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.

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).

Ultimately I don’t think I favor the bill in its full form but I want to make it clear that supporting this law is a reasonable position unlike the ridiculous criticism heaped upon google (though finally the media is doing better). If refusing to bow to Chinese demands for censorship is to the benefit of the Chinese people then we need to stop all search companies from giving in.  Asking one company to stand on principle while its competitors buckle to the Chinese demands just makes sure that virtue is punished and the Chinese people use the other search engines.  It is one of the principle benefits of the free market that it tends to overcome personal conviction and social norms.  This is the reason we don’t live in a boringly puritanical society where no porn is sold, TV is only educational programming and those ‘brain rotting’ don’t exist.  The free market behaves as the Internet is supposed to behave (but doesn’t) and routes around attempts to deny desired products.  Unfortunately in this case the desired product is a search engine that works fast and reliably in China and given the Chinese governments censorship policy this means censored search results.  If we don’t want US search companies to offer censored services for the Chinese a law is the only way to do it.  Even if public pressure convinced MS, Yahoo and Google to all withdraw their censored Chinese services some other company would show up on the scene to cash in on the huge Chinese market.

The important question though is whether we do want to stop US search companies from offering censored search.  Certainly it would be best if the Chinese citizen could access content freely but it would be hopelessly naive to believe that China would just give up on its campaign of censorship because it doesn’t.  Also by the same argument I gave above we should expect non-US companies to crop up offering search.  The bet we would be making by banning US companies from censoring results for China is that our technology and know-how in search technology will be able to out pace the technology and know-how that an Indian, Chinese or other non-US country will generate when fueled by the potential revenue of a billion Chinese citizens.  Personally I don’t think this is a good bet to make.  The number of companies that provide search results is a testament to how easy it is to do adequately and the risk if we bet wrong seems too great.  I suspect that any non-US company that rises to prominence because of a willingness to censor results for China is going to be much more inclined to censor in general.  There are plenty of other repressive regimes out there in the world but most of them simply don’t have the size and economic potential of China and hence can’t expect new search companies will spring into existence just to censor their results but if this new Chinese search company was willing to do so I expect they wouldn’t hesitate to take advantage of it.  In other words I don’t think (and really would protest if so) that google, Yahoo or MS is going to offer Iran a search that blocks out pro-Israel propaganda or information contradicting the governments nuclear propaganda but the new companies we would create by denying these companies access to the Chinese market very well might.  Even worse if these search companies were created by people without a commitment to western style free speech they might voluntarily choose not to return results offensive to Islam or they feel are pornographic.

I also find the argument that closer ties and trade with China will improve the lot of the Chinese people in the long run.  I have to give the Representative (Chris Smith) introducing this bill credit for being consistent as unlike a lot of congress he doesn’t seem to think human rights will benefit by embracing China (but I may be mistaken).  I agree that China still has many human rights issues but I disagree that there hasn’t been significant progress.  A middle class is forming in China, trade and business deals are allowed, press freedom seems to be increasing (even if the penalties for going to far are still severe), and most importantly the opinion of locals seems to carry increasing weight.  The idea is that this helps in the long term and I think there are signs that this is the case.  The idea that China should just wake up tomorrow and decide they are a western democracy with all the associated rights is as ignorantly idealistic as was Bush’s belief that the Iraqi people would greet us with open arms for bringing democracy.  Remember people’s rights can be violated by plenty of people besides the government and the current state of Russia provides some lessons about what can go wrong in a sudden switch to democracy. 

I think the better approach is not to demand China change overnight but to bargain with them to minimize the human rights violations.  In this case I think that means we should engage in diplomatic negotiation with China to work out a compromise on internet censorship, i.e., we agree to let US companies censor certain sorts of results and China agrees to weaken its censorship of the internet in return.  Perhaps this is what is going on and congress’s legal threats are really just posturing to convince China we are serious and if so I applaud them.  Hopefully what can come out of all this is a bill which allows our internet companies to compete in the essential Chinese market but establishes regulations on the type of censorship that can be done and the type of data that can be turned over.  Such a law might allow US companies to do what the need to do to make sure China doesn’t spawn a new flock of censor friendly search companies but make sure they didn’t cave to places like Iran that don’t pose the same risk.  The part of the proposed law I like is the bit about servers not being located in repressive regimes.  I don’t think it should apply to all servers, rather, I like the idea that US companies wouldn’t be allowed to save any information on servers in China that might help the government identify dissidents, i.e., they could run search engines in china but if they want to save info about who is searching or to whom some blog belongs to that information would need to be kept inside the US and US laws would prohibit them from turning it over.  I don’t know enough about international law to know if this is plausible but the idea sounds appealing.

