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Searching for guidance in Chinese cyberspace
20 September, 2011
Table of contents
Acknowledgements iii
Overview: Searching for guidance in Chinese cyberspace 1
Introduction: Mind the gap 3
Part 1. The Golden Shield: China’s strategy for controlling domestic cyberspace 5
1.1 A pyramid of control: China’s internet censorship and surveillance mechanisms 6
1.2 Seek and ye shall not fnd: The complicity of search engines 7
1.3 Publicity and public order: Additional considerations 9
Part 2. Complicity: U.S. Corporations in the Chinese Internet Market 10
2.1 Google: “Don’t be evil;” Do make money 11
2.2 Yahoo!: Going Native 12
2.3 Microsoft: MSN Spaces and the Bing-Baidu partnership 12
2.4 Skype: Breaching trust 14
2.5 Cisco: Selling Surveillance 15
2.6 Having their cake and eating it too 16
Part 3. Current policy and legal measures 17
3.1 Locutions of liberty: U.S. policy 18
3.2 Tools to implement U.S. policy: Voluntary codes 19
3.3 The American way: Statutory remedies 19
Alien Tort Statute 19
The Torture Victim Protection Act 20
3.4 We are the world: Ìnternational principles and initiatives 20
United Nations statements 20
UN Global Compact 21
e-G8 21
3.5 Transmission delay: The proposed Global Online Freedom Act 22
What is to be done: To new beginnings and new behavior 24
Endnotes 25
SecDev Analytics
List of boxes
Box 1 Key takeaways: at a Glance 2
Box 2 China’s system of control: How it works 5
Box 3 How do search engine companies shape Chinese cyberspace? 8
L|st of ñgures
Map of Connectivity 6
SecDev Analytics
The SecDev Group drafting team was comprised of Elinor Buxton, James Farwell, and Natalie Ratcliffe, who
worked under the guidance of Rafal Rohozinski. Deirdre Collings and Arnav Manchanda provided editorial
support. The authors are grateful to a number of anonymous reviewers who provided constructive input at
short notice. Thanks also to the Citizen Lab, Psiphon Inc, OpenNet Initiative and Information Warfare Monitor
for sharing their invaluable research. Publication layout and design was led by Madeline Charlton.

SecDev Analytics
Overview: Searching for guidance in Chinese cyberspace
“Who controls the past, controls the future: who controls the present, controls the past”
George Orwell, 1984
Searching online should be easy. Type a request
into a search engine and the screen lights up with
a neat list of what is available on the World Wide
That is not the case in China.
China’s search engines implement and enforce
state policy. They allow the past to be rewritten
and make inconvenient truths disappear. Social
discontent mobilized by local corruption or
bureaucratic intransigence is redacted. Tibetans,
Uighurs and other minorities show up as
historically happy subjects of the Chinese state.
Little is said about the presence of heavy policing
in these regions that has followed recent mass
uprisings. Enter “Tiananmen Square” into Baidu,
China’s leading search engine, and it becomes
just a plaza in Beijing. Much like the memory
hole described in George Orwell’s 1984, China’s
search engines allow the past to become just as
the present requires it to be.
While its constitution upholds the right to free
expression and privacy, China maintains strict
control over domestic cyberspace. Censorship
and surveillance are justied as necessary to
maintain the social stability and cohesion of its
1.3 billion subjects. The Golden Shield project
- an ambitious state cyber security strategy -
has spawned an elaborate system that enables
pervasive censorship of internet content, requires
mandatory registration of new sites, and enforces
strict self-policing by China’s online population.
Good behavior is expected and bad behavior
is punished. Everyone lives behind the “Great
Western corporations cashing in on the Chinese
Information and Communications Technology
(ICT) market face difcult ethical dilemmas. This
report focuses mainly on the operations of the
major Western search engines active in China, all
of which are U.S.-based. This is because search
engines such as those run by Google, Microsoft
and Yahoo! face the toughest challenges. They
are gatekeepers to the vast repository of human
knowledge in the information age. They also
know a lot about us: our browsing habits, our
interests, and increasingly, our social networks
and contacts. Entering into the Chinese market
as a search engine or social media provider is
an ethical mineeld. In the hands of authorities
determined to police their subjects, search engines
and social media platforms such as Facebook can
become a potent tool of online repression.
Western corporations can act deferentially in
concert with Chinese law – which in many
cases means effectively helping the government
to perpetuate censorship, surveillance and
restrictions – or they can ensure that their actions
are consistent with their own national laws and
international instruments such as the Universal
Declaration of Human Rights. If the latter is
not possible, they can choose to withdraw from
China, as Google did.
The dilemmas faced by Western ICT corporations
are not restricted to Chinese cyberspace alone.
While China is certainly the most important
case nancially and politically, the complicity
of Western companies with internet-related
violations of human rights has been occurring in
other countries and the caseload is growing fast.
So what is to be done?
Industry plays a uniquely powerful role when
it comes to the internet. Companies – not
(necessarily) governments -- own cyberspace.
They are well-positioned to undertake voluntary
commitments that encourage better behavior.
But when this doesn’t work, governments have
a responsibility to provide guidance, which may
also require legislation.
To do nothing is bad for business and bad for
democracy. Inaction undermines the values of
openness, access to knowledge, individual privacy
and informed choice. It threatens the future of
the internet and diminishes its value as a driver of
global development and prosperity.
Government, industry and key stakeholders
should work together to nd feasible solutions to
the challenges of balancing ethics and economics
in the internet world. Solutions will come
from reining in opportunism and encouraging
responsibility, transparency, and accountability.

SecDev Analytics
Key takeaways: at a Glance
· The Chinese government has enacted a pervasive regime of Iaws, ruIes, and reguIations
that empower it with controI over access to the internet, content, and user information.
The regime applies these controls to online communications within China as well as data
entering or leaving the country. Foreign companies are required to comply as a condition of
doing business.
· China's censorship and surveiIIance poIicies are of particuIar concern to Western
companies that provide internet search engine services. Search engines can be gateways
to content control. They also collect user specifc information. As such, search engines can be
powerful tools for online policing and controlling the fow of information available to users.
· Most of the major Western internet companies active in China - for exampIe, GoogIe,
Yahoo! Microsoft and Cisco - are based in the United States. All have faced the ethical
dilemmas of conforming to China’s censorship and surveillance policies.
· Most companies have acceded to China's demands for information controI, seeing this
as the price of doing business. This choice has often led to concrete instances where the
companies have aided and abetted human rights abuses, as the case-studies in this report
· By contrast, GoogIe opted to withdraw its services from mainIand China.
· China's poIicies contravene U.S. positions on cyberspace openness, access to
information, freedom of speech and the individuaI's right to privacy. They also violate
accepted international norms on these issues, norms that are increasingly being extended to
include cyberspace.
· So what shouId be done about Western ICT corporations active in China whose
compIiance with Chinese Iaw requires them to coIIude in the vioIation of estabIished
human rights?
· VoIuntary codes to enforce ethicaI behavior on the part of corporations have thus far
been ineffective, and existing IegaI remedies are inadequate. No real legal remedies exist
to deter and correct corporate complicity in aiding and abetting Chinese human rights abuses.
· This report caIIs for new approaches that are practicaI, reaIistic, and actionabIe, and
that wiseIy baIance the competing pubIic and private interests at stake.
Box 1.
Introduction: Mind the gap
Balancing prots with principles is a challenge
for all businesses. It is especially challenging for
foreign businesses operating in China. Chinese
authorities rightly require that all businesses
conform to Chinese law. But when these require-
ments run contrary to the norms and values of
foreign companies and the commitments that
they uphold to their governments – not to
mention international conventions – it is a
legitimate question as to whether these
practices are ethical or defensible.
This paper examines the ethics, dilemmas, and
legal issues that affect U.S. search engine
companies operating in China. The focus on
China is deliberate. With over 450 million
internet users, China is an alluring market for
ICT companies. Its place in the pantheon of ICT
giants is also growing. It is the manufacturing
hub of the world’s technology marketplace. It is
increasingly a standard-setter in telecommuni-
cations. However, it is also a leader in internet
censorship and surveillance.
The focus on search engines is deliberate. They
are gatekeepers to a vast repository of informa-
tion and knowledge. They control access by
making information easy to nd. As a result, they
yield tremendous power in shaping perceptions
and controlling access. They also know a lot
about us. Search engine and social media busi-
nesses are built around knowing their clients.
What we browse, our interests, and who we have
talked to are all part of an algorithm designed to
tailor search results and generate targeted adver-
tising -- a business that generates immense prots
for these corporations. Consequently, search
engines and social media can be a potent tool
for online policing and controlling the ow and
avor of information available to users.
This report focuses on U.S. companies and U.S.
policies. This too is deliberate. U.S. companies
are global leaders in the search engine market.
Google, Yahoo!, and Microsoft’s Bing account for
approximately 94% of the global market share.

