been heavily engaged in China since
1998 when it secured a major contract with
telecommunications company CHINANET to
help build the Golden Shield.
81

A 2002 internal Cisco presentation was leaked,
detailing the mechanisms and motivations
behind The Golden Shield Project. A particularly
damaging slide describing a Public Network
Information Security Monitor System feature
revealed the extent of Ciscos complicity. It cited
combat Falun Gong evil religion and other
hostilities as one of three objectives in creating
the Golden Shield.
82
The slides immediately
following outlined business opportunities this
contract would entail, including high starting
point planning, high standard construction,
technical training, and security, operation
maintenance.
83

According to journalist Ethan Gutmann, based
on discussions with an unnamed top Chinese
engineer, Cisco developed a router device, an
integrator, and a special frewall box specifcally
for government censorship. These were sold
to China at a signifcantly discounted price.
84

Cisco insists that it did not tailor its products to
Chinese government specifcations, but the leaked
presentation, along with journalistic accounts,
suggest otherwise.
This surveillance system, some have contended,
has grown into the policenet, recording a
vast amount of personal information such as
work history, personal relationships, political
tendencies, surfng activity, and email for at least
60 days. The system is portable and accessible to
law enforcement throughout China.
85

David Zhou, a systems engineer manager at
Cisco HQ, said, We dont care about the
[Chinese governments] rules. Its none of Ciscos
business, and admitted that, We have the
capability to look deeply into the packet.
86

Simply put, Zhou revealed that Ciscos routers
can intercept information and essentially render
the entire Chinese web keyword searchable. He
also disclosed that Cisco reported to State
Security, the Public Security Bureau and the
Peoples Liberation Army but would not say
whether Chinese authorities were given access
to these surveillance capabilities.
87

Cisco continues to be closely partnered with the
Chinese government. In 2007 it unveiled a plan
to invest $16 billion dollars over the next three
to fve years, in consultation with the Chinese
government, to boost the countrys social,
economic and environmental performance.
The program involves signifcant investments into
Web 2.0 technologies, and reaches out to small
and medium sized companies through its business
partner Alibaba.
88
In addition to fnancing
vocational training centers to teach network
skills, and investing $17.5 million dollars into
Alibaba as part of its IPO, Cisco is making $400
million dollars available in fnancing to the
Chinese government to buy Cisco equipment.
89

Another recently announced project, Peaceful
Chongqing, is slated to be Chinas most extensive
video-surveillance initiative, with half a
million video cameras designed to cover nearly
400 square miles. Cisco has allegedly been
awarded the contract to supply the necessary
routing equipment to operate a sophisticated
video surveillance network. The objective of
Peaceful Chongqing clearly goes beyond traffc
control and into the realm of law enforcement.
90

Although it is unclear whether Ciscos
participation has been secured, the prospect of
Western companies contributing to this dual-
hatted scheme is in direct contravention of
the Tiananmen sanctions,
91
which suspended
export licenses for crime control and detection
instruments and equipment.
92

Since 2002, two cases have been brought against
Cisco Systems which are intended to set legal
precedent for corporate social responsibility in
this sector.
93
The frst complaint, Du v. Cisco
being tried in the United States District Court
of Maryland, alleges that Cisco knowingly
and actively collaborated
94
with the Chinese
government and customized its products to
facilitate surveillance and censorship, which has
resulted in gross human rights violations. The
plaintiffs argued that the defendants sought to
maximize their proft share in the Golden Shield
Project, while fully cognizant of the resulting
SecDev Analytics 16
human rights violations. The plaintiffs maintain
that Ciscos participation in the creation,
expansion, and maintenance of the Golden Shield
Project has rendered them responsible for the
human rights violations that have occurred under
its jurisdiction.
95
A second case, fled by the
Human Rights Law Foundation, seeks a class-
action status on behalf of Falun Gong members.
The plaintiffs accuse Cisco of knowingly
providing Chinese government agencies with
equipment to identify, incarcerate, torture, and
sometimes kill Falun Gong members.
96

**
2.6 Having their cake and eating it too
As the case studies show, China is a hard nut to
crack. Complying with local regulations is evi-
dently a necessary part of doing business in any
jurisdiction. However, if those local regulations
contravene commonly held and even self-declared
values, this signals a problem. Companies are
clearly struggling with how to navigate the
censorship terrain while staying competitive at
the same time. But as the fnal section of this
report aims to show, there is little recourse be it
national or international, voluntary or binding
to control or offer guidance for behavior.
17
U.S. internet companies in China do not have an
easy ride. The competition between economic
interests and the protection of human rights is
a crucial and controversial issue. As Google
discovered before their eventual withdrawal from
the country, they were unable to operate legally in
China without censoring results.
Quite aside from Chinese regulations, U.S.
companies must also take into account U.S.
and international law, in addition to a litany of
non-binding principles and initiatives, as well as
reasonable ethical standards. In addition,
businesses themselves often have signed
statements supporting freedom of expression and
protection of privacy.
97
While U.S. corporations
cannot change Chinese law, they do have a
responsibility to respect the rules, regulations,
and values of their home base.
The real challenge lies in realistically and
adequately translating these norms concerning
freedom of expression, privacy, and human rights,
into actionable policies. Remaining a competitive
player in such an infuential and large market is
undoubtedly important. But so too is ensuring
that operations are conducted ethically and in
line with national and international obligations.
In this section, we examine four sources that
bear on U.S. internet companies and discuss
why thus far they have failed to address
operating challenges in China:
1. U.S. policy as articulated by Secretary of
State Hillary Rodham Clinton and
enshrined in the May 2011 International
Strategy for Cyberspace. Although
current U.S. policy is a valuable and
admirable step, there has been scant
concrete action. Voluntary codes of
conduct have so far accomplished little.
2. Relevant U.S. statutory and case law that
may afford remedies to aggrieved parties
against companies who aid and abet
abuses: U.S. courts have found that current
statutes do not apply to corporations,
meaning that the worst legal repercussion
for a corporation is a bruised ego
3. Internationally recognized legal principles:
These boil down to commonly held ethical
values and suggested positions that are
ultimately unenforceable and subject to
broad interpretation.
4. Proposed legislation that attempts to
address the challenges that this paper
raises: While this is a potential partial
remedy, it remains to be seen whether it
will pass. Previous iterations have stalled.
Below we aim to show that the existing norms
and legislation are inadequate with respect to
U.S. corporations doing business in China in
general, and internet companies in particular.
The combination of inaction, widely varying
interpretations, and a myriad of formal caveats
and reservations has rendered the legal and policy
terrain unnavigable. But the onus is not just on
the government. Businesses themselves must
make an active choice to behave responsibly.
Part 3. Current policy and legal measures
SecDev Analytics 18
3.1 Locutions of liberty: U.S. policy
The U.S. is at the global forefront of states
supporting freedom of expression online.
In January 2010, Secretary of State Hillary
Rodham Clinton aligned Franklin Roosevelts
classic Four Freedoms - freedom of speech,
freedom of religion, freedom from fear, and
freedom from want - with a ffth freedom to
connect, i.e. the freedom of expression,
assembly and association online.
Secretary of State Clinton tied the internet to
traditional forms of freedom of expression: this
freedom is no longer defned solely by whether
citizens can go into the town square and criticize
their government without fear of retribution.
Blogs, emails, social networks and text messages
have opened up new forums for exchanging ideas
and created new targets for censorship.
98