I have to remark that I find it pretty ironic that people are worried about google censoring their Chinese results at the same time as they are criticizing Jyllands-Posten for publishing these islamic cartoons and many people are suggesting that it should be illegal hate speech.  I realize that these two groups may not overlap too much but the people criticizing google haven’t seemed to be anywhere near as worked up about the calls for censorship in the cartoon fight.  In fact Jyllands-Posten published the cartoons to point out that media companies were acting just the way people are criticizing google for acting, i.e., refusing to display otherwise appropriate material because some group told them they didn’t like it. 

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.

• 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.

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. The issue that concerns me most is domain name allocation. Denying certain groups/opinions domain name registration can very effectively censor those groups. While there is a great deal of hype about the decentralized nature of the internet the DNS system is entierly centralized and a systematized policy of censorship applied through the DNS system could make the dissemination of banned information pragmatically impossible. Imagine for instance a policy which revoked any domain name found to be hosting or linking to ‘unacceptable’ content. Especially if pressure is also applied to search engines it would become impossible to locate the content in question.

This sort of systematic restriction of speech may seem unimaginable in todays world. Surely western democracies would never permit such harsh censorship! However the laws against hate speech or racist speech in countries like Germany say otherwise. Germany has already stopped several internet booksellers from selling Mein Kampf to german citizens. Many other western democracies also have their own laws against hate speech.

Still some people may not be much moved by the plight of racist groups. In my opinion this sort of censorship actually encourages the very sort of groups it is meant to stop but this is an argument for another post. However, as always the difficulty is defining what counts as hate speech. While this is problematic enough even in the relative cultural homogeneity of western democracies what happens in an international forum where islamic countries have the same say as any other country. How does one ensure that restrictions on hate speech are not broadened to prevent speech decrying islam as anti-woman or as a systematic violation of human rights (or just plain stupid like most religions as I think)?

Perhaps more disturbingly to the type of people who are likely to favor UN control is the issue of corporate criticism. While the US has fairly broad rights of criticism and parody most other countries do not. It is entierly plausible that an international regulatory board for the UN would prohibit domain names like ‘McDonalds-sucks.com’ which include trademarks.

While less likely a more dangerous scenario is that unable to agree on what counts as acceptable content the international regulatory body decides to implement a system allowing each country to make it’s own deciscions. This is almost certainly what China would push for and probably countries like Saudi Arabia as well. What if the root level name servers were configured to return results censored based on the country of the requesting access. While it would still be quite easy to circumvent such a system it could make it easier for repressive regimes to target people visiting the wrong sorts of websites and reduce the political barriers to this sort of censorship.

Still some might rightly point out that the US is actually more restrictive of a great deal of content, particularly sexual content, than many other western democracies. This is true but as much as I like my internet porn I don’t think it is as serious a matter as real political content and the european nations seem much less tolerant of offensive political content. I think it is pretty clear that the US is more likely to pass a law outlawing porn but EU countries are more likely to pass a law preventing one from claiming their are racial differences in intelligence.

Moreover, I don’t think the relevant question should be who actually censors more content. When times are good free expression always flourishes. The question is who shows a greater support of expression most of the country finds deeply abhorent. Here I think the US wins. The Europeans aren’t more acceptive of porn because they have a greater dedication to free speech but simply because they don’t find it as offensive.

Finally I think the potential benefits of moving the internet to UN control are quite limited. A large enough percent of the internet still lies under US control that if the US decided to enforce some systematic form of censorship like that described above it could whether or not someone else was in charge of the DNS servers or other top down controls. If the US refused to carry traffic from sites it choose to block (potentially preventing US companies from producing any hardware which didn’t block them as well) it would be more than effective enough at censoring the internet. Thus there is every possibility for loss of freedoms by giving the UN control over the internet and no corresponding loss in danger from US censorship.

Also to defuse any potential comprimise proposals let me point out that giving the US some kind of veto over internet policy wouldn’t help one bit. US presidents have shown no particular hesitation to control free speech, it is the courts who have primarily protected these freedoms. However, the courts do not have the authority to mandate a presedential veto in an international organization. In fact this would likely create the worst of all possible solutions in which US presidents have every incentive to make comprimises with other countries on the internet governing board so that these other countries do their censorship for them. In order to get around the constitution the US would have ever incentive to impose as much of its censorship universally on the world.