Their operations are global, and the impact they
have when balancing ethics and prots is impor-
tant. The United States is also currently the only
Western country with a clearly dened foreign
policy on cyberspace freedom.
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
The State Department supports freedom of
expression online, and freedom of access is one
of the core pillars of U.S. foreign policy. Other
Western countries continue to grapple with
dening their positions on cyberspace. Interna-
tional organizations such as the Organization for
Security Co-operation in Europe (OSCE),
Organization for Economic Co-operation and
Development (OECD), and the G8 are beginning
to develop a common set of norms. But they are
neither as advanced nor as clearly and
unambiguously stated as U.S. foreign policy.
Principles and profts
Search engine and other ICT companies have
been complicit in violations of privacy, enforc-
ing online censorship, the interception of private
communications, and the sale of equipment that
has ultimately aided repression. Attempted self-
regulation by industry is limited, and guidance
under national legislation and existing laws is
limited at best. International norms are emerging,
but their ultimate success will be dependent upon
national uptake and the willingness of corpora-
tions to balance principles with prots.
This will be tough. China’s growing importance
as an ICT superpower means that corporations
and governments are faced with the potential of
writing laws that lessen their competitiveness in
the global marketplace. This challenge is broader
than just China. States including Iran and
members of the Shanghai Cooperation Organiza-
tion have recognized search engines as strategic
properties. Iran plans to develop its own national
search engine and email system. Countries includ-
ing the Russian Federation and Kazakhstan have
declared their intention to police and regulate
social media.
The global marketplace itself is at risk if the glob-
al commons of cyberspace is transformed into a
set of national gated communities. Cyberspace is
changing. The digital natives – those who grew
up knowing nothing but online connectivity – are
entering their productive years. The Arab Spring,
London riots, Wikileaks, and massive privacy
breaches caused by hacker groups like Lulzsec
and Anonymous are emblematic of the new
politics and power of cyberspace. The internet
that was built in the 1990s was all about making
things work. Security was secondary. That is no
longer the case. Pressures to control and police
cyberspace are rising. At present, according to
the OpenNet Initiative, more than 45 countries
constituting approximately half of the world’s
internet population practice some form of online
control. This number is rising.
The creative heartland of the internet is still Sili-
con Valley, whose engineers have always favored
a policy of internet openness and access for all.
But that is also changing. The U.S. now forms
only 13% of the global internet population.
Together, the U.S. and Europe make up 40%,
and that share is declining. New internet giants
are rising and with them the centre of gravity is
slowly shifting. If the present day internet is an
embodiment of the values and norms of Silicon
Valley, what will the future internet look like,
when the creative centre of gravity is elsewhere -
in Zhongguancu, Bangalore, or any of the rising
cyber powers of the East?

There is a need for bold thinking. Existing solu-
tions need to be re-examined. Competitiveness
needs to be balanced with responsibilities under
domestic and international law. The need for ac-
tion is urgent: the involvement of U.S. companies
in China is growing, with new powerful players
such as Facebook seeking to enter the market.
At risk is more than just the prots forfeited
by exiting the Chinese market. Rather, it is the
future of the internet itself.
The internet became a motor for global
economic growth and development largely
through its capacity to provide open access to
knowledge and communication. Commitment to
those core values remains crucial to its future.
Objectives and format
This report aims to inform government and
business leaders of certain challenges faced by
Western search engine companies who operate
in China and the need for action. It is written in
three parts:
Part 1 discusses the “Great Firewall” of China and
how censorship is deeply embedded in every aspect
of the Chinese internet ecosystem;
Part 2 examines ve case studies where high-prole
companies have made controversial decisions in the
course of their Chinese operations, and the resulting
Part 3 deals with sources of policy and law that
may act as guidance or restrictions on the behavior
of companies when operating abroad.

Box 2.
China's system of controI: How it works
Filtering and blocking content: All international gateways are ultimately state-controlled, leading to
a single point for fltering. DNS tampering, ÌP blocking, and ÌP address misdirection are all employed
in order to redirect users.
Internal controls: ISPs and ICPs are subject to several regulations. ISPs must store user data and
are liable if they host objectionable content. And search engines – particularly relevant given the
strengths of U.S. companies such as Microsoft in the feld ÷ omit certain results in order to pacify
Managing the news: News services are subject to state provisions. The government has supervisory
powers, and provisions regarding content can be broadly interpreted in order to incorporate just about
any “offence.” Infringing organizations can be shut down.
Monitoring and surveillance: Blog providers must effectively encourage their users to self-censor
through end-user agreements. Email and chat services provide information on request, an effective
requirement that led to a public fasco for Yahoo!, when it came to light that its Beijing based
employees handed over personal user details to the Chinese authorities without following (or
adhering to) any legal process.
Part 1. The Golden Shield:
China’s strategy for controlling domestic cyberspace.
China is a censorship superpower. As the number
of Chinese internet users has exploded from 33
million in 2001 to over 450 million in 2011,
government has enacted measures that ensure
tight control online.
China operates one of the most extensive, sophis-
ticated, and far-reaching systems of internet lter-
ing in the world. Its scale, depth, and penetration
are extraordinary.
The Ministry of Industry and Information
Technology (MIIT) regulates internet use and
thus oversees censorship, alongside the State
Council Information Ofce and the Chinese
Communist Party’s Propaganda Department.