Clinton also emphasized the tension with China,
stating that: we look to the Chinese authori-
ties to conduct a thorough review of the cyber
intrusions that led Google to make its announce-
ment. And we also look for that investigation and
its results to be transparent.
The internet has already been a source of
tremendous progress in China, and it is fabulous.
There are so many people in China now online.
But countries that restrict free access to informa-
tion or violate the basic rights of internet users
risk walling themselves off from the progress of
the next century.
99

In February 2011, she reiterated the earlier call
for a global commitment to internet freedom and
the protection of human rights online this time
emphasizing protecting both transparency and
confdentiality in addition to being a public
space, the internet is also a channel for private
communications. And for that to continue, there
must be protection for confdential communica-
tion online.
100

Importantly, Clinton acknowledged that the
U.S. itself restricts certain kinds of speech in
line with law and international obligations, but
asserted that such enforcement was transparent
and was subject to appeal. While this did not
assuage all critics, the emphasis on transparency
and accountability is undoubtedly lacking in the
Chinese context.
Building on these seminal speeches, the United
States released its foreign policy on cyberspace,
International Strategy for Cyberspace: Prosperity,
Security and Openness in a Networked World,
affrming the U.S. core commitments to
fundamental freedoms, privacy, and the free
fow of information. The strategy outlines a
framework for achieving its policy priorities of
openness, security, reliability and interoperability
in cyberspace.
101

With this in mind, current policy pronouncements
are commendable. Clintons speeches hit points
of crucial importance, emphasizing the impact
that freedom of access has on progress and
competition as well as the importance of
protecting privacy.
19
3.2 Tools to implement U.S. policy: Voluntary
codes
Despite White House support for online freedom
of expression, the tools, rules, and regulations
that put policy into practice or hold U.S. citizens
or corporations accountable for human rights
abuses are wanting. Voluntary codes have
been rather unsuccessful and existing statutory
authority is limited. Proposed legislation to
protect freedom of connectivity remains in the
drafting stage, while earlier efforts to move
similar
legislation forward have stalled.
The Global Network Initiative (GNI) a U.S.-
dominated coalition of stakeholders including
Microsoft, Yahoo!, Google, and several academic
and civil society groups is one example of a
voluntary code that may prove useful. It aims to
provide a systemic approach for companies
facing government requests to protect the rights
to freedom of expression and privacy of their
users while respecting legitimate government
authority.
102
Ultimately, the GNI hopes its
principles will become a shared standard for
technology companies and stakeholders.
Independent monitors are to produce written
evaluations of each companys implementation
of GNIs principles (which include freedom
of expression, privacy, responsible company
decision-making, multi-stakeholder collaboration,
accountability and transparency). The evaluations
will report on corporate responses to government
demands that contravene the principles of free
expression and privacy. Their objective is to
document case studies so as to determine the
effcacy of various approaches.
The reports are likely to prove interesting,
educational, and even persuasive. However,
as they have no legal traction and incur no
consequence for corporations who violate core
principles, they are unlikely to represent a robust
solution to the challenges outlined in this paper.
103

Proposed voluntary agreements by companies
to respect codes of conduct may be effective
in encouraging a shift in ethos. But thus far,
there is no evidence as to how effective they
will be. Likely, a more robust accounting and
consequence system is required.
3.3 The American way: Statutory remedies
There are effectively no repercussions for
corporations acting against U.S. and international
norms. In other words, there is currently no
concrete reason for companies to act with
reasonable ethical standards except for a
corporate conscience. But conscience-driven
decision-making has been elusive.
Aggrieved plaintiffs seeking relief for human
rights abuses resulting from activity online
have invoked two federal statutes: the Alien
Tort Statute (ATS)
104
and the Torture Victim
Protection Act (TVPA).
105
Despite the existence
of ongoing litigation, no case law currently
supports the conclusion that either of these
statutes applies to companies such as Yahoo!,
Microsoft, Google, Skype, or Cisco. There is
no statute that provides meaningful relief to a
plaintiff for damages incurred as a result of
corporate complicity in human rights abuses.
Turning over private information that leads
to arrest, torture, imprisonment or death,
or complicity in limiting freedom of expression
or, as Clinton phrases it, freedom to connect
is not punishable in an American court.
Alien Tort Statute
The ATS allows U.S. courts to hear human rights
cases brought by foreign citizens for abuses
conducted outside of the United States. However,
it has proved legally tortuous to apply to specifc
claims for relief. The only recent U.S. Supreme
Court decision to interpret the statute is Sosa v
Alvarez-Machain, 542 U.S. 692 (2004).
The court explained that the ATS provided
jurisdiction to hear cases but did not create a
cause of action. It also rejected the International
Covenant on Civil and Political Rights
(ICCPR), the Universal Declaration of Human
Rights (UDHR) and the UN Charter as legally
enforceable, particularly given that the U.S. only
ratifed the Covenant on the condition that it
was not self-executing.
106
It suggested that claims
made under the ATS must violate a norm of
customary international law so well-defned that
it requires the creation of a federal mechanism to
deal with them a point on which Alvarez failed.
A further issue with the ATS is that its
application to corporations is tenuous at best.
While it has been invoked in lawsuits, in the
case of Kiobel v Royal Dutch Petroleum, 621
F.2d 111 (2nd Circuit 2010), the Second Circuit
held that corporations cannot be held liable for
SecDev Analytics 20
violations of customary international law: that
corporations are liable as juridical persons under
domestic law does not mean that they are liable
under international law (and therefore, under
the ATS). Rather, individual liability had been
limited to natural persons.
In Presbyterian Church of Sudan v Talisman
Energy, Inc., the Second Circuit imposed a higher
standard of pleading in their dismissal of the
complaint, requiring that the mens rea standard
for aiding and abetting liability in Alien Tort
Statute actions is purpose rather than knowledge
alone. In non-legalese, this means that abuses
must be intentional in order to qualify under the
ATS. The court determined that in order to show
that a defendant aided and abetted a violation of
international law, a complainant must prove that:
1. the principal violated international law
2. the defendant knew of the specifc violation
3. the defendant acted with the intent to assist
that violation, that is, the defendant
specifcally directed his acts to assist in the
specifc violation
4. the defendants acts had a substantial effect
upon the success of the criminal venture
5. the defendant was aware that the acts
assisted the specifc violation.
The court found no evidence that Talisman
acted with the purpose of advancing the Sudan
Governments human rights abuses. That is a
standard that the plaintiffs who have sued Yahoo!
and Cisco might well surmount. Nevertheless,
the issue of the lack of applicability of the ATS to
corporations remains a stumbling block.
The Torture Victim Protection Act
The Torture Victim Protection Act also affords
no relief against companies. In Bowoto et al v
Chevron Corporation et al, 621 F.2d 1116 (9th
Circuit 2010), the plaintiffs took over an oil
platform operated by Chevron Nigeria Limited
off the coast of Nigeria. The court found that
the TVPA did not render the corporation liable
for the deaths of two protesters. The key is that
the statute states that individuals are liable
107
-
and accordingly the Ninth Circuit found that
Congress intended that only natural persons,
and not corporations should be found liable
under the Act.
There are no real alternatives to these two
statutes. Without relevant legislation, companies
cannot be held legally accountable for violating
human rights abroad. Currently, the worst result
is a damaged public image which generally gets
resuscitated fairly speedily.
3.4 We are the world: International principles and
initiatives
Despite the plethora of international initiatives,
positions, and statements concerning the internet,
freedom of expression, and corporate social
responsibility, there is a distinct lack of binding
commitments in any arena. Broad, sweeping
statements make for powerful rhetoric, but do
not provide for specifc action.
The U.S. Supreme Court enumerated appropriate
sources of international law in United States
v Smith, 18 U.S. (5 Wheat.) 153, 160-161
(1820): the law of nations may be ascertained
by consulting the works of jurists, writing
professedly on public law; or by the general usage
and practice of nations; or by judicial decisions
recognizing and enforcing that law. Although
international principles are in general diffcult to
enforce in U.S. courts (and indeed, the majority
of those discussed below are not legally binding)
they demonstrate the international communitys
position on the issue of censorship, freedom of
expression online, and corporate responsibility.
In general, they contrast strongly with the efforts
of the Chinese authorities to block access to
information. But rules and principles can be
applied so broadly that they become essentially
vacuous and meaningless. The U.S. should
not follow suit. They should pay attention to
international opinion and review existing laws
and regulations accordingly, taking informed
action that aims to deter corporations from
engaging in conduct that abuses or runs contrary
to those precepts. These norms support new
thinking and action by the U.S. to vindicate
accepted standards of law for free expression and
privacy, while continuing to enable the protection
of national security.
The following is in no way intended to be
a comprehensive survey of international
standpoints, but rather some brief examples of
where action has been suggested or undertaken.
It discusses:
United Nations statements that can be applied to
censorship and privacy; the UN Global Compact,
an initiative aimed at securing corporate social
responsibility; and, the 2011 eG8 meeting.
21
United Nations statements
There are several UN statements concerning the
importance of upholding the rights to freedom of
expression and privacy, and standards of con-
duct for companies. These include the: Universal
Declaration of Human Rights (UDHR);
108
the
International Covenant on Civil and Political
Rights (ICCPR);
109
the International Covenant for
Economic, Social and Cultural Rights
(ICESCR);
110
UN Norms on the Responsibili-
ties of Transnational Corporations and other
Enterprises with Regard to Human Rights;
111

