Upholding Free Speech and Privacy Online: A Legal-Based and Market-Based Approach for Internet Companies in China
Ling, Yutian, Santa Clara Computer & High Technology Law Journal
After the death of Mao Zedong, China embarked on a slow march towards economic openness with the outside world. Spurred on by the disastrous results of the Cultural Revolution, Deng Xiaoping introduced four modernizations in 1978 designed to spur economic growth in China: improving economic management, economic cooperation with other countries, adoption of advanced technologies, and improvements in science and education. (1) The result was 30 years of unprecedented growth. GDP increased over 13 times between 1978 and 2006, the per capita income increased dramatically, and over 200 million people were elevated above the poverty line. (2) Along with increased prosperity came economic freedom: the right to privately invest; the ability to move from place to place, to travel, or to seek employment; and more choices in goods and services. (3) In the midst of this economic upheaval, the Chinese government still tightly restricted political and civil rights to maintain single party control. (4)
In 1994, China opened itself up in another way. In that year the first international Internet connection was established in China. (5) Much of the Western world started using the Internet in the 1980s so China had to play catch-up. And catch up it did. China's adoption of the Internet rapidly increased in the 2000s. By the end of 2009, China had about 384 million Internet users, surpassing the United States (US) as the country with the most people online. (6) This rapid growth in Internet usage is attributed to several factors, including China's rapid economic development, a government effort to incorporate technology into the economic and governmental infrastructure, and immense popularity of the technology. (7) This proliferation of Internet usage did not go unnoticed by the Chinese government. For many years, the Communist Party of China (CPC) controlled and censored political dialogue that it considered a threat to party rule. (8) Realizing that this new communications medium immensely broadened the reach and power of any speaker, the CPC sought to tame it. The CPC has employed technological, legal, and psychological tools to control online content and discourse. (9) This vast effort to control the Internet is known as the "Great Firewall of China." (10) Even in the face of continued criticism from much of the international community, China persists in its Internet monitoring efforts.
The Chinese government is not accomplishing all of this by itself. It is also co-opting both domestic and foreign Internet businesses to aid in its censorship efforts. (11) The Chinese government requires companies to censor sensitive topics and makes them promise not to disseminate information that spreads superstition or obscenity or jeopardizes state security and social stability. (12) Companies such as Yahoo!, Microsoft, Google, and Skype have all submitted to the CPC's demands in order to do business in China. (13) The US government was not pleased that US-based companies were kowtowing to Chinese censorship demands, and Congress held hearings to interrogate the conduct of those companies. (14) Congress also considered passing the Global online Freedom Act (GoFA) to regulate US-based Internet companies' conduct abroad. (15) US companies are thus caught in a vice between the demands of the Chinese government and the criticisms of the US government and human rights organizations.
Traditionally, international law dealt with state actors only. (16) All business ventures were seen as extensions of the state. (17) As global commerce has evolved, corporations have become larger, richer, more powerful, and less controlled by the state in which they are based. Such transnational corporations (TNCs) are capable of violating human rights with impunity. How TNCs can be regulated is a conundrum with which the international community continues to struggle. The United Nations (UN) has made several efforts to regulate TNCs, including creating the Global Compact and debating passing norms on the responsibilities of TNCs in regards to human rights. …