Internet Censorship as a Trade Barrier: A Look at the WTO Consistency of the Great Firewall in the Wake of the China-Google Dispute

Article excerpt

TABLE OF CONTENTS

  I. INTRODUCTION

 II. CHINA'S TOOLBOX OF INTERNET CONTROLS
     A. Filtering or Blocking through the Great Firewall
     B. Deletion and Removal of Content through Self-Censorship
     C. The Green Dam Controversy
     D. Government Licensing of Websites
     E. Localized Disconnection and Restriction

III. INTERNET CENSORSHIP AND THE MULTILATERAL TRADING
     SYSTEM
     A. Does GATT or GATS Apply?
     B. Applying GATT to Internet Censorship
        1. National Treatment in GATT Article III:4
           a. Like Products
           b. Laws, Regulations, or Requirements Affecting
              Internal Sale, Offering for Sale, Purchase,
              Transportation, Distribution, or Use
           c. Less Favorable Treatment
        2. Non-Tariff Barriers Generally Prohibited by
           GATT Article XI:1
        3. The Public Morals Exception: GATT Article
           XX(a)
           a. Necessary to Protect Public Morals?
           b. Article XX Chapeau
     C. Applying GATS to Internet Censorship
        1. Interpreting China's Online Services
           Commitments in its GATS Schedule
        2. China's Market Access and National Treatment
           Commitments for Online Services: GATS Articles
           XVI and XVII
        3. Lack of Transparency: GATS Articles III:1 and VI.
        4. The Public Morals Exception: GATS Article
           XIV(a)

   IV. OVERALL IMPLICATIONS OF PURSUING A 'WTO STRATEGY

    V. THE WTO's USE OF THE TECHNOLOGY NEUTRALITY PRINCIPLE
       AND AN EVOLUTIONARY APPROACH: STRIVING TO KEEP UP WITH
       CHANGING TIMES

I. INTRODUCTION

On January 12, 2010, Google surprised the world by announcing that it may end its four-year long presence in China after discovering an attack on its corporate infrastructure originating from within the country. (1) Computer hackers had conducted highly sophisticated cyber-attacks on the Gmail accounts of Chinese human rights activists and had targeted at least twenty other large companies from diverse sectors. (2) In response, the Internet giant declared that it would stop censoring search results in China, abruptly shifting from its past approach in which it largely complied with censorship laws requiring it to block politically and socially sensitive topics. (3) For its part, the Chinese government has repeatedly denied involvement in the cyber-attacks, has launched raids on hacker training websites, and has even discussed the possibility of enacting tough, new anti-hacking legislation. (4) Ultimately, Google's negotiations with China over the extent of its future compliance with censorship laws proved fruitless, and the company announced on March 22, 2010 that it would close its Internet search service in China (google.cn) and begin rerouting Chinese users to its uncensored search engine in Hong Kong. (5)

This unprecedented turn of events was sure to provoke powerful reactions. Having made clear throughout the ultimately failed negotiations with Google that self-censorship was a non-negotiable legal requirement, the Chinese government condemned the Internet company for breaking the promises it made when it first entered the Chinese market. (6) Conversely, Google has garnered praise from the general American public and human rights organizations for finally stepping up to China and prioritizing basic freedoms over corporate profits. (7) The fact that Google ultimately bowed out, however, casts significant doubt on the argument that Internet companies, even when censored, can bring more information to Chinese citizens and help loosen the government's controls over the web. (8) Google's inability to ethically and successfully continue its search engine operations in China has come to symbolize the worsening business climate for foreign corporations there; businesses are both burdened by government restrictions and left increasingly at a disadvantage compared to favored home-grown companies. …