Several approaches are used to control content.
Domestically, China employs: legal threats and
voracious penalties; state-mandated surveillance
and ltration; and, state-induced self-censorship.
Websites that originate outside of China are
subject to the “Great Firewall,” a national online
censorship system ofcially known as the Golden

The OpenNet Initiative reports that the Chinese
government “has undertaken to limit access to
any content that might potentially undermine the
state’s control or social stability by pursuing strict
supervision of domestic media, delegated liability
for online content provision, and, increasingly,
a propaganda approach to online debate and

In order to understand this broad system of con-
trol, one must look at the internet from its macro
aspects – infrastructure and connectivity – to the
nitty-gritty of how content providers must deal
with their millions of users.
The following discusses:
1. China’s censorship and surveillance
system, including technical details of
ltering, as well as the role of internet
service and content providers;
2. The complicity of search engines. Search
engines are one of the most powerful tools
that control access to information; and
3. Additional considerations, including
China’s concerns for controlling the media
and safeguarding national security.
Collusion and Collision:
Searching for guidance in Chinese cyberspace
1.1 A pyramid of control: China’s internet
censorship and surveillance mechanisms
At the level of infrastructure, all international
gateways are state-controlled, leading to a single
point for ltering. In addition, IP blocking, IP
address misdirection and DNS tampering are all
employed in order to redirect users.
Nine state-licensed internet access providers
(IAPs) operate in China.
As of 2008, each had at
least one connection to a foreign internet back-
bone through three main ber-optic pipelines that
consist of giant cables running to Shanghai (from
Japan), the Beijing-Qingdao-Tianjin area, and
Hong Kong is also a point of con-
nection. There are also limited and slow satellite
services in some parts of the country.
The private
companies that run the ber-optic networks must
congure router switches, which deliver packets
of data between networks, at the edge of the net-
work where signals cross into foreign
These boundary routers
form an integral part of the Chinese
Golden Shield project to control
information ows. An American rm,
Cisco, sold routers and switches to the
Chinese government as part of this

Censorship is built into the infra-
structure. Overlapping techniques
are employed to lter content that
the government considers politically
sensitive. Goldsmith and Wu note
that ltering is “an instruction to
drop information from or for certain
addresses. In practice, the government
provides a list (the ‘access control list’)
of all the banned sites, identied by
their IP address (e.g. and
their URLs (e.g.”

One ltering method is IP (internet
protocol) blocking. China employs a
TCP (transmission control protocol)
reset system that inspects the content
of IP packets for blacklisted keywords
and IP addresses. If a blacklisted
keyword or IP address is found, the
routers controlling the trafc will
block the data going back and forth
between those addresses, and close the
connection. This packet inspection has
occurred with several large interna-
tional sites, such as YouTube.

The government also uses IP address redirection
through the use of DNS (domain name system)
tampering. The Chinese control many of the
authoritative name servers that are trusted to
point to the correct IP addresses for a given do-
main name or URL. As a result, this enables the
government to redirect requests to blacklisted do-
mains to whatever approved website they wish.

In an additional effort to restrict content, MIIT
informed computer manufacturers in May 2009
that all new PCs sold in China after July 1st
were required to have ltering software called
Green Dam pre-installed. This project has been
described as ultimately unsuccessful: researchers
at the OpenNet Initiative discovered that the l-
tering was ineffective and included unpredictable
and disruptive blocking of political content.
ensuing controversy provoked a rare reversal of
Chinese policy as the software was made
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
Internet service providers
The next level in the pyramid of control are in-
ternet service providers (ISPs) -- the retail sellers
of internet access – who are licensed by the nine
access providers.
Chinese law requires ISPs to
store important user data including identiers, a
log of activities, and URLs visited for at least 60
days. New users must register with local police
bureaus. ISPs themselves are liable if they host
content that is considered to be politically objec-

Internet content providers
Further down, one reaches the internet content
providers (ICPs) who operate platforms for creat-
ing or sharing information, including blogs, email
and chat services. ICPs must take a “voluntary”
pledge initiated by the Internet Society of China
(governed by the MIIT) known as the “Public
Pledge of Self-Discipline for the Chinese Internet
Industry.” This pledge vows to avoid disrupting
state security or social stability.
Violating the
pledge may result in reprimands or the revoca-
tion of an operating license.
Different services have different obligations. First,
several blog providers such as Tencent, MSN
China, TOM, and Qianlon signed the Conven-
tion on Blog Service Discipline in 2007.
convention requires blog providers to have terms
of service banning the dissemination of rumors
or false information. Signatories are expected to
encourage real name registration and to manage
content on their platforms by deleting posts con-
sidered inappropriate or illegal.
This does not
seem to have impacted the growth of blogging in
China -- the number of microblog (or “weibo”)
users more than tripled in just six months in
2011 -- but it does mark a limit on freedom of
Service providers are afforded some
degree of discretion, leading to uneven patterns
of ltering and variations in the transparency and
methods of censorship.

Secondly, email and chat services are expected
to provide information to the authorities upon
request. The unquestioned compliance of Yahoo!
in cases involving the email accounts of jailed dis-
sidents proved what a mineeld this can be (see
case study in Part 2. 2 below). Chat services must
lter and store information. For instance, QQ
(the Tencent-owned popular Chinese instant mes-
senger) was found to have a keyword-blocking
program within their chat client that monitored
and recorded users’ communications.
1.2 8eek and ye sha|| not ñnd: The comp||c|ty of
search engines
The limitations placed on ICPs are minimal
compared to the restriction on a user’s ability to
nd content at all. Underneath the multitude of
providers and agencies lie nearly half a billion
users. Search engines are some of the primary
portals that help these users navigate the internet.
They are also one of the most powerful tools for
potential repression (see Box 3). Baidu, who now
has a partnership with Dell as well as Microsoft,
dominates the Chinese market.
Search engines maintain lists of keywords, phras-
es, and website addresses that provide guidance
as to what should be blocked or removed. These
are, in general, at the discretion of each company.
Despite this exibility, companies tend to err on
the side of conservatism in order to avoid pro-
voking conict with the government. Companies
run diagnostic tests to see which words, phrases,
and websites are regularly blocked.
engines yield vastly different results, so here is
little consistency in access to information.
These variations can be attributed to several
factors, including the complexities of the Chinese
language and its varied transliterations. But it still
points to the fact that whatever companies may
say about being forced to block specic keywords
or URLs, there does not appear to be a single list.
That company X omits more results related to
‘freedom’ or ‘liberty’ than company Y seems to
be at least partly due to deliberate action on the
part of company X.
This is a pivotal issue for U.S. companies for two
reasons: because of their traditional strength in
search capacity; and, because such complicity in
censorship means that they are betraying values
that they claim to uphold.
But there are other options for search engines
companies. When Google discovered that an
uncensored service was unfeasible in China, it
withdrew to Hong Kong, thereby abdicating its
role as a primary censor. Results are now ltered
by the Great Firewall rather than Google’s search
platform. Placing the onus for censorship on the
Chinese government itself, rather than the corpo-
ration, is one alternative option.