and, commentary on the UN Norms, adopted by
the UN Sub-Commission for the Protection and
Promotion of Human Rights.
112
The frst three items and two Optional Proto-
cols
113
comprise the International Bill of Human
Rights. While the ICCPR and ICESCR are both
treaties, the Universal Declaration is non-binding.
However, there are some overlaps: for instance,
ICCPR echoes UDHR Article 12, stating that
no one shall be subjected to arbitrary or unlaw-
ful interference with his privacy, family, home or
correspondence. The Organization for Security
and Cooperation in Europe (OSCE) recently
released a report on internet freedom that refer-
enced Article 19 of both the ICCPR (including
that everyone shall have the right to freedom
of expression; this right shall include freedom to
seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in
writing, or in print, in the form of art, or through
any other media of his choice) and UDHR as
the key international norms that nations should
comply with to protect media freedom and free-
dom of expression online.
114

The United Nations Human Rights Commission
requires that any restriction on the freedom of
expression satisfy a three-part test: i) be provided
by law; ii) be required for the purpose of safe-
guarding a legitimate interest noted in Article 19
of the ICCPR; and iii) be necessary to achieve the
goal.
115
China would likely consider that legiti-
mate interest in particular, 19(iii)(b) concerning
the protection of national security or of public
order provides for its policy of online censor-
ship. It could be argued, albeit at a consider-
able stretch, that all of the seemingly innocuous
blocked content constitutes a national security
threat and is therefore a legitimate concern,
eligible for exemption from the principles of free
expression. Common sense says otherwise.
China signed but did not ratify the ICCPR while
the U.S. both signed and ratifed it in 1992.
Nevertheless, amongst several additional
reservations and declarations,
116
the U.S. Senate
imposed a declaration that the provisions of
Article 1 through 27 of the Covenant are not
self-executing. This lack of potential for action is
compounded by the broad scope of the UN
statements. The statements hold undoubtedly
huge importance and form the basis of shared
values, but those values are so general that they
are relatively easy to satisfy or justify. In practice,
they present few restrictions on conduct, particu-
larly as they precede the internet by quite some
time and hence do not take into account the po-
tential issues that come with such a special case.
UN Global Compact
Established in July 2000, the UN Global Com-
pact (UNGC) is a non-binding voluntary in-
ternational initiative that attempts to promote
corporate social responsibility via a common
policy framework of ten principles, including
safeguarding human rights.
117
Companies from
any industry worldwide may join, except if they
are sanctioned or blacklisted by the UN for ethi-
cal reasons, or manufacture cluster bombs and
landmines.
118
Those companies that sign up must
fulfll several expectations, including a mandatory
annual disclosure (known as a Communication
of Progress, or COP) of their progress in pursuit
of UN goals to their stakeholders. If a participant
does not complete the COP, they are downgraded
in status and after two years are de-listed and ef-
fectively publicly shamed by the UNGC.
As of 1 September 2011, there were 416
participating U.S. companies, the frst of whom
were Nike and Deloitte. Technology companies
who are part of the compact include Cisco, HP,
Microsoft, and eBay (who failed to submit a COP
in 2010). Although well-intentioned, the Global
Compact does not police companies or provide
legally enforceable standards of behavior rather,
it is a platform to encourage respect for its
principles.
119

e-G8
In May 2011, an eG8 meeting preceded the
Deauville G8 summit. This marked the frst time
that private sector actors and civil society groups
working with the internet met in the context of
the G8. The eG8 was designed to be a multi-
stakeholder, consultative method to develop
norms and policies for internet governance.
SecDev Analytics 22
The G8 host, French President Nicolas Sarkozy,
drew widespread criticism for a speech at the
meeting named Civilize the internet, arguing
that governments should intervene to regulate the
internet instead of simply protecting its openness.
He suggested that the internet should respect the
values and rules of each nation state. While cer-
tainly not a nonsensical statement, at one end of
the spectrum it counteracts the idea of the inter-
net as a kind of global commons and open space.
Ars Technica criticized the speech for its pater-
nalistic tone, and in an article wondered whether
civilization was in fact a code for regulations
favorable to big business and the national secu-
rity state.
120
The executive chairman of Google,
Eric Schmidt, warned against Sarkozys message,
saying that the internet is the greatest force for
good in the world. She should not have prema-
ture regulation ahead of innovation.
121

The G8 Declaration concerning Renewed
Commitment for Freedom and Democracy,
released at the conclusion of the Deauville sum-
mit, devoted signifcant attention to internet
policy issues. The fnal statement characterized
the internet as a lever for economic development
and an instrument for political liberty and eman-
cipation, stating that arbitrary or indiscriminate
censorship or restrictions on access to the internet
are inconsistent with States international obliga-
tions and are clearly unacceptable.
122

This statement is an important reference point for
the issues raised in this paper. However, the dec-
larations support for internet openness does not
sit easily with other aspects, including the state-
ments emphasis on the protection of intellectual
property and the need for increased government
regulation as well as certain G8 members domes-
tic cyber security policies.

