I’m frequently frustrated by the silly imprecise concerns people have about ‘privacy’, particularly in relation to technology. Not only do most people who express concern about this issue have any clear theory about why a loss of privacy would be a bad thing they don’t even bother to distinguish the concept of privacy from other related concepts like obscurity. Ironically while many people who claim to be worried about privacy would, if pressed, cite some Orwellian concern about the government or corporations using information about to control what we can say few people seem to be upset at the governments continuing attempts to do just that. While I know that in a country where a sizeable fraction of the populace is convinced we need laws to protect us from certain combinations of sounds rational consideration is unlikely to ever make a difference it’s still a fun game to play so I’ll take a look at the recently proposed ‘Do Not Track’ list.

Now I agree with Mr. Harper over at The Technology Liberation Front (TLF) when he observes that a ‘Do Not Track’ list isn’t really analogous to the ‘Do Not Call’ list. Targeted advertising is a practice which increases the efficiency of the voluntary exchange of your time/eyeballs for web content while telemarketing is a practice with a significant externality (your time/annoyance) that isn’t paid for by the advertiser. In short targeted advertising makes us better off while telemarketing makes us worse off.

I’m slightly sympathetic to the concern that some people have about advertising companies like doubleclick/google tracking their visits to third party websites. However, despite the ridiculous claim that because mozilla developers get advertising revenue (from google for the default search box) they would never do anything about this problem their are a fuckton of privacy and anonymity extensions for people to use. If people don’t even care enough to go install a browser extension or to convince the firefox people to include such a feature by default (like the popup blocker) then the intrinsic cost of the legislation outweighs these minor benefits. Worse, ignorant of the benefits they get from the practice many people are likely to sign up as the result of scary sound bites about “being watched.”

While I think some of the more extreme worries presented over at the TLF are unrealistic I do think the concept of a ‘Do Not Track’ list raises free speech concerns. While I think it’s surely within the scope of congressional power to require corporations to have privacy policies and abide by them or to impose liability for data breaches requiring someone to delete or avoid recording freely given information is more troublesome. Surely the government could not pass a law preventing any unauthorized individual from retaining financial data on members of congress, that would bar any journalistic inquiry into fraud charges against congressmen but you might think a rule that applied only to normal buisness records avoided these problems. However, I think the recent revelations about who is editing wikipedia, e.g., congressional staffers editting their patron’s page, are a clear example of how user tracking data can be necessary to speak on matters of public concern.

More generally the first ammendment, if it is to have any force, must be read to protect the creation of notes and collection of data. Hell, the creation of a note is itself an act of speech. Simply because you might have lots and lots of data now as a result of the information revolution can’t change that. If I as a blogger have first ammendment protection for announcing that so-and-so visited my blog or that someone with cookie blah-blah-blah did so it’s hard to see how I couldn’t also have first ammendment protection for conveying that information in bulk to someone like google.

Now I admit that the supreme court’s analysis of this issue might be significantly different. I do tend to be a bit of a free speech absolutist. However, regardless of legality I think it’s damn important for us to retain the right to record what happens to us or to objects we control and analyze or pass on that information. If that means people have to go to a bit of trouble to remain anonymous that’s a small price to pay for information freedom. Ultimately technology will erase the obscurity we’ve enjoyed for the last 100 years or so since we moved into cities the only question is do we get democratic access to the analyzed data and the right to use the same tools to monitor the government they use against use or do we adopt a hierarchical model where the government knows everything and the rest of us are barred from accumulating information in databases.

So in a previous post I argued that all the criticism of google for  establishing a censored version of its search engine in China is unjustified.  Now some lawmakers want to make it illegal for US search engines to locate in China and probably prevent servers for blog content and other applications that might give the Chinese government leverage over free speech.  I believe that the bill would also attempt to prevent Google and Yahoo from offering censored search results for the Chinese (even on a server in the US) and prohibit the export of technology to let others do the same (no shipping China a box of servers and selling google.cn to some local company).  Ironically such a bill might have first amendments problems of its own.  Free speech rights have been understood not only to protect your right to say something but also not to say something, e.g., the government can’t force newspapers to parenthetically say “which some people believe is murder” whenever they mention the word abortion, and arguably telling a search engine that they can’t return some subset of their results when someone goes to google.cn would raise such an issue (though since the audience is not inside the US their is probably wiggle room).  Putting aside the interesting legal questions I want to discuss the wisdom of such a bill as well as the irony of passing such a bill in the current political environment.

Since I’ve already talked about the whole google China thing here recently I’ll put the rest of the post in the extended entry and give my front page a break.