How do search engine companies shape Chinese cyberspace?
Empirical studies have documented pervasive fltering across both domestic and foreign owned
search engines in China. Key fndings include:
Search engines are a powerfuI tooI. They have become the gatekeepers of the internet by
connecting users to online content. Search engines are also a formidable threat to countries that
restrict the information environment.
China's GoIden ShieId is pervasive but not comprehensive. Information can get through.
Search engines are the last checkpoint between users and content. Ìn order to service China, they
are required to obtain a license - and in order to obtain a license they are required to flter. But how
do they flter?
Chinese cyberspace is strictIy monitored. Search engine results are keyword-fltered and
websites are censored in accordance with Chinese policy. Government authorities closely
scrutinize foreign and domestic search engines in China.
Which way is the wind bIowing? Government offcials from the State Council Ìnformation
Offce frequently meet with top executives of service providers to anticipate upcoming fltering
Microsoft, Yahoo!, and Baidu yieId drasticaIIy different search resuIts. Search engine
companies create their own list of blocked sites and blacklisted key words by interpreting and
even anticipating Chinese government policy. This affords search engines considerable
fexibility and may result in over-blocking.
Search engines Iack transparency and accountabiIity. While search engines indicate when
content has been censored, the notifcations are vague and unstandardized, and the process
remains opaque.
Keyword bIocking poIicies within the Great FirewaII have varied over time. Some investiga-
tors suspect that a government-sanctioned blacklist does exist, although one has never surfaced.
They attribute the difference in search results across platforms, and even within platforms, to a
variety of factors including anticipated noise variation, particularities of the simplifed Chinese
script, different fltering methodologies and varying parameters around selecting which black listed
terms are indexed.
Sources: Clive Thompson. 2006. "Google's China Problem (and China's Google Problem).¨ New York Times. April 23, 2006;
Villeneuve, Nart. 18 June, 2008. "Search Monitor Project: Toward a Measure of Transparency.¨ Citizen Lab Occasional Paper
#1; Zhu, Tao, Christopher Bonk and Dan S. Wallach. 2011. "An Analysis of Chinese Search Engine Filtering.¨ Cornell Univer-
sity Library. 19 July 2011.
SecDev Analytics
Box 3.
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
1.3 Publicity and public order: Additional
Controlling the media
Online media and journalists are of particular
interest to the Chinese authorities – especially as
the job description has blurred over the past few
years. Bloggers and activists are now de facto cor-
respondents. The State Council Information Of-
ce’s (SCIO) Provisions on the Administration of
Internet News Information Services regulates the
content of news websites (another grey area). The
provisions include requirements for registration,
content, external government supervision, and
penalties. The violations are very broad, including
“harming the honor or interests of the nation.”

Such sweeping statements allow signicant inter-
pretative scope, empowering the government and
rendering users arbitrarily vulnerable. An indi-
vidual can almost always be found to be violating
the law in some sense, enabling the government
to arrest or punish them at will – despite the fact
that the Chinese constitution protects the right to
free expression, privacy, and academic research.

The SCIO also grants permission to create a
news information service. Stafng and nancial
requirements are stringent. SCIO and provin-
cial government information ofces have broad
supervisory authority. Financial penalties are stiff,
and infringing organizations can be shut down.
In February 2009, the ofcial China News Service
created a “blacklist” of journalists engaged in
“unhealthy professional conduct.”
National security
The crime of “harming the honor or interests
of the nation” is supplemented by the Law on
Guarding State Secrets, rst promulgated in 1989
and revised in 2010 to more comprehensively tar-
get Internet and telecommunications companies.
The revised law requires them to monitor, record
and delete content that leaks “state secrets,”
however broadly and ambiguously dened. It
demands full corporate cooperation with relevant
government agencies during investigations.
April revision overlaps with and reinforces the
“Administration of the Maintenance of Secrets
in the International Networking of Computer In-
formation Systems Provisions,” which came into
effect in January 2000. Pursuant to the Law on
Guarding State secrets, these provisions banned
the storage, processing, or transmittal of state se-
crets over the internet.
But critically for internet
service/content providers and search engines, in-
dividuals, corporations, and other organizations
one can be held “vicariously liable” for activities
that happen within their realms of “control.”

In sum, China’s system of control is pervasive
and aggressive, from a carefully set-up infrastruc-
ture at the top to rules, regulations and imposed
self-censorship among millions of end users. The
active complicity of search engines – the primary
gatekeepers of information - is an invaluable
censorship tool. In September 2011, the People’s
Daily (the main newspaper of China’s Commu-
nist Party), worried about the growing audience
and inuence of Twitter-like micro-blogging web-
sites, and urged further crackdowns on internet
freedom. “Internet opinion is spontaneous, but
increasingly shows signs of becoming organized,”
asserted a team of writers for the party’s top
theoretical journal, Qiushi (Seeking Truth). “Un-
less administration is vigorous, criminal forces,
hostile forces, terrorist organizations and others
could manipulate public sentiment by manufac-
turing bogus opinion on the internet, damaging
social stability and national security.”
The ques-
tion that remains for the rest of this document
is how Western companies can work within this
tight system and take advantage of business
opportunities without compromising their own
SecDev Analytics
Internet companies operate in a narrow space
between collusion and collision with the Chinese
government. The allure of the world’s largest pool
of internet users back-dropped by an information
environment overrun with state-imposed restric-
tions has corporations wrestling with their core
business practices.
Companies from all corners of the world face
similar problems. But many of the biggest players
are based in the United States. U.S. internet com-
panies operate under the scrutiny of Congress,
human rights groups, and international opinion.
Critics have alleged companies are failing to meet
international legal standards and self-declared
ethical obligations in their bid to comply with
local regulations. Many of the companies con-
cerned have taken refuge in the grey area between
national and international standards to justify
their defaulting to local compliance.
If internet companies do not acquiesce to Chi-
nese regulations, they risk losing their operating
license. At the same time, if they do not act in
accordance with U.S. and international laws and
norms, they risk losing their integrity, while their
Chinese users risk losing their freedoms, and in
some cases their lives. Corporations that prosper
in a democratic society have a responsibility to
refrain from abetting the repression of foreign
citizens for the sake of prots.
This section reviews a number of documented
case studies that are representative of the ethi-
cal dilemmas faced by U.S. companies working
in China. These companies have been selected
primarily because they are internet giants. They
wield tremendous power. While this report gives
search engines particular attention due to their
powerful role in censorship, the actions of com-
panies such as Skype and Cisco merit discussion
to demonstrate that the problem is more than
just search. The following narratives demon-
strate that with sufcient pressure, companies
have eventually come down on the side of ethical
business practices. The cases and controversies
examined in this section include:
1. Google: Concerns about its earlier decision
to offer a censored search engine,,
eventually led to its withdrawal from the
Chinese search market in 2010.
2. Yahoo!: Acquiesced without appeal to the
authorities’ demands to hand over private
user data, resulting in jailed dissidents,
lawsuits, and embarrassing apologies.
3. Microsoft - MSN Spaces and the
Bing-Baidu partnership: MSN Spaces
blocked entire blogs with no accord to
transparency or legal process. A new
partnership between Microsoft’s search
engine Bing and Chinese engine Baidu raises
concerns about censorship.
4. Skype: Despite assurances to the contrary,
upon partnering with TOM-Online, personal
user data and communications were agged
and stored on publicly accessible servers.
5. Cisco: An equipment manufacturer, Cisco
supplied hardware to China in order to aid
in the initial construction of the Golden
Part 2. Complicity:
U.S. Corporations in the Chinese Internet Market
SecDev Analytics
2.1 Google: “Don’t be evil;” Do make money
After struggling with the contradictions of a cor-
porate commitment to openness and the Chinese
practice of censorship, Google capitulated and
introduced a ltered search engine
in Mainland China in 2006. However, Google
found it increasingly difcult to justify a censored
presence in China and eventually withdrew its
operations in 2010. By so doing, Google became
a poster-child for ethical behavior – an example
of the notion that principles should trump prots.
From the get-go, Google demonstrated a
more ethically sound – though arguably naïve –
understanding of the challenges it faced in China
than many of its competitors. Its original business
motto “don’t be evil” and its corporate belief that
information is a powerful source of good put it
directly at odds with Chinese censorship

For several years Google operated outside of
China, meaning that while its search results were
censored by the Golden Shield, it did not have
to self-censor. But this proved to be a logistical
nightmare. The volume of queries that Google
had to service and the constricted physical in-
frastructure, which bottlenecked at three cable-
landing sites, eventually convinced Google that
boycotting a dedicated Chinese service was no
longer feasible.
In December 2005, China licensed Google as an
ISP. Google China went live on 27 January 2006,
headed by a renowned computer scientist, Kai-Fu
Lee, whom Google hired away from Microsoft
for $13 million.