3.5 Transmission delay: The proposed Global
Online Freedom Act
Legislative attempts to exert some control over
business operations in countries with internet re-
strictions have remained in limbo in Washington.
The U.S. has not hesitated to exercise jurisdiction
over citizens for conduct abroad. For instance,
the Foreign Corrupt Practices Act provides severe
penalties for paying commercial bribes.
123
The
Comprehensive Anti-Apartheid Act of 1986
banned all new U.S. trade and investment in
South Africa and motivated Europe and Japan to
impose similar sanctions.
124
To date, there is no
parallel legislation that relates to the internet.
The most important move towards binding
U.S. legislation that would cover the conduct
of U.S. internet companies operating abroad is
the Global Online Freedom Act. Representative
Christopher Smith frst introduced the Act in
2006, when it drew limited traction. In 2011, he
introduced a revised version and at the time of
writing is expected to introduce a further itera-
tion of the bill.
The bill aims to prevent United States businesses
from cooperating with repressive governments in
transforming the internet into a tool of censor-
ship and surveillance, to fulfll the responsibility
of the United States Government to promote
freedom of expression on the internet, to restore
public confdence in the integrity of United States
businesses, and for other purposes.
125
The bill
emphasizes that to the extent that a United
States business empowers or assists an authori-
tarian foreign government in restricting online
access to identifed U.S. government websites,
U.S. government-supported websites, or to
identify individual internet users, such business
is deemed to be working contrary to the foreign
policy interests of the United States.
126

The current bill empowers the Secretary of State
to designate after consultation with the Secre-
tary of Commerce internet-restricting coun-
tries, i.e. those whose governments are directly
or indirectly responsible for a systematic pattern
of substantial restrictions of internet freedom
during any part of the preceding 1-year pe-
riod.
127
Other key provisions envisioned include
annual country reports on human rights prac-
tices, reports on trade-related issues that arise due
to government censorship or disruption of the
internet, protecting U.S. content providers from
23
malicious attacks, and measures to require U.S.
listed companies to disclose to the Securities and
Exchange Commission their human rights due
diligence with respect to policies on the collection
and sharing of personally identifable informa-
tion, information on blocking, or restriction of
information online.
Finally, an interesting provision concerns export
controls for internet-restricting countries, with
the current drafted intention being that if a U.S.
company is exporting hardware or software that
can be used for surveillance, tracking, blocking
etc. to an internet-restricting country, then a red
fag is raised with respect to exports to all end
users in that country. All exports to law-enforce-
ment end users in internet-restricting countries
will require an export license, with a presumption
of denial for the license. It is expected that this
section will be amended to provide more specifc
details.
128

