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

The primary issue that Googlewas bringing up was a simple and not politically hot one. Companiesneed to know that the government of countries they are trying to dobusiness in will have laws and enforce them against those who attackthe physical or virtual infrastructure of these businesses. Whetherthe people who were hacking Google's computers from China were doingso under the authority or encouragement of the Chinese government issecondary 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 andarticles about this incident suggested Google was trying to protectonline free speech. I do not buy that argument in this case. Googlefilters search results on behalf of many governments, includingwestern governments such as the United States. Whether what thesefilters are monitoring and disallowing is censorship or somethingelse is a political discussion, not a technological one. Thetechnologies that implement these filters are neutral to these highlycontroversial political debates.

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

For discussing the politics ofthe situation, I can think of no better reference than the speechfrom January 21'st by USA Secretary of State Hillary Rodham Clinton'sso-called “Remarks on Internet Freedom” (transcriptand audio/video).

She spoke about the Googleincident, saying “The most recent situation involving Google hasattracted a great deal of interest. And we look to the Chineseauthorities to conduct a thorough review of the cyber intrusions thatled Google to make its announcement. And we also look for thatinvestigation and its results to be transparent.”

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

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

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

“Those who use theinternet to recruit terrorists or distribute stolen intellectualproperty cannot divorce their online actions from their real worldidentities. But these challenges must not become an excuse forgovernments to systematically violate the rights and privacy of thosewho use the internet for peaceful political purposes.”

Think about this for themoment. Ms. Clinton, and possibly the Obama administration as awhole, are suggesting that the infringement of patents, copyrights,trademarks and related exclusive rights are comparable to terroristrecruitments, and warrant extreme measures to stop.

This is consistent with USdomestic and foreign policy given the law which most often affect therules that an Internet inspection and filtering system will obey isCopyright. One only needs to read about the policy debates leadingup to the mis-labeled Anti-Counterfeiting Trade Agreement (Start withthe USA's National Information Infrastructure, policy launderingthrough WIPO, and now forum shopping with ACTA) to know how importantthat controlling the Internet and the devices which can connect tothe Internet is to the United States government.

The most visible technologypolicy from the US is to impose Internet inspection and filtering forcommunications networks, and to lock down devices and make it illegalfor the owners to hold the keys. These policies are entirelyincompatible with the promotion of “Internet Freedom” beingalleged by Ms. Clinton.

TheUnited States has rresting people for disagreeing with domesticgovernment policy in the area of Copyright. We saw in 2001 with DmitrySklyarov that the US government had no problem arrestingand detaining foreign citizens for activities which are not illegalor even considered immoral in the countries representing the vastmajority of the worlds population.

Each country has their owngoals with the rules they wish loaded into the monitoring andfiltering of communications networks and rules imposed oncommunications devices.

In the case of China it isspeech which they believe may destabilize the government. Theyconsider religious speech to also be a threat, suggesting thatreligious speech is political speech. This is a country that has1/6'th of the worlds population, and yet is a far more stable (andthus physically and otherwise safe to its citizens) than manycountries only fractions of the population.

In the case of the UnitedStates it is speech that harms the commercial interests of a fewcorporations who have chosen a narrow set of business models. Clinton said that, “from an economic standpoint, there is nodistinction between censoring political speech and commercialspeech”, not recognizing the irony of her words. While the USdeveloped by not honoring foreign copyright and patents, it wishes todisallow other countries from doing the same thing. The viewsexpressed from some of the copyright maximalist have become soextreme and inclusive of so many harmless activities that it haselevated copyright infringement to be a form of political speech — aform of non-violent (and only questionably economically harmful)civil disobedience.

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

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

When put in what I consider tobe the proper context, the politics of this speech by Clinton lookreal bad. I believe that before a representative of the USgovernment can make any statements about China's manipulation ofcommunications technology with a straight face that they need toclean up their own act. In the case of the USA that would includerepealing the anti-circumvention aspects of the Digital MillenniumCopyright Act, and enacting strong Network Neutrality legislationthat ensures that any inspection and monitoring of communicationsnetworks have court oversight, and ultimately transparent tocitizens.

This action by the USA shouldinclude ceasing all negotiations of any treaties that would seek toimpose anti-circumvention or communication networkmonitoring/inspection, such as ACTA. This would include working withgovernments to re-negotiate the 1996 WIPO treaties and any bilateraltreaty or trade negotiations to remove these provisions as well.

Until this time the UnitedStates shouldn't embarrass themselves by suggesting they have thehigh ground when it comes to Internet Freedom.


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.

Share on LinkedIn Share with Google+ Comment on this article