Former Google CEO Eric Schmidt disclosed that censored thousands of keywords and
web addresses in accordance with Chinese laws.
Google admitted that it generated an internal
black list by studying the ltering habits of com-
petitors and Chinese authorities.

Despite its new .cn website, the company left its
global site in Chinese online – a decision which
proved controversial. Steven Levy reported
that in 2009, China’s top propaganda ofcer,
Li Changchun, searched for his own name on and found several critical comments.
The government demanded that Google remove
the link on directing users to the
global site – but company executives considered
the request to be a step too far, and refused to

Google initially argued that its censored services
were better than nothing,
saying later on that
their focus had “really been what’s best for the
Chinese people. It’s not been about our particular
revenue or prot or whatnot.”

Empirical testing at the time revealed that
Google was censoring less than its competitors –
according to one study, over 10% less than
Baidu and 5% less than Yahoo!.
Google’s practice of prioritizing approved local
content limited the user’s search experience and
exacerbated censorship.

Google’s complicity attracted acrimony at home.
Representative Jim Leach blasted Google as a
“functionary of the Chinese government,”

while his colleague Christopher Smith accused
them of “sickening collaboration” that was “de-
capitating the voice of the dissidents.”
waved placards outside the company’s Mountain
View, California headquarters.
Guo Quan, an
activist and former law professor, vowed to sue
Google for excising his name from search

At the same time, Google held some respectable
positions on other issues. In a strategy aimed
at minimizing its vulnerabilities in China and
mitigating potential ethical dilemmas, Google
maintained a policy against storing personal data
in China. Although it censored information, it
declined to turn over private data to the security
This prevented it from offering
Gmail, Blogger, or Picasa, and compelled it to
modify other services. The company also denied
its China-based workers access to its production
code, a key to creating new products.
However, as Google co-founder Sergey Brin said
in 2010, “Things started going downhill after
the Olympics…our other sites, YouTube and
whatnot, have been blocked. And so the situa-
tion really took a turn for the worse.”
unsuccessful discussions with the government,
who were “crystal clear…that self-censorship is
a non-negotiable legal requirement,”
withdrew from China rather than comply with its
onerous burdens on free speech and privacy.

Google closed its internet search service in China
and directed users to its uncensored search engine
based out of Hong Kong. The move infuriated
Chinese ofcials. Even so, Google retained a
sizeable workforce in China of 500 employees,
including its research and development team and
SecDev Analytics
a sales force. Google continues to operate online
maps and music,
and sells display ads to Chi-
nese companies.
China renewed Google’s ICP
license in 2011 allowing the domain
name to redirect users to its Hong Kong based
search engine, where results are not censored but
must pass through the Great Firewall.

2.2 Yahoo!: Going Native
Yahoo! was one of the rst foreign brands to of-
fer simplied Chinese language services in China.
Since entering the market in 1999, Yahoo! has
encountered signicant problems balancing the
demands of the Chinese government with expec-
tations of corporate social responsibility. This
came to a head in 2005, when Yahoo! complied
with a request by the Chinese government to
hand over full information related to the private
email correspondence of Chinese regime critics.
These dissidents were subsequently arrested and
Yahoo! was catapulted into the uncomfortable
limelight because its compliance was so readily
forthcoming: no questions asked, no deferral to
due process, and no respect for the privacy and
safety of its users. Most famously, Yahoo!
employees handed over all email-related
information of the Chinese editor, reporter and
poet Shi Tao, who had used his Yahoo! email ac-
count to communicate with the New York-based
group Democracy Forum.
His correspondence
on February 22, 2004 summarized a government
directive ordering media organizations to down-
play the anniversary of the 1989 crackdown.
Shi Tao was arrested for leaking state secrets and
imprisoned for ten years. The court documents
cited evidence obtained from Yahoo!. The com-
pany was also implicated in the arrest of three
other Chinese dissidents: Wang Xiaoning, Li Zhi
and Jiang Lijun.
Representative Christopher Smith had been fol-
lowing American internet operations in China
with keen interest and deplored their conduct. He
confronted the top executives of internet behe-
moths when he chaired a hearing entitled “The
Internet in China: A Tool for Freedom or Sup-
pression?” Representatives from Google, Yahoo!,
Microsoft and Cisco testied to the committee
and sustained scathing criticism.
Yahoo!’s reputation was further tarnished after
it came to light that its general counsel, Michael
Callahan, falsely testied that the company had
no knowledge of the facts surrounding the Shi
Tao case when they shared information with the
authorities. Representative Tom Lantos stated
that “a company of Yahoo!’s resources and
sophistication operating in the Chinese milieu
should have taken every conceivable step to
prevent the automatic compliance with a request
from the Chinese police apparatus.”

Congressional hearings coincided with a suit that
was led on behalf of dissident Wang Xiaoning
and two other plaintiffs against Yahoo! in the
United States under the Alien Tort Claims Act.

Arguably the plaintiffs would have lost the suit
under the stringent criteria required by the Act
and defense arguments that the U.S. justice sys-
tem did not have jurisdiction. Nevertheless, under
the weight of public opinion and political pres-
sure, Yahoo!’s executives personally apologized to
the families, committed to securing their freedom
and settled the case for an undisclosed amount.

The experience clearly took its toll on Yahoo!. In
an effort to forestall future crises, Yahoo! bought
a 40% stake in China’s biggest e-commerce rm
Alibaba for one billion dollars and consolidated
its subsidiaries. As of October 2005, Yahoo! had
effectively transferred operational and compli-
ance responsibilities for its China operations to
Alibaba and retained only one of four board

2.3 Microsoft: MSN Spaces and the Bing-Baidu
Microsoft has encountered dilemmas in China
on multiple fronts, particularly with its MSN and
search engine services. In line with its contempo-
raries, MSN has obligingly ltered and removed
online blogging content at the government’s
request. After sustaining a barrage of negative
publicity for this decision, Microsoft announced
a partnership with Chinese search engine giant
Baidu and popular Chinese networking site Ren-
Ren. These joint ventures raise concerns about
Microsoft’s commitment to user privacy and ac-
cessible online content.
Microsoft has invested millions in China over
the years, and has played a critical role in devel-
oping the country’s software industry over the
past decade.
After establishing a joint venture
with Shanghai Alliance Investment Ltd. (SAIL),
Microsoft launched an online Chinese portal in
Like Yahoo!, Microsoft readily complied
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
with government requests to block online content
without any measure of transparency or account-
ability. In contrast, however, there is no evidence
of MSN China handing over personal user details
– an important distinction worth noting.
The corporate decision to unquestionably comply
with government regulations created shockwaves
both within and outside of the Great Firewall.
The controversy centered on MSN China’s free
blogging platform called MSN Spaces. In ve
months, MSN Spaces quickly overtook the suc-
cessful domestic blogging site Bodee to become
the most popular platform. Users preferred its
technically superior software and its integration
with Microsoft’s instant messaging service. But
most importantly Chinese bloggers believed this
platform was less heavily censored.
Unlike other platforms that ltered entire blog
entries, MSN Spaces limited ltering to blog titles
and the individual titles of blog posts. “Offend-
ing” entries could still be posted. But as it turned
out, these could cause the entire blog to be shut
down within days.

