Google, China, Hillary Clinton and the filtered Internet

(First published on IT World Canada blog)

By now you will have read many articles derived from the statements made by David Drummond, SVP, Corporate Development and Chief Legal Officer atGoogle about China.

The primary issue that Google was bringing up was a simple and not politically hot one. Companies need to know that the government of countries they are trying to do business in will have laws and enforce them against those who attack the physical or virtual infrastructure of these businesses. Whether the people who were hacking Google’s computers from China were doing so under the authority or encouragement of the Chinese government is secondary to the fact that the Chinese government and police were notaiding to stop the attacks and bring the attackers to justice.

Many of the comments and articles about this incident suggested Google was trying to protect online free speech. I do not buy that argument in this case. Google filters search results on behalf of many governments, including western governments such as the United States. Whether what these filters are monitoring and disallowing is censorship or something else is a political discussion, not a technological one. The technologies that implement these filters are neutral to these highly controversial political debates.

Google will also release the personal information of Google users demanded by these governments,including under court orders in western countries.

For discussing the politics of the situation, I can think of no better reference than the speech from January 21’st by USA Secretary of State Hillary Rodham Clinton’s so-called “Remarks on Internet Freedom” (transcript).

She spoke about the Google incident, saying “The most recent situation involving Google has attracted a great deal of interest. And we look to the Chinese authorities to conduct a thorough review of the cyber intrusions that led Google to make its announcement. And we also look for that investigation and its results to be transparent.”

While the entire speech makes for an interesting listen or read, I believe two sections are the most telling of the overall discussion.

“On their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does. We stand for a single internet where all of humanity has equal access to knowledge and ideas.”

Note that she did not say unrestricted access, or even accountable and transparent access, just ”equal” access. Who should set the policy that is then imposed equally on “all humanity” is obvious in her mind.

“Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.”

Think about this for a moment. Ms. Clinton, and possibly the Obama administration as a whole, are suggesting that the infringement of patents, copyrights,trademarks and related exclusive rights are comparable to terrorist recruitments, and warrant extreme measures to stop.

This is consistent with US domestic and foreign policy given the law which most often affects the rules that an Internet inspection and filtering system will obey is Copyright. One only needs to read about the policy debates leading up to the mis-labeled Anti-Counterfeiting Trade Agreement (Start with the USA’s National Information Infrastructure, policy laundering through WIPO, and now forum shopping with ACTA) to know how important that controlling the Internet and the devices which can connect to the Internet is to the United States government.

The most visible technology policy from the US is to impose Internet inspection and filtering for communications networks, and to lock down devices and make it illegal for the owners to hold the keys. These policies are entirely incompatible with the promotion of “Internet Freedom” being alleged by Ms. Clinton.

The United States has arrested people for disagreeing with domestic government policy in the area of Copyright. We saw in 2001 with Dmitry Sklyarov that the US government had no problem arresting and detaining foreign citizens for activities which are not illegal or even considered immoral in the countries representing the vast majority of the worlds population.

Each country has their own goals with the rules they wish loaded into the monitoring and filtering of communications networks and rules imposed on communications devices.

In the case of China it is speech which they believe may destabilize the government. They consider religious speech to also be a threat, suggesting that religious speech is political speech. This is a country that has1/6’th of the world’s population, and yet is far more stable (and thus physically and otherwise safe to its citizens) than many countries only fractions of the population.

In the case of the United States it is speech that harms the commercial interests of a few corporations who have chosen a narrow set of business models. Clinton said that, “from an economic standpoint, there is no distinction between censoring political speech and commercial speech”, not recognizing the irony of her words. While the US developed by not honoring foreign copyright and patents, it wishes to disallow other countries from doing the same thing. The views expressed from some of the copyright maximalist have become so extreme and inclusive of so many harmless activities that it has elevated copyright infringement to be a form of political speech — a form of non-violent (and only questionably economically harmful) civil disobedience.

In case there is any confusion, I am not endorsing the policies of either the UnitedStates or of China in this area, and disagree strongly with both. I am making this comparison because I feel that of the two the UnitedStates has taken a strong pro-filtering policy based on the most insignificant of justifications. It makes it hard to believe that what is stated publicly are the reasons for their pro-filtering policy, and opens the door to considerable speculation about the actual motivations.

This is not to say that all speech should be made legal, but that it be a transparent judicial system (police, courts, legislators, etc) and not unaccountable rules hidden within technology that enforces any limits on speech.Unaccountable and non-transparent rules embedded within communications technology do not enforce laws, they replace them.

When put in what I consider to be the proper context, the politics of this speech by Clinton look real bad. I believe that before a representative of the USgovernment can make any statements about China’s manipulation of communications technology with a straight face that they need to clean up their own act. In the case of the USA that would include repealing the anti-circumvention aspects of the Digital Millennium Copyright Act, and enacting strong Network Neutrality legislation that ensures that any inspection and monitoring of communications networks have court oversight, and ultimately be transparent to citizens.

This action by the USA should include ceasing all negotiations of any treaties that would seek to impose anti-circumvention or communication network monitoring/inspection, such as ACTA. This would include working with governments to re-negotiate the 1996 WIPO treaties and any bilateral treaty or trade negotiations to remove these provisions as well.

Until this time the United States shouldn’t embarrass themselves by suggesting they have the high ground when it comes to Internet Freedom.

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Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada’s Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.