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A Dangerous Question

Reporters Without Borders, an organization that wants to protect and encourage free speech around the world, asks a big question: “Do Internet companies need to be regulated to ensure they respect free expression?”

There’s a surface appeal to this proposal. But it gives me the shivers. The idea is impractical, for one thing. And if we ask for regulation of speech — even under the principle of protecting it — we may be inviting the wrong kind of interference later on.

I have no brief for the companies that have all but forced such questions to the surface with their amoral behavior. The litany of officially sanctioned censorship grows longer every day — and U.S. technology companies complicity in repressive governments’ clampdowns on political speech is downright repulsive.

To its credit, Reporters Without Borders recognizes the matter’s complexity, and doesn’t make its suggestion lightly. Moreover, the organization has been trying to achieve its goals in other ways:

Reporters Without Borders has written to the chief executives of several corporations since 2002 proposing an exchange of ideas on this issue. None of our letters have been answered. We have also tried to alert the shareholders of these companies through investment funds. We presented a joint statement on 7 November in New York in which 25 investment firms managing some 21 billion dollars in assets undertook to monitor the activities of Internet companies operating in repressive countries.

Aside from Google, all the companies we approached refused to enter into a dialogue on this subject. We would therefore now like the American people’s elected representatives and the Department of State to formally take up this issue.

An actual law to address this should only become a “last resort,” the organization says, and this should be a two-step process:

Initially, a group of congressmen should formally ask Internet corporations to reach an agreement among themselves on a code of conduct that includes the recommendations we make at the end of this document. The companies would be urged to use the help of organisations specialised in freedom of expression in drafting the document. The request would include a deadline for the companies to submit their draft code of conduct to the congressmen concerned.

In the event that no satisfactory code of conduct has been drawn up when the deadline expires, or the proposed code has not been accepted by a sufficient number of representative companies, the congressmen would set about drafting a law that would aim to ensure that US companies respect freedom of expression when they are operating in repressive countries and elsewhere.

Which members of Congress does Reporters Without Borders propose to approach? The ones who might cause the technology execs to listen — in a Washington utterly dominated by people who favor business’ desires over just about all else — are the least likely to get involved. I doubt that Cisco’s John Chambers, whose company is one of the primary enablers of censorship, would offer more than a tiny bit of lip service if, say, Zoe Lofgren (a Democrat who represents San Jose, Cisco’s home town, in Congress) raised this issue.

Perhaps some Democrats, plus Republicans whose main motive would be to embarrass the Chinese regime, would come up with a “code of conduct” along these lines. The chances of its passage might be higher than we’d think, if it actually came to the floors of the House and Senate, because it would be difficult for incumbents to explain at election time why they favored censorship elsewhere but defended free speech (assuming they do) at home. But it would never get to the floor, for that reason.

Then there’s the question of how or whether such a law would work. I can’t begin to imagine how it would be enforced. How would we distinguish among the various cases that would be sure to arise, such as whether a site was taken down for political reasons or because it genuinely violated reasonable terms of service? Who wants that job, anyway? And what kind of penalties for noncompliance would we establish?

But the chief problem with this proposal is not whether it could pass or is practical. The very notion of governments telling companies how they must behave on matters of speech is worrisome in the first place.

Do we invite different kinds of interference down the road when we ask governments to be the arbiter of what speech is allowable and what isn’t? I fear we do. The U.S. government is growing visibly hostile to the First Amendment even today, and America is heading in the wrong direction on free speech in a general way. Maybe we should tend to our own backyard before we tell our neighbor how to weed his garden.

Nonetheless, the answers aren’t easy, as Rebecca MacKinnon says today, “but we need a lot more intelligent public debate on this.”

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