In 2005, Microsoft shut down the popular blog
belonging to cutting-edge reporter Zhao Jing,
written under the pseudonym Michael Anti.
Human rights groups were especially galled at
Microsoft’s immediate and unquestioning compli-
ance, given that there was no clear legal process
Called before Congress to testify and criticized
by rights groups, Microsoft launched an internal
review of its censorship policy. It announced that
MSN China would only censor blogs on receipt
of a legally binding order and would indicate that
a blog has been censored in accordance with
government restrictions. These blogs would
remain universally accessible outside of China.

Human Rights Watch reports that politically
sensitive MSN Spaces blogs have remained online
following this policy shift, but cautions that the
issue should be closely monitored.
Microsoft’s relationship with China came to the
fore more recently in July 2011, when its search
engine Bing announced its partnership with
China’s largest search engine, Baidu. English
language queries made on the Baidu platform
will be redirected and attributed to Bing. Presum-
ably, results will be ltered according to Chinese
government standards and in line with the stricter
ltering practices employed by Baidu,
the terms of the agreement were not disclosed.

The partnership with Baidu is opportune for Bing
given the withdrawal of Google from main-
land China. Baidu has also expressed interest in
reaching foreign markets, a move which could
be facilitated by the new partnership.
A Micro-
soft spokeswoman said, “Microsoft respects and
follows laws and regulations in every country
where we run business. We operate in China in
a manner that both respects local authority and
culture and makes clear that we have differences
of opinion with ofcial content management poli-

It is prudent to be skeptical about Microsoft’s
ability to determine content parameters yielded
by queries on a shared Bing-Baidu platform.
Baidu currently owns 76% of China’s search
engine market.
It is obviously Beijing’s preferred
market leader and some have proffered that it
enjoys unofcial government sponsorship.
joint American-Chinese venture of this kind is
going to encounter a host of challenges related to
the freedom of information.
There will be plenty of opportunities for scrutiny
regarding Microsoft’s position on user privacy
and freedom of information in China, as it con-
tinues to expand in new areas. In August 2011,
MSN and RenRen signed a deal to cooperate on
instant messaging and social networking.
same month, Microsoft signed a cloud comput-
ing agreement with state-owned China Standard
Software Company, the country’s leading Linux
operating system provider.
It is adding between
300 and 400 research and development staff to
its currently 3000-strong workforce in China in
support of these new initiatives.
Microsoft executives have announced that the
company will focus on improving its suite of
products with a focus on cloud computing, search
and advertising. They will be investing heavily in
consumer products, particularly its smartphone
platform. Given the uptake of mobile devices in
China, Microsoft is also hoping to gain traction
with its strategic partnership with Nokia.
all, Microsoft is positioning itself for growth, and
inevitably for more ethical dilemmas as it
expands into these new sectors.
SecDev Analytics
2.4 Skype: Breaching trust
In China, the 3.1 million users of TOM-Skype
(Voice Over Internet Protocol Software) have had
their communications and personal user details
surveilled, ltered and stored on public servers.
Recently acquired by Microsoft, Skype has sus-
tained widespread criticism for its operations in
China, which also includes keyword ltering.
In November 2004, Skype launched a version
of its online voice and chat system developed
in partnership with TOM Online Inc., a Hong
Kong-based company. This version, tailor-made
for the Chinese market, prevented users from
sending text messages with banned phrases like
“Falungong” and Dalai Lama.
By 2005, with
3.1 million users, China was Skype’s third largest

Skype’s CEO Niklas Zennstrom readily disclosed
that “TOM had implemented a text lter, which
is what everyone else in that market is doing.”

But he insisted that the privacy and security of
users were never compromised.
In 2006, Skype
assured TOM-Skype users that:
º 1le rexr nlrei uoes nor aííecr in any vay
the security and encryption mechanisms of
º Iull enu-ro-enu secuiiry is µieseiveu anu
there is no compromise of people’s privacy.
º Calls, clars anu all orlei íoims oí
communication on Skype continue to be
encrypted and secure.
º 1leie is aLsolurely no nlreiing on voice
Behind the scenes, things were murkier. A
detailed investigation of log les across eight
servers in 2008 revealed that TOM-Skype
violated every assurance it had made to its users
in 2006.
The entirety of chat messages passed
over the TOM-Skype platform had been upload-
ed and stored on servers if agged keywords were
detected. These messages were accompanied by
user details, such as IP addresses and usernames.
Most damaging were the log les that recorded
caller information, such as date, time and recipi-
ent phone number. All of these details were stored
on insecure public servers along with the associ-
ated encryption key.
Analysts suspect that surveillance was not exclu-
sively based on keyword technology. Many of the
agged words were too common to be ltered
across the platform. They hypothesize that
ltering criteria may have included specic user-
names and TOM-Skype accounts, which suggests
much more targeted surveillance practices.

Despite cooperation with the government, TOM-
Skype’s future in China became uncertain at the
end of 2010. In January 2011, the Ministry of
Industry and Information Technology announced
that “all VOIP phone services are illegal on the
Chinese mainland, except those provided by
telecommunications carriers China Telecom and
China Unicom.”

This announcement was followed with confu-
sion and bureaucratic wrangling. Unfazed, Skype
assured customers in February that it was still
operating through its majority Chinese partner,
TOM Online.
That seems to be the case today.
It is prudent to consider whether Chinese restric-
tions against foreign operated VOIP services may
have had more to do with co-opting the market
for Chinese companies than security concerns.

Microsoft’s acquisition of Skype in May 2011
for $8.5 billion USD may affect the TOM-Skype
partnership due to Microsoft’s joint venture with
Baidu. Its future remains to be seen.
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
2.5 Cisco: Selling Surveillance
Cisco is unique among these case studies, in that
it sells hardware to the Chinese government.
Routers have many purposes, from parental
controls to ltering online child pornography.
They are designed to control online content, and
there are many legitimate applications for Cisco
products. Nevertheless, irrefutable evidence has
surfaced that Cisco hardware is a critical compo-
nent of China’s online surveillance system.
Cisco has been heavily engaged in China since
1998 when it secured a major contract with tele-
communications company CHINANET to help
build the Golden Shield.

In 2002, an internal Cisco presentation was
leaked, detailing the mechanisms and motivations
behind The Golden Shield Project. A particularly
damaging slide describing a Public Network
Information Security Monitor System feature
revealed the extent of Cisco’s complicity. It cited
“combat ‘Falun Gong’ evil religion and other hos-
tilities” as one of three objectives in creating the
Golden Shield.
The slides immediately follow-
ing outlined business opportunities this contract
would entail, including high starting point, high
standard construction, technical training, and
security, operation maintenance.”

According to journalist Ethan Gutmann, based
on discussions with an unnamed top Chinese
engineer, Cisco developed a router device, an
integrator, and a special rewall box specically
for government censorship. These were sold
to China at a signicantly discounted price.

Cisco insists that it did not tailor its products to
Chinese government specications, but the leaked
presentation, along with journalistic accounts,
suggest otherwise.
This surveillance system, some have contended,
has grown into the “policenet,” recording a vast
amount of personal information such as work
history, personal relationships, political tenden-
cies, surng activity, and email for at least sixty
days. The system is portable and accessible to law
enforcement throughout China.

David Zhou, a systems engineer manager at
Cisco HQ, said, “We don’t care about the
[Chinese government’s] rules. It’s none of Cisco’s
business,” and admitted that, “We have the
capability to look deeply into the packet.”

Simply put, Zhou revealed that Cisco’s routers
can intercept information and essentially render
the entire Chinese web keyword searchable. He
also disclosed that Cisco reported to State
Security, the Public Security Bureau and the
People’s Liberation Army but wouldn’t say
whether Chinese authorities were given access
to these surveillance capabilities.