The Act has not been fnalized. It does however
appear to fall neatly in line with the Obama
administrations policy. Its journey has thus far
been and remains uncertain. Discussions con-
cerning the provisions of the bill and its potential
implementation will be enormously worthwhile
in encouraging dialogue on these issues. It will be
interesting to see if Secretary Clinton, President
Obama, and Congressional leaders eventually
get behind the bill and secure its passage.
129
If a
promising version of the bill is passed, it will be a
step in the right direction.
**
SecDev Analytics 24
Part 4: What is to be done: To new beginnings and new behavior
A new approach is needed. The U.S. government
and U.S. corporations have an opportunity to
lead the world by putting into practice legislation
and policies that ensure that businesses operat-
ing abroad are accountable both to their foreign
customers and to their home country. There are
no simple or straightforward solutions. But
more of the same will incur damage beyond the
reputations of the U.S. corporations or the U.S.
government. It risks the future of cyberspace as
an enabler of human development and economic
growth.
This report has attempted to outline some of the
complexities involved in balancing ethics and
profts. It also fags some of the possibilities that
can be found in law and self-regulation. The
research is not suffcient to map out a compre-
hensive strategy. But it is possible to offer
preliminary recommendations:
Formal legislation is not the only answer.
Better behavior when faced with ethical
challenges ultimately stems from a shift of
ethos and attitude by corporations. But to
date, voluntary codes have not served to
change behavior. In the absence of any
honest change of heart, formal commit-
ments would at least provide a sense of
direction. Compromising values has caused
unwanted and perhaps unexpected damage
to the reputations of some of the largest and
most successful companies in the world.
China is a market that presents substantial
opportunities but companies must not
continue to be unguardedly opportunistic.
Consistency with principles. The United
States needs to adhere to its image as a
proactive nation founded on valuing
freedom instead of one whose greatest
exports transgress U.S. commitments under
domestic U.S. law, and contravene U.S.
commitments to UN covenants and
conventions. This does not mean continu-
ally forcing the imposition of values: it is
unrealistic and not the place of the U.S. or
any other country to directly force changes
in Chinese law. It means ensuring that
corporations operate within sensible
boundaries. Such boundaries can be drawn
by legally enforceable, binding, specifc
commitments and it is here that policy
makers, legislators, and corporate leaders
have a chance to step up and embrace the
challenge.
The commons of cyberspace needs to be
preserved. The emergence of the internet
and its expansion to encompass almost
two-thirds of humanity has led to a parallel
expansion in human choice. The worlds
knowledge is now accessible on-line and
nearly everywhere. New industries and
sources of prosperity have been created.
Political lines have been redrawn and
redefned. People have become empowered.
Their local voices can be heard across the
globe in real-time. This is now at risk unless
the emerging norms that accept the
legitimacy of national censorship regimes
and other controls that attempt to restrict
the internet are challenged.
25
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8 Although China Telecom has announced that it will switch
on its fourth terrestrial cable linking Europe and Asia in the
next few months, indicating that connections may have
multiplied. See: Wood, Nick. 2011.China Telecom to light
up fourth Europe-Asia fber route by end-2011. Total Teleco.
31 August 2011.
9 Fallows, James. 2008. The connection has been reset.
The Atlantic. March 2008.
2006.
11 Details are found in the case-study, in Part 2.5 below.
Source is: Terry Alberstein, a senior director of corporate
communications at Cisco. From Stirland, Sarah Lai. 2008.
Cisco leak: Great Firewall of China was a chance to sell
more routers. Wired. 20 May 2008.
12 Goldsmith, Jack and Wu, Tim. 2008. Who Controls the
Internet? Oxford: Oxford University Press. supra, p. 93. They
present a concise summary of Chinas actions.
13 OpenNet Initiative. Country profle: China. http://opennet.
net/countries/china (accessed September 2011).
14 Hu, Marty. 2011.The Great Firewall: a technical
perspective. Torfox. 30 May 2011. http://www-cs-faculty.
stanford.edu/~eroberts//cs181/projects/2010-11/FreedomO-
fInformationChina/great-frewall-technical-perspective/index.
html (accessed September 2011).
15 OpenNet Initiative. 2009. Chinas Green Dam: The
Implications of Government Control Encroaching on the
Home PC. OpenNet Initiative Bulletin. 12 June 2009. http://
opennet.net/sites/opennet.net/fles/GreenDam_bulletin.pdf
(accessed September 2011).
16 Chao, Loretta and Dean, Jason. 2009. Chinese delay
plan for censor software. Wall Street Journal. 1 July 2009.
http://online.wsj.com/article/SB124636491863372821.html
New York University of International Law and Politics.38:
1-2. supra, p. 8.
18 Harwit, Eric and Clark, Duncan. 2001. Shaping the
Internet in China: Evolution of Political Control over Network
Endnotes
SecDev Analytics 26
Infrastructure and Content. Asian Survey 41:3. May/June
2011. Also see: Human Rights Watch. 2006. Race to the
bottom: Corporate complicity in Chinese Internet Censor-
ship. 10 August 2006. http://www.unhcr.org/refworld/cou
ntry,,,COUNTRYREP,CHN,,45cb138f2,0.html (accessed
September 2011).
19 Internet Society of China. 2002. Public Pledge of Self-
Regulation and Professional Ethics for China Internet Indus-
try. 19 July 2002. http://www.isc.org.cn/20020417/ca102762.
htm (accessed September 2011).
20 Internet Society of China. 2007. Convention on Blog Ser-
vice Discipline. http://www.isc.org.cn/hyzl/hyzl/listinfo-15609.
21 Ibid
22 Buckley, Chris. 2011. China state paper urges Internet
rethink to gag foes. Reuters. 2 September 2011.
23 MacKinnon, Rebecca. 2009. Chinas Censorship 2.0:
How companies censor bloggers. First Monday 14:2. 25
January 2009. http://www.uic.edu/htbin/cgiwrap/bin/ojs/
index.php/fm/article/view/2378/2089 (accessed September
2011).
24 Chinese Human Rights Defender. How does government
monitor our online communication? (Zhengfu Ruhe Jiankong
Women De Dianzi Wangluo Tongxu). http://crd-net.org/
Article/Class1/200803/20080324093843_8168.html (ac-
cessed September 2011).
25 Human Rights Watch. 2006. Race to the bottom: Corpo-
rate complicity in Chinese Internet Censorship. 10 August
2006. http://www.unhcr.org/refworld/country,,,COUNTRYRE
P,CHN,,45cb138f2,0.html (accessed September 2011).
26 Information Offce of the State Council combined with the
Ministry of Information Industry. 2005. Provisions on News
Information Services. China IT Law. http://www.china.org.
cn/business/2010-01/21/content_19281869.htm (accessed
September 2011). Article 19 of the Provisions on News In-
formation Services includes: (1) violating the basic principles
as they are confrmed in the Constitution; (2) jeopardizing
the security of the nation, divulging state secrets, subvert-
ing of the national regime or jeopardizing the integrity of the
nations unity; (3) harming the honor or the interests of the
nation; (4) inciting hatred against peoples, racism against
peoples, or disrupting the solidarity of peoples; (5) disrupt-
ing national policies on religion, propagating evil cults and
feudal superstitions; (6) spreading rumors, disturbing social
order, or disrupting social stability; (7) spreading obscenity,