ASIDE:  I just heard someone on the radio ask something like, “Does free speech mean we must endure insults to The Prophet.”  Of course it does.  Everyone is in favor of free speech except for…  the Chinese government included.  The central principle of freedom of speech is that being offensive is never grounds for banning speech.  Free speech except for religious, ethnic or whatever sort of speech just isn’t free speech (banning speech that is directly harmful, e.g., the fire example, ordering a hit etc.., is not about offensiveness and hence a truly different matter).

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China has a national internet censorship policy. It blocks its citizens from (straightforwardly) accessing websites like the BBC and various blogs that it finds too critical of the Chinese government or otherwise objectionable. While China theoretically allowed its citizens to access google.com the site was heavily filtered and these filters made the site frequently inaccessible, slow and buggy. Ultimately google decided to address this problem by appeasing the chinese censors and creating google.cn which they self censored. Theoretically this would then afford the chinese people the ability to access google.cn with the same speed and reliability as we access google.com. This is exactly what happened when Yahoo and Microsoft made similar decisions previously but the current state of affairs is unclear as China now appears to be blocking google.cn. However, at the moment the Chinese government seems to be blocking google.cn anyway.

This choice has been criticized by members of congress and many others. However, the lack of sophistication, or anything but an emotional appeal in these complaints is notable. The critics complaint simply seems to be that China’s censorship policy is evil and therefore it is wrong to assist or participate in that program. As it stands this argument is just dumb. Perhaps all other things being equal it is wrong to participate in a harmful program but it surely is not true in general. Suppose that a crazed terrorist had his finger on the trigger of a nuclear device in New York and was (believably) threatening to detonate it unless the president went on children’s TV and announced that the military had accidently shot down and killed Santa Claus. Though the terrorists plot to make little kids cry is surely evil participating in that plot is actually morally required (assuming this is by far the best chance to save the city). The question with any unpalatable moral choice like this should be which outcome causes the least harm and sometimes even the best choice isn’t great.

Google’s response is essentially that the Chinese people are better off with reliable censored access to their search engine than unreliable (to the point of almost nonexistence) access to a censored search engine. This argument seems essentially correct to me. If the only effect of this choice is to give the chinese more reliable access to the same material they had before it is undoubtedly a good idea. While I have yet to see any critics say anything this cogent there are a few arguments one could make that appeasing the Chinese government in this matter could have secondary negative effects or otherwise make Chinese censorship worse. Since the critics (at least the ones I have seen) have done such a bad job making compelling arguments I will try and make the best arguments they could make and explain why, while I think some of them are plausible, ultimately I don’t find them compelling.

1. Google will be a better censor than the Chinese government and keep information from the Chinese people that would have otherwise slipped through.
2. By doing the censorship themselves google will render the censorship invisible and hence more dangerous since people may not realize some information has been withheld.
3. By decreasing the inconvenience caused by government censorship google will make continued censorship more palatable and thus more likely to continue.
4. Google provides such a good search Chinese users will choose to use this censored search rather than finding information via below the radar methods which might escape censorship.
5. Google’s willingness to appease a censorship inclined government will encourage the Chinese or other governments to impose more policies of this kind.

The first argument here just appears to lack factual basis. While google is almost always able to guess the correct spelling when I search google the Chinese search page fails to block common misspellings of sensitive words. One almost has to wonder if their censorship is purposefully half-assed. Perhaps that is why the Chinese government has now blocked access to the new page. In any case there seems to be no reason to believe the Chinese are now missing out on much information they previously would have found on google. After all google.com was often inaccessible before and any results are more than none. The second argument is similarly refuted by the facts. Google makes clear statements on its Chinese web pages that the results are censored. It is possible that the Chinese people now get less information about the specific searches that are censored/filtered on google. However, people in totalitarian regimes usually discover by word of mouth what areas are likely subject to censorship and they certainly get no less information than they did when google simply wasn’t working.

Arguments 3-5 are more serious concerns. Indeed had google been the first company to appease the Chinese government in this fashion I would probably find such considerations damning. However, Yahoo and Microsoft have already done the same with their search engines making sure that any harm that this kind of search censorship might cause would happen whatever google’s decision. Google’s search does seem better than that offered by its competitors but not by that much (and would probably not remain better if the ceded the potential revenue from the Chinese market). I probably would switch to another search engine (even Microsoft’s) if google.com was down even 5% of the time I visited, much less the frequent outages google.com suffered in China, and the slightly inferior results wouldn’t even be worth conscious irritation. This sort of insignificant difference in convenience simply isn’t big enough to make any difference in the lifetime of Chinese censorship. If China stops censoring it will be because of the onerous nature of censorship or perhaps the problems created by blocking sites like the BBC not because the chinese hate having to use Yahoo or MSDN rather than google (not to mention potential chinese search companies). Finally, the resistance of one idealistic company to accommodate Chinese censorship when the other two search giants happily acquiesce is unlikely to dissuade other censorship measures.