Cisco continues to be closely partnered with the
Chinese government. In 2007 it unveiled a plan
to invest $16 billion dollars over the next three
to ve years, in consultation with the Chinese
government, to boost the country’s social,
economic and environmental performance. The
program involves signicant investments into
Web 2.0 technologies, and reaches out to small
and medium sized companies through its business
partner Alibaba.
In addition to nancing vo-
cational training centers to teach network skills,
and investing $17.5 million dollars into Alibaba
as part of its IPO, Cisco is making $400 million
dollars available in nancing to the Chinese gov-
ernment to buy Cisco equipment.

Another recently announced project, “Peaceful
Chongqing,” is slated to be China’s most exten-
sive video-surveillance initiative, with half a
million video cameras designed to cover nearly
400 square miles. Cisco has allegedly been
awarded the contract to supply the necessary
routing equipment to operate a sophisticated
video surveillance network. The objective of
Peaceful Chongqing clearly goes beyond trafc
control and into the realm of law enforcement.

Although it is unclear whether Cisco’s participa-
tion has been secured, the prospect of Western
companies contributing to this dual-hatted
scheme is in direct contravention of the Tianan-
men sanctions,
which suspended export licenses
for crime control and detection instruments and

Since 2002, two cases have been brought against
Cisco Systems which are intended to set legal
precedent for corporate social responsibility in
this sector.
The rst complaint, Du v. Cisco
being tried in the United States District Court
of Maryland, alleges that Cisco knowingly and
actively collaborated
with the Chinese govern-
ment and customized its products to facilitate
surveillance and censorship, which has resulted
in gross human rights violations. The plaintiffs
argued that the defendants sought to maximize
their prot share in the Golden Shield Project,
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
while fully cognizant of the resulting human rights
violations. The plaintiffs maintain that Cisco’s
participation in the creation, expansion, and main-
tenance of the Golden Shield Project has rendered
them responsible for the human rights violations
that have occurred under its jurisdiction.

A second case, led by the Human Rights Law
Foundation, seeks a class-action status on behalf
of Falun Gong members. The plaintiffs accuse
Cisco of knowingly providing Chinese government
agencies with equipment to identify, incarcerate,
torture, and sometimes kill Falun Gong members.

2.6 Having their cake and eating it too
As the case studies show, China is a hard nut to
crack. Complying with local regulations is evi-
dently a necessary part of doing business in any
jurisdiction. However, if those local regulations
contravene commonly held and even self-declared
values, this signals a problem. Companies are
clearly struggling with how to navigate the
censorship terrain while staying competitive at the
same time. But as the nal section of this report
aims to show, there is little recourse – be it
national or international, voluntary or binding – to
control or offer guidance for behavior.
SecDev Analytics
U.S. internet companies in China do not have an
easy ride. The competition between economic
interests and the protection of human rights is
a crucial – and controversial – issue. As Google
discovered before their eventual withdrawal from
the country, they were unable to operate legally in
China without censoring results.
Quite aside from Chinese regulations, U.S.
companies must also take into account U.S.
and international law, in addition to a litany of
non-binding principles and initiatives, as well as
reasonable ethical standards. In addition,
businesses themselves often have signed
statements supporting freedom of expression and
protection of privacy.
While U.S. corporations
cannot change Chinese law, they do have a
responsibility to respect the rules, regulations,
and values of their home base.
The real challenge lies in realistically and ad-
equately translating these norms concerning
freedom of expression, privacy, and human rights,
into actionable policies. Remaining a competitive
player in such an inuential and large market is
undoubtedly important. But so too is ensuring
that operations are conducted ethically and in
line with national and international obligations.
In this section, we examine four sources that
bear on U.S. internet companies and discuss
why thus far they have failed to address
operating challenges in China:
1. U.S. policy as articulated by Secretary of
State Hillary Rodham Clinton and
enshrined in the May 2011 International
Strategy for Cyberspace: Although
current policy U.S. policy is a valuable
and admirable step, there has been scant
concrete action. Voluntary codes of
conduct have so far accomplished little.
2. Relevant U.S. statutory and case law that
may afford remedies to aggrieved parties
against companies who aid and abet
abuses: U.S. courts have found that current
statutes do not apply to corporations,
meaning that the worst legal repercussion
for a corporation is a bruised ego
3. Internationally recognized legal principles:
These boil down to commonly held ethical
values and suggested positions that are
ultimately unenforceable and subject to
broad interpretation.
4. Proposed legislation that attempts to
address the challenges that this paper
raises: While this is a potential partial
remedy, it remains to be seen whether it
will pass. Previous iterations have stalled.
Below we aim to show that the existing norms
and legislation are inadequate with respect to
U.S. corporations doing business in China in
general, and internet companies in particular. The
combination of inaction, widely varying inter-
pretations, and a myriad of formal caveats and
reservations has rendered the legal and policy ter-
rain unnavigable. But the onus is not just on the
government. Businesses themselves must make an
active choice to behave responsibly.
Part 3. Current policy and legal measures
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
3.1 Locutions of liberty: U.S. policy
The U.S. is at the global forefront of states
supporting freedom of expression online.
In January 2010, Secretary of State Hillary
Rodham Clinton aligned Franklin Roosevelt’s
classic Four Freedoms –- freedom of speech,
freedom of religion, freedom from fear, and
freedom from want –- with a fth freedom to
‘connect’, i.e. the freedom of expression,
assembly and association online.
Secretary of state Clinton tied the internet to
traditional forms of freedom of expression: “this
freedom is no longer dened solely by whether
citizens can go into the town square and criticize
their government without fear of retribution.
Blogs, emails, social networks and text messages
have opened up new forums for exchanging ideas
and created new targets for censorship.”

Clinton also emphasized the tension with China,
stating that: “…we look to the Chinese authori-
ties to conduct a thorough review of the cyber
intrusions that led Google to make its announce-
ment. And we also look for that investigation and
its results to be transparent.
“The internet has already been a source of
tremendous progress in China, and it is fabulous.
There are so many people in China now online.
But countries that restrict free access to informa-
tion or violate the basic rights of internet users
risk walling themselves off from the progress of
the next century.”

In February 2011, she reiterated the earlier call
for a global commitment to internet freedom and
the protection of human rights online – this time
emphasizing “protecting both transparency and
condentiality… in addition to being a public
space, the internet is also a channel for private
communications. And for that to continue, there
must be protection for condential communica-
tion online.”