pornography, gambling, violence, terror, or abetting the com-
mission of a crime; (8) insulting or defaming third parties,
infringing on the legal rights and interests of third parties; (9)
inciting illegal assemblies, associations, marches, demon-
strations, or gatherings that disturb social order; (10) con-
ducting activities in the name of an illegal civil organization;
and (11) any other content prohibited by law or rules.
27 See Constitution of the Peoples Republic of China,
Articles 35, 40, and 47. Also relevant is Article 37, which pro-
tects against unlawful searches, and Article 33, which states
that the state respects and preserves human rights.
28 Human Rights in China. 2010. China Sharpens Legal
Weapons for Information Control. 29 April 2010. http://www.
hrichina.org/content/394 (accessed September 2011).
New York University of International Law and Politics 38:
1-2. supra, p. 18; citing Article 7 of Peoples Republic of
China State Security Bureau. 2006. Administration of the
Maintenance of Secrets in the International Networking
of Computer Information Systems Provisions. China Law
Practice. 25 January 2000, [hereinafter State Secrecy Provi-
sions]. http://www.chinalawandpractice.com/Article/1694656/
Search/Administration-of-the-Maintenance-of-Secrets-in-the.
html?Keywords=Administration+of+the+Maintenance+of+S
ecrets+in+the+International+Networking+of+Computer+In
formation+Systems+Provisions (accessed September 2011).
30 State Secrecy Provisions, Articles 3 and 10. Although
not directly pertinent to the current study, this all-embracing
scheme provides an important factual precedent for a prima
facie case to hold the government legally responsible for
several incidents of cyber piracy a truly 21st century prob-
lem - despite government claims that these are purely the
actions of non-state actors over whom it has no control.
31 Buckley, Chris. 2011. China state paper urges Internet
rethink to gag foes. Reuters. 2 September 2011.
32 In 2006 executive chairman Eric Schmidt declared that:
The prize is a world in which every human being starts life
with the same access to information, the same opportunities
to learn and the same power to communicate. I believe that
is worth fghting for. See: Schmidt, Eric. 2006. Let more of
the world access the Internet. The Financial Times. 21 May
2006.
33 Levy, Steven. 2011. Inside Googles China misfor-
tune. Fortune. 15 April 2011. http://tech.fortune.cnn.
com/2011/04/15/googles-ordeal-in-china (accessed Septem-
ber 2011).
34 OpenNet Initiative. 2006. Google.cn Filtering: How It
Works. 25 January 2006. http://www.opennetinitiative.net/
blog/?p=87 (accessed September 2011) and, Thompson,
Clive. 2006. Googles China Problem (and Chinas Google
Problem). The New York Times. 23 April 2006 and Zeller,
Jr., Tom. Web frms are grilled on dealings in China. The
New York Times. 16 February 2006.
35 Levy, Steven. 2011. In the Plex: How Google Thinks,
Works and Shapes Our Lives. New York: Simon and Schus-
ter. supra p.306.
27
2006.
37 Sergey Brin on Chinas Google Decision. TED Blog. 24
February 2010. http://blog.ted.com/2010/02/24/our_focus_
has_b (accessed September 2011).
38 Villeneuve, Nart. 2008. Search Monitor Project: Toward a
Measure of Transparency. Citizen Lab Occasional Paper #1
http://www.nartv.org/projects/search_monitor/searchmonitor.
pdf (accessed September 2011).
39 OpenNet Initiative. China. http://opennet.net/research/
profles/china-including-hong-kong (accessed September
2011).
2006.
41 Zeller Jr., Tom. 2006. Web frms are grilled on dealings
in China. The New York Times. 16 February 2006.
2006.
43 Dickie, Mure. 2008. Google faces lawsuit for blocking
name. The Financial Times. 1 February 2008.
2006.
45 Sergey Brin on Chinas Google Decision. TED Blog.
24 February 2010. http://blog.ted.com/2010/02/24/our_fo-
cus_has_b (accessed September 2011).
46 Davidson, Alan. 2010. Testifying before the Congressio-
nal-Executive Commission on China. Google Public Policy
Blog. 24 March 2010. http://googlepublicpolicy.blogspot.
com/2010/03/testifying-before-congressional.html (accessed
September 2011).
47 Google hardly stood alone. GoDaddy.com, the worlds
largest Internet domain registrar and manager of 27,000
Chinese domain names, also decided to pull out of China in
response to government interference and privacy concerns.
With more than 400 million users worldwide, Facebook de-
clined to enter the Chinese market and remains blocked by
the Great Firewall. It runs a Chinese version from outside of
China. Twitter has resisted giving any control to China. See
Johnson, Bobie, Branigan, Tania and Nasaw, Daniel. Were
staying in China, says Microsoft, as free speech row with
Google grows. The Guardian. 25 March 2010. http://www.
guardian.co.uk/technology/2010/mar/25/china-microsoft-
free-speech-google (accessed September 2011).
48 Helft, Miguel and Barboza, David. Google Shuts China
Site in Dispute over Censorship. The New York Times. 22
March 2010.
49 Barboza, David. 2011. Microsoft to Partner with Chinas
Leading Search Engine. The New York Times. 4 July 2011.
50 Thinesen, Erica. 2011. Chinese Government Renews
Googles Internet Content Provider License. IT ProPortal. 7
September 2011. http://www.itproportal.com/2011/09/07/chi-
nese-government-renews-googles-internet-content-provider-
license/#ixzz1XwIvqz4o (accessed September 2011).
51 In response to Notice of Evidence Collection from the
Beijing State Security Bureau, Yahoo! employees handed
over Shi Taos email account registration information for
huoyan-1989@yahoo.com.cn, all login times, corresponding
IP addresses, and relevant email content from February 22,
2004. See: Mackinnon, Rebecca. 2007. Shi Tao, Yahoo!
and lessons for corporate social responsibility. 30 December
2007. http://rconversation.blogs.com/YahooShiTaoLessons.
52 Mackinnon, Rebecca. 2007. Shi Tao, Yahoo! and lessons
for corporate social responsibility. 30 December 2007. http://
rconversation.blogs.com/YahooShiTaoLessons.pdf (ac-
53 Lantos, Tom. 2007. Statement of Chairman Lantos at
hearing, Yahoo! Incs provision of false information to Con-
gress. House Committee on Foreign Affairs. 6 November
2007. http://foreignaffairs.house.gov/110/lantos110607.htm
54 28 U.S.C.A. 1350.
55 Perez, Juan Carlos. 2007. Yahoo Settles Chinese Dis-
sident Lawsuit. PCWorld. 14 November 2007. http://www.
pcworld.com/article/139619/yahoo_settles_chinese_dissi-
dent_lawsuit.html (accessed September 2011).
56 Mackinnon, Rebecca. 2007. Shi Tao, Yahoo! and lessons
for corporate social responsibility. 30 December 2007. http://
rconversation.blogs.com/YahooShiTaoLessons.pdf (ac-
57 For instance, in 2002, Microsoft gave millions to software
engineering schools in fve universities. They also worked
with the Ministry of Education to create curriculums and
outft computer laboratories. In an effort to combat software
piracy, Microsoft announced funding for training programs in
the eastern city of Hangzhou. Microsoft also donated their
operating system, Windows, to the state-run China Telecom
and Chinas State Economic and Trade Commission as part
of a marketing strategy. See: Microsoft. 2006. Microsoft
in China: Microsofts Strategy and Goal in the Chinese
Market. http://www.microsoft.com/presspass/presskits/Chi-
naPresident/documents/ChinaBG.pdf; and Magnier, Mark
and Menn, Joseph. 2005. As China Censors the Internet,
Money Talks. Los Angeles Times. 17 June 2005. http://arti-
cles.latimes.com/2005/jun/17/world/fg-censor17/2 (accessed
September 2011).
SecDev Analytics 28
2006. http://www.unhcr.org/refworld/country,,,COUNTRYR
EP,CHN,,45cb138f2,0.html. (accessed September 2011).
Funded by the Shanghai City Government, SAIL is a venture
fund led by Jiang Mianheng, son of former PRC president
