Censoring the Net

[David Farber <farber () central cis upenn edu>]

Date: Sat, 22 Apr 95 15:21:38 EDT
From: sbaker02 () reach com (Stewart Baker -- Steptoe ^ Johnson - Washington )
To: farber () central cis upenn edu




I enclose an expanded version of the piece I published recently
in the LA Times. I welcome comments.




CENSORING THE NET
by
Stewart A. Baker


        The received wisdom of the day is that global information
 networks will be a force for freedom, breaking down barriers
 to the flow of information even in closed societies.  More
and more, though, the conventional wisdom is looking like
wishful thinking.  True enough, China wasn't able to cut off
international faxes during the Tiananmen massacre.  And more
recently, Canada couldn't find a way to enforce a gag order
against the Internet during a sensational murder trial.


        But that's the short run.  In the long run, the global
net may have a far different effect.  For as foreign governments
come to understand the power of the net, they will search quite
unapologetically for ways to control it.  And those methods are not
only easy to find, they could end up limiting the amount of
information available to Americans.


        How can foreign governments regulate the flow of data over
the net?  Well, one way is to just do it.  In fact, the European
Union recently approved and sent to the European Parliament a plan
to strictly limit communication, collation and use of information
about individuals.  This is to be done in the name of a good
cause--preventing corporate intrusions into individual privacy.
But to enforce the measure, the European Union has expressly
reserved the authority to blockade all exports of personal data
to countries that don't have "adequate" privacy protection.


        This vague standard is backed by a potent threat. If the
US and its companies don't dance to the European tune, American
multinationals could be trapped by their own investment in
productivity-enhancing networks. If, say, General Motors provides
customer data to the wrong sort of company or without proper
notice to its customers or to European governments, GM executives in
Detroit would find themselves cut off from the company's own data
about, say, its German customers' purchasing habits.


        It's hard to believe the Europeans won't use this massive
leverage from time to time to influence the kinds of information
that American multinationals put on their networks. Even unused,
Europe's leverage itself shows that the data highway
runs both ways--and that foreign governments can use our
commercial dependence on information networks to restrict what
travels on that highway.


        Less friendly governments will find other ways to limit
the flow of information--and in less appealing causes.  Singapore,
for one, has discovered that the threat of a defamation lawsuit
can turn even the lions of the American media into lambs.


        Look what happened when a Singapore professor suggested
in the International Herald Tribune that "a compliant judiciary"
allows some Asian governments to use lawsuits as a way to punish
dissent.  As if to prove the point, Singapore authorities promptly
prepared to sue him.  So what if he hadn't actually mentioned
Singapore?  The police knew what he meant; they produced a list
 of a dozen opposition figures the authorities had sued of late.
 "Of course you've libelled Singapore; what other country has
such a record?" one imagines them asking triumphantly in a moment
worthy of Saturday Night Live (when it was good).


        But the media giants who do business in Singapore didn't
give this self-parody the horselaugh it deserved.  The Herald
Tribune--though it is owned by two great First Amendment champions,
the New York Times and the Washington Post--nearly tripped over
itself trying to appease Singapore's government.  It apologized
"unreservedly," disavowing even the suggestion that Singapore
courts might rule for the government in such cases other than
on the merits:  "This was not our intent and we do not associate
ourselves with any such view which we accept would be unfounded."


        Anyone who believes that this grovelling lawyer's prose
expresses the real views of the publisher deserves, well, to read
Singapore newspapers.  But it is equally unlikely that the
publisher will knowingly print another story that displeases
 Singapore.  And what the Herald Tribune doesn't print in
Singapore, it doesn't print anywhere. So don't laugh too soon
at those poor benighted readers of Singapore papers.  Because
whether you open up the Herald Tribune in Paris or Tokyo or
Washington, you still won't read any more on its op-ed page
than Singapore lets its papers say.


        Let's take another example--Rupert Murdoch and China.
In 1993, Murdoch was an ardent exponent of the conventional
wisdom. Technology like his direct-broadcast satellites would,
he bragged, soon be "galloping over the old regulatory machinery,"
allowing "information-hungry residents of many closed societies to
by-pass state-controlled television.'


        In the resulting contest between new information technology
 and closed societies, score one for closed societies.  "They say
 it's a cowardly way," Murdoch admitted, "but we said in order to
get in there and get accepted, we'll cut the BBC out."


        In fact, score two for closed societies.  Murdoch didn't
just cut the BBC out of China.  He cut it out of his satellite's
 entire East Asia footprint, leaving Taiwan and Hong Kong viewers
limited to programming that's acceptable to Beijing.


          Why are so many persuaded more by Murdoch's talk about
technology's natural liberating force than by his deeds?  Probably
it's because our views are powerfully shaped by experiences with
the Internet--the most comprehensive network in place today.


        The Internet is boisterously anarchic and proud of it,
profoundly resistant to regulation of all sorts.  But this
it took lots of government money to build the rudimentary
global network we have today, and it will take much more
investment to give that network the speed and capacity and content
that consumers will demand.


          The private companies that make those investments will
have no more immunity from commercial and legal pressure than
Rupert Murdoch or the Washington Post and the New York Times.
On-line service providers such as Prodigy and Compuserve have
already been sued in this country for allegedly libelous statements
distributed on their networks.


        One may hope that American courts and policymakers will
see the folly of requiring on-line services to censor their
subscribers.  But as these services expand abroad, what will stop
foreign governments from regulating their content, both directly
and indirectly?  And, since the net is a seamless whole, what will
prevent such censorship from limiting our own access to information?


        I don't know.


        It's uncomfortable not to have the answers. But what's
worse is my sense that no one--in the US government or in business
and civil liberties groups--has even begun to ask the questions.


-----------------
 Mr. Baker, former General Counsel of the National Security Agency,
has an international and technology practice at Steptoe & Johnson
in Washington, DC.








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