Additionally I would point out that choosing to acquiesce to China’s demands for censorship may actually benefit the cause of free speech in the long run. I won’t flesh out the arguments but here are some reasons this might be true.

1. Microsoft and Yahoo have gone quite far in helping China implement it’s repressive policies, even turning over information to convict dissidents. As long as google helps the Chinese government less than it’s potential competitors the Chinese people have more free speech and expression.
2. While slight google’s better search results could help the Chinese find (indirectly) resources that have yet to be censored.
3. Google’s choice seems to have greatly increased awareness and concern over Chinese censorship in the US and US congress.
4. In the long run bending slightly and creating more economic and business ties between the US and China is likely to encourage China to adopt more liberal policies. If instead China is isolated and develops its own version of google it may actually end up placing even more restrictions on its citizens.

Ultimately the reaction to google’s decision seems to be more motivated by emotion than valid concerns. At the very least it is reasonable to believe google made the less evil choice and as they undoubtedly believe this they simply aren’t being hypocritical. On the other hand congress’s criticism of google does seem hypocritical. After all congress has been supporting a policy of engagement with China for decades, ignoring repeated demands to revoke things like most favored nation trading status unless China improved it’s human rights record. This was all done on the theory that engagement would end authoritarian rule faster than disengagement. The exact same argument that justifies google’s action. Not only this but as it is obvious that in the absence of a law to the contrary some US company will ultimately cave in to China this smells like a cheap political appeal made by politicians who aren’t willing to actually pass a law and do something about it.

The problem with this issue is, I suspect, is one of framing. Because google already offers an uncensored search in the United States it is easy to characterize their decision as denying the Chinese access to information despite the fact that this information is already blocked. Microsoft could refuse to sell windows in China without strong encryption and internet anonymity tools. Ebay, AOL, Amazon, or any other major web presence could offer an anonymizing proxy on their pages to Chinese users. Despite the apparent similarity of these decisions to googles (a trade off between profits and access to the chinese markets and principled absolutist stands on freedom) no one reacts to these situations in the same way.

So a recent guardian story linked off of slashdot gives weight to my concern about transfering the internet to international control. Some of the important points are as follows.

• It is specifically the centralized DNS system that the fuss is all about.
• The countries threatening to splinter are China, Russia, Brazil and some arab states. Sounds to me much more like a coalition intent on exerting more control over the internet rather than protecting it from US control (except perhaps Brazil).
• Some of the structure being proposed seems to be broad enough to include content regulation
• Even the Swedish Prime Minister has concerns about the EU plan being used for censorship, i.e., it isn’t just a US excuse.

Some relevant quotes

But designing new structures is exactly what the international community seems intent on doing. At one end of the spectrum are Iran, Pakistan and other so-called control-oriented states that want to create a new governing council for the web to which Icann would be accountable. The remit of this council seems broad enough to include questions of content, a worry for advocates of free speech on the web.

The EU plan was applauded by states such as Saudi Arabia and Iran, leading the former Swedish prime minister Carl Bildt to express misgivings on his weblog: “It seems as if the European position has been hijacked by officials that have been driven by interests that should not be ours.

It seems clear to me that once an international governing body controls the DNS system it will be much easier for China and the arab states to demand a censorship system and recieve in return a comprimise system. In fact it is difficult to imagine in what sense could an international body be in charge of the internet yet not at least comprimise with a position held by a significant fraction of the international community. However, even if you don’t believe this will ultimately happen I think the article establishes beyond any doubt that moving to international control increases the risks of DNS censorship. I think whatever miniscule amount of goodwill we might recieve from such a gesture (I don’t think we will get any) is not worth the risk with something as important as speech.

I know it is popular in the academic circles I travel in to see the UN as a more palatable alternative to Mr. Bush’s unilateral policies. While I can’t say I’m a fan of Bush’s absolutist America first attitude this doesn’t mean I can’t see the UN’s flaws. In particular while the UN is a useful forum for promoting international dialog and understanding it is a very poor platform for regulation or international policy. Remember, aside from the bizarrely structured security council, the UN gives each country one vote regardless of size or democratic status. Thus the Ayatollah has as much say in the UN as all the people in Brazil.

These considerations make me extremely concerned about the recent attempts to wrest control of the Internet away from the US and annex it to the UN. While the US hardly has a perfect record with regards to free speech I think leaving the Internet to any international body is taking an even greater risk. Even a regulatory body composed of North American and European democracies would be dangerous and reserving a US veto wouldn’t help matters much. Leaving Internet regulation firmly under the auspices of the first amendment is the most promising path to protect the rights of all Internet users not just those in the US. (more…)