Jiang Zemin. See also Cheng, Allen T. 2001. Shanghais
King of I.T.. Asiaweek.com. 9 February 2001, and Lee,
Melanie and Wong, Jacqueline. 2011. Chinas Renren signs
agreement with Microsoft. Reuters. 24 August 2011. http://
www.reuters.com/article/2011/08/24/us-renn-msn-idUS-
TRE77N0UG20110824 (accessed September 2011).
59 Pan, Philip P. 2006. Bloggers Who Pursue Change
Confront Fear and Mistrust. Washington Post. 21 Febru-
ary 2006. http://www.washingtonpost.com/wp-dyn/content/
article/2006/02/20/AR2006022001304.html (accessed
September 2011).
2006. http://www.unhcr.org/refworld/country,,,COUNTRYREP
,CHN,,45cb138f2,0.html (accessed September 2011).
61 Ibid
62 Fried, Ina. 2006. Microsoft clarifes policy on cesor-
ing blogs. CNET News. 31 January 2006, http://
news.cnet.com/Microsoft-clarifes-policy-on-censoring-
blogs/2100-1028_3-6033343.html (accessed Septem-
ber 2011) and, Barboza, David. Microsoft to Partner
With Chinas Leading Search Engine. The New York
Times. 4 July 2011. http://www.nytimes.com/2011/07/05/
technology/05microsoft.html (accessed September 2011)
and,
Fletcher, Owen . 2011. Microsoft to Provide English Search
Results on Baidu. The Wall Street Journal. 4 July 2011.
http://online.wsj.com/article/BT-CO-20110704-701613.html
63 Barboza, David. 2011. Microsoft to Partner With Chinas
Leading Search Engine. The New York Times. 4 July 2011,
http://www.nytimes.com/2011/07/05/technology/05microsoft.
64 Fletcher, Owen. 2011. Microsoft to Provide English
Search Results on Baidu. The Wall Street Journal. 4 July
2011. http://online.wsj.com/article/BT-CO-20110704-701613.
65 Barboza, David. 2011. Microsoft to Partner With Chinas
Leading Search Engine. The New York Times. 4 July 2011,
http://www.nytimes.com/2011/07/05/technology/05microsoft.
66 Begany, Tim. 2011. A stock thats up 50% in THIS
market. Street Authority. 12 September 2011. http://www.
streetauthority.com/international-investing/stock-thats-50-
market-458563 (accessed September 2011).
67 Levy, Steven. 2011. In the Plex: How Google Thinks,
Works and Shapes Our Lives. New York: Simon and Schus-
ter. supra p.298.
68 Lee, Melanie and Wong, Jacqueline. 2011. Chinas
Renren signs agreement with Microsoft. Reuters. 24 August
2011. http://www.reuters.com/article/2011/08/24/us-renn-
msn-idUSTRE77N0UG20110824 (accessed September
2011).
69 Microsoft News Center. Microsoft Formalizes Cross-
Platform Collaboration With CS2C in China. 22 August 2011.
http://www.microsoft.com/presspass/press/2011/aug11/08-
22CS2CPR.mspx (accessed September 2011).
70 Yun-Hee Kim. Microsoft to Add Staff in China. The Wall
Street Journal. 22 February 2011. http://online.wsj.com/ar-
ticle/SB10001424052748703529004576160013344234354.
71 Mashland, Alison. 2006. Skype says texts are cen-
sored by China. The Financial Times. 18 April 2006.
http://www.ft.com/intl/cms/s/2/875630d4-cef9-11da-925d-
0000779e2340.html (accessed September 2011).
72 Skype. 2005. TOM Online, Skype Announce Joint
Venture in China. 5 September 2005, http://about.skype.
com/2005/09/tom_online_skype_announce_join.html (ac-
73 Ibid
74 Aughton, Simon. 2006. Skype comes clean over China
censor. PCPro. 19 April 2006. http://www.pcpro.co.uk/
news/86146/skype-comes-clean-over-china-censor (ac-
75 See: Silverman, Josh. 2008. Skype President Ad-
dresses Chinese Privacy Breach. The Big Blog. October
2008. http://blogs.skype.com/en/2008/10/skype_presi-
dent_addresses_chin.html (accessed September 2011); and
Skype. 2006. Comments about Skype chat text fltering in
China. The Big Blog. 19 April 2006. http://blogs.skype.com/
en/2006/04/comments_about_skype_chat_text.html (ac-
76 Villeneuve, Nart. 2008. Breaching Trust: An analysis of
surveillance and security practices on Chinas TOM-Skype
platform. Information Warfare Monitor and ONI Asia Joint
Report. http://www.nartv.org/mirror/breachingtrust.pdf (ac-
77 Ibid
78 CNN. 2011.Skype illegal in China? Not so fast. CNN
GO. 4 January 2011. http://www.cnngo.com/shanghai/
life/skype-illegal-china-well-not-so-fast-617634 (accessed
September 2011).
29
79 Skype says it is operational in China despite reports
of crackdown by the government. Asia Pacifc Telecom. 1
February 2011.
80 Presumably Skypes position solidifed in May 2011,
when Microsoft acquired Skype.
81 Walton, Greg. 2001. Chinas Golden Shield. Interna-
tional Center for Human Rights and Democratic Develop-
ment. http://www.ichrdd.ca/site/_PDF/publications/globaliza-
tion/CGS_ENG.PDF (accessed September 2011).
82 Cisco Systems. 2002. Overview of the Public Security
Sector. http://www.wired.com/images_blogs/threatlevel/fles/
cisco_presentation.pdf (accessed September 2011). supra
Slide 57.
83 Cisco Systems. 2002. Overview of the Public Security
Sector. http://www.wired.com/images_blogs/threatlevel/fles/
cisco_presentation.pdf (accessed September 2011). supra
slide 58.
84 Gutmann, Ethan. 2004. Losing the New China: A Story of
American Commerce, Desire, and Betrayal. San Francisco:
Encounter Books.
85 Gutmann, Ethan. 2006. Aiding the Policenet. Founda-
tion for Defense of Democracies. http://www.defenddemoc-
racy.org/index.php?option=com_content&task=view&id=
11776837&Itemid=347 (accessed September 2011) and
Bambauer, Derek. 2006. Cool Tools for Tyrants. Legal Af-
fairs. January-February 2006 . http://legalaffairs.org/issues/
January-February-2006/feature_bambauer_janfeb06.msp
86 Gutmann, Ethan. 2004. Losing the New China: A Story of
American Commerce, Desire, and Betrayal. San Francisco:
Encounter Books, 2004.
87 Ibid
88 Regan, Keith. 2007. Ciscos China Investment Mush-
rooms to 16 Billion. Ecommerce Times. 1 November 2007.
http://www.ecommercetimes.com/story/Ciscos-China-
Investment-Mushrooms-to-16-Billion-60114.html (accessed
September 2011).
89 Ibid
90 Chao, Loretta and Clark, Don. 2011. Cisco Poised to
Help China Keep an Eye on its Citizens. The Wall Street
Journal. 5 July 2011. http://online.wsj.com/article/SB100014
24052702304778304576377141077267316.html (accessed
September 2011).
91 Ibid
92 Rennack, Dianne E. 2006. China: Economic Sanctions.
CRS Report for Congress. Order Code RL31910. http://
www.fas.org/sgp/crs/row/RL31910.pdf (accessed Septem-
ber 2011).
93 Reitman, Reiny. 2011.Cisco and Abuses of Human
Rights in China: Part 1. Electronic Frontier Foundation. 22
August 2011. https://www.eff.org/deeplinks/2011/08/cisco-
and-abuses-human-rights-china-part-1. (accessed Septem-
ber 2011).
94 Ibid. Named plaintiffs are Du Daobin, Zhou Yuanzhi, and
Liu Xianbin.
95 Ibid
96 Human Rights Law Foundation. 2011. Cisco Complaint.
19 May 2011. http://www.docstoc.com/docs/80369767/
Cisco-Complaint (accessed September 2011).
97 For instance, cell phone provider Verizon has an explicit
Human Rights Statement which includes protecting cus-
tomer privacy by notifying customers about how their data is
being used and giving them choice and control over the use
of their private information. The full statement is available
online at http://responsibility.verizon.com/home/approach/
human-rights . Further examples of human rights policies
from businesses are available at http://www.business-hu-
manrights.org/Documents/Policies
98 Clinton, Hillary. 2010. Remarks on Internet Freedom.
U.S. Department of State. 21 January 2010. http://www.
state.gov/secretary/rm/2010/01/135519.htm (accessed
September 2011).
99 Ibid
100 Clinton, Hillary. 2011. Internet Rights and Wrongs:
Choices and Challenges in a Networked World. U.S. De-
partment of State. 15 February 2011. http://www.state.gov/
secretary/rm/2011/02/156619.htm (accessed September
2011).
101 The White House. May 2011. International Strategy
for Cyberspace: Prosperity, Security and Openness in a
Networked World. http://www.whitehouse.gov/sites/default/
