Great Firewall, Bad Legislation

With the election cycle upon us, it’s not surprising that American politicians have taken to criticizing China more directly on issues such as Burma, the trade deficit, environmental protection, and Internet censorship. The last issue has drawn extra attention of late, perhaps because human rights advocates in the Congressional Human Rights Caucus and populist anti-corporate voices have joined together to lash out at US companies for helping China to build the Great Firewall, China’s Internet censorship regime.

This week, Rebecca MacKinnon chronicled the latest legislation unveiled in the House, the Global Online Freedom Act of 2007 (henceforth GOFA). The GOFA would penalize American firms who “play along” with the Chinese censorship regime and require such things as keeping user information databases outside of China. MacKinnon wryly notes that a similar effort got nowhere last year, but I believe China is more high-profile than ever in voters’ minds, so the bill might actually see some floor action.

All the pity, then, that the focus of Reps. Smith, Lantos, and others in the Human Rights Caucus is misdirected. Even if the GOFA becomes law, the chances of it putting a dent in the Great Firewall are slim to none. It would, in theory, cripple the Chinese market operations of Cisco, Microsoft, Google and similar corporations, but it wouldn’t mean the end of the Great Firewall. In a way that mirrors the contributions of foreign manufacturers to Chinese industry, the expertise of many Western tech companies have certainly accelerated the development of Internet censorship in China, yet just as Chinese firms like Haier have emerged from joint venture arrangements to stand on their own, Chinese Internet censorship would continue to thrive without, say, the latest Cisco routers.

This doesn’t mean, however, that US firms like Yahoo should be free from criticism for their cooperation with Chinese authorities. On the contrary, they deserve to be publicly excoriated for every little kowtow they make towards the Powers That Be. (This goes double for companies that talk big about defending free expression in the US but do just the opposite in China. I’m looking at you, Google.) But we should nonetheless realize that punishing American firms for doing business in China will do little to enhance the freedom and opportunities of Chinese Internet users.

The alternative tactic of China critics is to make normative claims against China itself, to switch from saying “Cisco is evil for helping to build the Great Firewall” to saying “China is evil for having the Great Firewall in the first place.” Yet anyone who has studied modern China at all will immediately recognize that such criticisms fall on deaf ears, both in the halls of government in Beijing and, more unfortunately, on the streets and in the Internet cafes. Not only does the government bristle at what it deems “outside interference” in Chinese society, even the most cosmopolitan-minded Chinese may turn nationalistic when foreigners are seen lecturing to the Chinese government.

All of the above begs the question, what could the West in general and the US in particular do to weaken the Great Firewall? The answer may lie in seeing Chinese Internet censorship not as a moral issue but as an economic one. Let’s consider the following proposal.

In general, Westerners react to Chinese Internet censorship the way they react to book burnings: the government in question is deplored and the right to write and publish defended. Yet this analogy is weak on a number of fronts, not the least of which is that websites and especially web services represent a bundle of economic interests that are different than books. Moreover, while China is party to no conventions which call for political liberalization, the country has joined a number of agreements and organizations that call for economic liberalization, chief among them the World Trade Organization. And when considering the adverse economic effects from arbitrarily shutting out Western portals, search engines, and BSPs from the Chinese market, can we not call the Great Firewall a trade barrier?

I admit that I’m not the first to see Chinese Internet censorship as a form of crypto-protectionism. Much like a regime of infant industry protection, when Western web services are blocked, it forces Chinese users to turn to the Chinese competition. For instance, China’s recent blocking of Feedburner led the Chinese blogosphere to start using the Chinese provider Feedsky. When the blocks are lifted, the Chinese users are unlikely to return to the Western services unless, like Microsoft’s Hotmail, which has been blocked off and on, the service is significantly embedded into another service Chinese users depend on, such as Windows Live Messenger.

We can predict several of the ways the Chinese government would respond to such a challenge. First, they’d claim the right to protect Chinese citizens from indecent online content, and point to European censorship of Nazi ideology as a similarly justifiable form of censorship. Yet such a claim would invite intense scrutiny of what the Chinese government deems indecent. For example, is it reasonable to claim that Flickr or Youtube must be blocked to protect children from pornography when Chinese boys can use government-approved Baidu to look at Taiwanese actress Shu Qi’s famous parts? (Link NSFW, obviously.) Admittedly, hypocritical application of the law might at first seem a weak foundation for a WTO challenge, that didn’t stop Antigua from winning a WTO case against the US on similar grounds.

Secondly, they’d claim that any web provider can play ball in China if they follow the Chinese rules, so there’s no discrimination against foreign companies who cooperate. That said, while large companies have been asked to agree to censorship to continue doing business online in China, for the most part, China rarely publicizes its censorship requests or confirms the extent of its censorship. As some have noted, the entire enterprise of Chinese Internet censorship is murky and subjectively applied. Indeed, many services, such as Wikipedia, are just blocked outright, with no warning, while some sites continue to be accessible despite having materials long declared verboten in China. This lack of openness and evenhandedness means that the Great Firewall, in its current form, would be incompatible with the nondiscrimination and transparency requirements of the WTO.

In the end, moving the Chinese censorship debate from the halls of Congress to the fora of the World Trade Organization would not guarantee an end to the Great Firewall, but it would force the Chinese government to come clean about the extent and nature of its online censorship, which is in itself a victory. Furthermore, it provides an economic disincentive to other WTO member-countries currently thinking of building their own Great Firewalls. While an economy of China’s size could easily endure theoretical WTO sanctions, smaller developing countries would be hit hard and forced to weigh the costs and benefits of censorship. Finally, if successful, it would encourage Western political leaders to think creatively about how to encourage Chinese liberalization rather than to resort to the old moralizing discourse.