Lawyers and legislators put pressure on globe-trotting tech firms
Jul 21st 2011 | from the print edition
ASK a human-rights campaigner in Beijing what hope of vindication is offered by China’s judicial system, and the likely response is a cynical shrug. America’s courts could provide a more interesting avenue—especially to those whose complaint is the use of information technology to restrict freedom.
In May and June human-rights lawyers in America filed two suits alleging that executives at Cisco Systems, a California-based tech firm, sold China’s government equipment customised to help track dissenters online. Only one of the plaintiffs is an American citizen; more than a dozen are Chinese. Cisco denies all wrongdoing.
Such jurisdictional jiggery-pokery is made possible in part by the Alien Tort Claims Act (ATCA), which lets foreigners bring alleged violations of international law before American courts. Oil companies, mining firms and banks have all been subject to ATCA litigation since the ancient law was unburied in the 1980s. But only in recent years has the act been used to target tech firms whose products, or user data, might have been used to trap activists. In the best-known case, in 2007, Yahoo! reached a settlement with representatives of two Chinese democracy campaigners who said the firm had given authorities information that had led to their arrest. Daniel Ward, a lawyer leading one of the suits against Cisco, thinks that similar cases could be brought against other firms.
The issue is getting hotter as Sino-American internet business expands, in both directions. American tech firms covet China’s huge market. On July 4th Microsoft confirmed that its Bing search engine will soon be powering English-language results for local users of Baidu, China’s censored search giant. Even firms with more modest horizons may find themselves dealing with regimes that closely control the internet. More and more governments are moving to restrict the flow of information online, according to Freedom House, a lobby group.
Meanwhile, the global reach of China’s own internet firms, many of them listed on American stock exchanges, is drawing legal challenges. Campaigners in New York have started a suit against Baidu, saying its censored search results violate their constitutional rights. The plaintiffs’ lawyer, Stephen Preziosi, insists the case be heard in an American court—Baidu sells advertising to American firms and aggressively protects its American trademark, he says.
Still, suits against Cisco or other high-tech players face an uncertain legal path. Last year an appeals court hearing another ATCA case said the statute could not be used to prosecute firms, creating a division among judges that only the Supreme Court can settle. Lawyers retort that even if ATCA use against firms is curbed, individual executives could still be targeted.
Some American politicians think clearer legislation would help. One long-mooted bill, the Global Online Freedom Act, would make the government keep a list of internet-restricting states. Under its latest revision, advanced in April by Chris Smith, a Republican congressman, firms would need to seek the approval of American authorities before passing user information to one of these regimes; search engines would have to reveal details of any content they are asked to block. Export controls on web-blocking technologies would also be reviewed.
The bill has struggled to gain support since it was floated in 2006. But it could be helpful to American firms, argues Cindy Cohn of the Electronic Freedom Foundation, a lobby group, because clear legislation at home would give ammunition to executives negotiating business terms with foreign authorities. “They could all point to the same rules,” she says.
Tech firms may hope that self-regulation will keep legislators at bay. The Global Network Initiative is a partnership between human-rights groups and three of the largest web firms (Google, Microsoft and Yahoo!). Set up in 2008, it creates guidelines for technology companies in internet-restricting countries. But the group has signed up no new members; notably absent is Facebook, which is said to be considering its own Chinese tie-up, possibly with Baidu. And apart from the courts, American firms will also have to keep an eye on the mood in the White House. Selling technology that can be used for web-censoring or web-monitoring sits uneasily with the Obama administration’s ever-louder support for “internet freedom”.