fles/rss_viewer/international_strategy_for_cyberspace.pdf
102 Global Network Initiative. Global Network Initiative
FAQ. http://www.globalnetworkinitiative.org/faq/index.
php#48 (accessed September 2011).
103 Global Network Initiative. 2010. Inaugural Report 2010:
Our work. Our vision. Our progress. http://www.globalnet-
workinitiative.org/cms/uploads/1/GNI_annual_report_2010.
104 Alien Tort Claims Act (ATCA), 28 U.S.C. 1350 (2006)
105 Torture Victim Protection Act of 1991, Pub. L. No.
102-256, 106 Stat. 73 (1992) (codifed at 28 U.S.C. 1350
(1994))
SecDev Analytics 30
106 Self-executing means that ratifcation creates no
private right of action with the U.S. judicial system unless
Congress acts to implement agreement with the legislation.
107 Torture Victim Protection Act of 1991, Pub. L. No.
102-256, 106 Stat. 73 (1992) (codifed at 28 U.S.C. 1350
(1994))
108 The Universal Declaration of Human Rights was ad-
opted by the UN General Assembly on December 10, 1948,
at the Palais de Chaillot, Paris. Article 12 states that no one
shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his
honor and reputation. Everyone has the right to protection
of the law against such interference or attacks. Article 19
states: Everyone has the right to freedom of opinion and
expression; this right to seek, receive and impart information
and ideas through any media, regardless of frontiers. Avail-
able online at: United Nations. 1948. The Universal Declara-
tion of Human Rights. http://www.un.org/en/documents/udhr
109 United Nations. 1966. International Covenant on Civil
and Political Rights. http://www2.ohchr.org/english/law/ccpr.
htm (accessed September 2011). Adopted December 16,
1966 by General Assembly Resolution 2200A (XXI). It came
into force on March 23, 1976. By December 2010 the Cov-
enant had 72 signatories and 167 parties. China has signed
but not ratifed.
110 United Nations. 1976. International Covenant on Eco-
nomic, Social and Cultural Rights. http://www2.ohchr.org/
english/law/cescr.htm (accessed September 2011). Adopted
by U.N. General Assembly Resolution 2200A (XXI). Entry
into force, January 3, 1976, in accordance with the provi-
sions of Article 27, requiring thirty-fve members to ratify or
accede to the Treaty. As of July 2011, the Covenant had 160
parties. Six more had signed but not ratifed. Certain nations
conditioned their signing, including China, as to labor rights,
and has not ratifed it.
111 United Nations. 2003. Norms on the Responsibilities of
transnational corporations and other business enterprises
with regards to human rights. Economic and Social Council.
26 August 2003. http://www.unhchr.ch/huridocda/huridoca.
nsf/(Symbol)/E.CN.4.Sub.2.2003.12.Rev.2.En. (accessed
September 2011).
112 United Nations. 2003. Commentary on the norms
on the Responsibilities of transnational corporations and
other business enterprises with regards to human rights.
Economic and Social Council. 26 August 2003. U.N. Doc. E/
CN.4/Sub.2/2003/38/Rev.2 The adoption is also mentioned
by Amnesty International on p4 of their 2004 report The UN
Human Rights Norms for Business: towards legal account-
ability
113 The First Optional Protocol to the International Cov-
enant on Civil and Political Rights establishes an individual
complaints mechanism through which individuals may
complain to the human rights Committee about violations to
the Covenant. It has 113 parties.
114 OSCE (Offce of the Representative on Freedom of
the Media). 2011. Freedom of Expression on the Internet:
Study of legal provisions and practices related to freedom of
expression, the free fow of information and media pluralism
on the Internet. http://www.osce.org/fom/80723 (accessed
September 2011).
115 Hussein, Abid. 1995. Report of the U.N. Special Rappor-
teur, Mr. Abid Hussein, pursuant to the Commission on Hu-
man Rights Resolution 1943/45, Reference E/CN.4/1995/32.
14 December 1995. supra para. 48; See also: Nolan, Jus-
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Corporate Responsibility. University of South New South
Wales Faculty of Law Research Series. http://law.bepress.
com/unswwps/frps08/art57 (accessed September 2011).
116 U.S. reservations, declarations, and understandings,
International Covenant on Civil and Political Rights, 138
Cong. Rec. S4781-01 (daily ed., April 2, 1992). University
of Manitoba Human Rights Library. http://www1.umn.edu/
humanrts/usdocs/civilres.html (accessed September 2011).
117 United Nations Global Compact. The Ten Principles.
http://www.unglobalcompact.org/AboutTheGC/TheTenPrin-
ciples/index.html (accessed September 2011).
118 United Nations Global Compact. Frequently Asked
Questions. http://www.unglobalcompact.org/AboutTheGC/
faq.html
119 Deva, Surya. 2007. Corporate Complicity in Internet
Censorship in China: Who Cares for the Global Compact
or the Global Online Freedom Act? George Washington
International Law Review 39:255-319.
120 Anderson, Nate. 2011. France attempts to civilize the
Internet; Internet fghts back. Ars technica. May 2011. http://
arstechnica.com/tech-policy/news/2011/05/france-attempts-
to-civilize-the-internet-internet-fghts-back.ars (accessed
September 2011).
121 Wintour, Patrick. 2011. Facebook founder Zuckerberg
tells G8 summit: dont regulate the web. The Guardian.
26 May 2011. http://www.guardian.co.uk/technology/2011/
may/26/facebook-google-internet-regulation-g8 (accessed
September 2011).
122 G8. 2011.Renewed Commitment for Freedom and
Democracy. G8 Declaration. 26-27 May 2011. http://www.
g20-g8.com/g8-g20/g8/english/live/news/renewed-com-
mitment-for-freedom-and-democracy.1314.html (accessed
September 2011).
31
123 Foreign Corrupt Practices Act of 1977, 15 U.S.C.A.
78dd-1 (1977).
124 Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C.A.
5001 (2002).
125 United States House of Representatives. 112th Con-
gress, 1st Session. H.R. 1389. Global Online Freedom Act
of 2011 [introduced in the House 6 April 2011]. http://www.
govtrack.us/congress/billtext.xpd?bill=h112-1389 (accessed
September 2011).
126 Ibid
127 Ibid
128 Ibid
129 The issue is not inherently partisan. Congressman
Smith is a Republican. Former Governor Mitt Romney,
a leading contender for the Republican nomination, has
recently taken a hard line on Chinese theft of intellectual
property and currency manipulation. Alexander Burns, Mitt
Romney brings China message to Ohio, Politico.com, July
27, 2011. Others, like former U.S. Ambassador to China
Jon Huntsman and also a candidate for the GOP nomina-
tion, have been more ambivalent. Huntsman recently joined
former Secretary of State Henry Kissinger is calling for an
agreement to restrict cyber attacks and designate some
areas as off-limits to hacking. Neither addressed the issues
of freedom of speech or privacy, or Chinas policy of extort-
ing technology transfers as a price for doing business in the
country. See Kissinger, Huntsman: U.S., China need cyber
dtente, Reuters, June 14, 2011. Huntsman is unlikely to
secure the Republican nomination but there is a quiet move
afoot to position him as a third party candidate. House
Speaker John Boehner has spoken up, declaring that China
has a responsibility to do better at guaranteeing freedom
and dignity for its citizens and that the United States has a
responsibility to hold them to account. Boehner has not
finched from pressing his views directly to President Hu Jin-
tao, which he did in January during the Chinese Presidents
visit to Capitol Hill. See Julie Hirschfeld Davis, Boehner
Says China Has Responsibility to Do Better, Bloomberg
Business Week, January 20, 2011.
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Overview: Searching for guidance in Chinese cyberspace

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