Importantly, Clinton acknowledged that the
U.S. itself restricts certain kinds of speech in
line with law and international obligations, but
asserted that such enforcement was transparent
and was subject to appeal. While this did not
assuage all critics, the emphasis on transparency
and accountability is undoubtedly lacking in the
Chinese context.
Building on these seminal speeches, the United
States released its foreign policy on cyberspace,
International Strategy for Cyberspace: Prosperity,
Security and Openness in a Networked World,
afrming the U.S. “core commitments to funda-
mental freedoms, privacy, and the free ow of
information.” The strategy outlines a framework
for achieving its policy priorities of openness,
security, reliability and interoperability in cyber-

With this in mind, current policy pronounce-
ments are commendable. Clinton’s speeches hit
points of crucial importance, emphasizing the
impact that freedom of access has on progress
and competition – as well as the importance of
protecting privacy.
SecDev Analytics
3.2 Tools to implement U.S. policy: Voluntary
Despite White House support for online freedom
of expression, the tools, rules, and regulations
that put policy into practice or hold U.S. citizens
or corporations accountable for human rights
abuses are wanting. Voluntary codes have been
rather unsuccessful and existing statutory au-
thority is limited. Proposed legislation to protect
freedom of connectivity remains in the drafting
stage, while earlier efforts to move similar
legislation forward have stalled.
The Global Network Initiative (GNI) – a U.S.-
dominated coalition of stakeholders including
Microsoft, Yahoo!, Google, and several academic
and civil society groups – is one example of a
voluntary code that may prove useful. It aims to
provide “a systemic approach for companies
facing government requests to protect the rights
to freedom of expression and privacy of their
users while respecting legitimate government
Ultimately, the GNI hopes its
principles will become a shared standard for
technology companies and stakeholders.
Independent monitors are to produce written
evaluations of each company’s implementation
of GNI’s principles (which include freedom of
expression, privacy, responsible company deci-
sion-making, multi-stakeholder collaboration,
accountability and transparency). The evaluations
will report on corporate responses to govern-
ment demands that contravene the principles of
free expression and privacy. Their objective is to
document case studies so as to determine the ef-
cacy of various approaches.
The reports are likely to prove interesting, edu-
cational, and even persuasive. However, as they
have no legal traction and incur no consequence
for corporations who violate core principles, they
are unlikely to represent a robust solution to the
challenges outlined in this paper.

Proposed voluntary agreements by companies to
respect codes of conduct may be effective in en-
couraging a shift in ethos. But thus far, there is no
evidence as to how effective they will be. Likely, a
more robust accounting and consequence system
is required.
3.3 The American way: Statutory remedies
There are effectively no repercussions for cor-
porations acting against U.S. and international
norms. In other words, there is currently no con-
crete reason for companies to act with reasonable
ethical standards except for a corporate con-
science. But conscience-driven decision-making
has been elusive.
Aggrieved plaintiffs seeking relief for human
rights abuses resulting from activity online
have invoked two federal statutes: the Alien
Tort Statute (ATS)
and the Torture Victim
Protection Act (TVPA).
Despite the existence
of ongoing litigation, no case law currently
supports the conclusion that either of these
statutes applies to companies such as Yahoo!,
Microsoft, Google, Skype, or Cisco. There is
no statute that provides meaningful relief to a
plaintiff for damages incurred as a result of
corporate complicity in human rights abuses.
Turning over private information that leads
to arrest, torture, imprisonment or death,
or complicity in limiting freedom of expression
– or, as Clinton phrases it, freedom to connect –
is not punishable in an American court.
Alien Tort Statute
The ATS allows U.S. courts to hear human rights
cases brought by foreign citizens for abuses
conducted outside of the United States. However,
it has proved legally tortuous to apply to specic
claims for relief. The only recent U.S. Supreme
Court decision to interpret the statute is Sosa v
Alvarez-Machain, 542 U.S. 692 (2004).
The court explained that the ATS provided juris-
diction to hear cases but did not create a cause of
action. It also rejected the International Covenant
on Civil and Political Rights (ICCPR), the Uni-
versal Declaration of Human Rights (UDHR) and
the UN Charter as legally enforceable, particular-
ly given that the U.S. only ratied the Covenant
on the condition that it was not self-executing.

It suggested that claims made under the ATS must
violate a norm of customary international law
so well-dened that it requires the creation of a
federal mechanism to deal with them – a point on
which Alvarez failed.
A further issue with the ATS is that its applica-
tion to corporations is tenuous at best. While
it has been invoked in lawsuits, in the case of
Kiobel v Royal Dutch Petroleum, 621 F.2d 111
(2nd Circuit 2010), the Second Circuit held that
corporations cannot be held liable for violations
SecDev Analytics
of customary international law: “that corpora-
tions are liable as juridical persons under domes-
tic law does not mean that they are liable under
international law (and therefore, under the ATS).”
Rather, individual liability had been limited to
“natural” persons.
In Presbyterian Church of Sudan v Talisman
Energy, Inc., the Second Circuit imposed a higher
standard of pleading in their dismissal of the
complaint, requiring that the “mens rea standard
for aiding and abetting liability in Alien Tort
Statute actions is purpose rather than knowledge
alone.” In non-legalese, this means that abuses
must be intentional in order to qualify under the
ATS. The court determined that in order to show
that a defendant aided and abetted a violation of
international law, a complainant must prove that:
1. the principal violated international law
2. the defendant knew of the specic violation
3. the defendant acted with the intent to assist
that violation, that is, the defendant
specically directed his acts to assist in the
specic violation
4. the defendant’s acts had a substantial effect
upon the success of the criminal venture
5. the defendant was aware that the acts
assisted the specic violation.
The court found no evidence that Talisman acted
with the purpose of advancing the Sudan Govern-
ment’s human rights abuses. That is a standard
that the plaintiffs who have sued Yahoo! and
Cisco might well surmount. Nevertheless, the
issue of the lack of applicability of the ATS to
corporations remains a stumbling block.
The Torture Victim Protection Act
The Torture Victim Protection Act also affords no
relief against companies. In Bowoto et al v Chev-
ron Corporation et al, 621 F.2d 1116 (9th Circuit
2010), the plaintiffs took over an oil platform op-
erated by Chevron Nigeria Limited off the coast
of Nigeria. The court found that the TVPA did
not render the corporation liable for the deaths of
two protesters. The key is that the statute states
that “individuals” are liable
- and accordingly
the Ninth Circuit found that Congress “intended
that only natural persons, and not corporations
should be found liable under the Act.”
There are no real alternatives to these two
statutes. Without relevant legislation, companies
cannot be held legally accountable for violating
human rights abroad. Currently, the worst result
is a damaged public image – which generally gets
resuscitated fairly speedily.
3.4 We are the world: International principles and
Despite the plethora of international initiatives,
positions, and statements concerning the inter-
net, freedom of expression, and corporate social
responsibility, there is a distinct lack of binding
commitments in any arena. Broad, sweeping
statements make for powerful rhetoric, but do
not provide for specic action.
The U.S. Supreme Court enumerated appro-
priate sources of international law in United
States v Smith, 18 U.S. (5 Wheat.) 153, 160-161
(1820): the law of nations “may be ascertained
by consulting the works of jurists, writing pro-
fessedly on public law; or by the general usage
and practice of nations; or by judicial decisions
recognizing and enforcing that law.” Although
international principles are in general difcult to
enforce in U.S. courts (and indeed, the majority
of those discussed below are not legally binding)
they demonstrate the international community’s
position on the issue of censorship, freedom of
expression online, and corporate responsibility.
In general, they contrast strongly with the efforts
of the Chinese authorities to block access to in-
formation. But rules and principles can be applied
so broadly that they become essentially vacuous
and meaningless. The U.S. should not follow
suit. They should pay attention to international
opinion and review existing laws and regulations
accordingly, taking informed action that aims to
deter corporations from engaging in conduct that
abuses or runs contrary to those precepts. These
norms support new thinking and action by the
U.S. to vindicate accepted standards of law for
free expression and privacy, while continuing to
enable the protection of national security.
The following is in no way intended to be a com-
prehensive survey of international standpoints,
but rather some brief examples of where action
has been suggested or undertaken. It discusses:
United Nations statements that can be applied to
censorship and privacy; the UN Global Compact,
an initiative aimed at securing corporate social
responsibility; and, the 2011 eG8 meeting.
United Nations statements
There are several UN statements concerning the
importance of upholding the rights to freedom of
expression and privacy, and standards of con-
duct for companies. These include the: Universal
Declaration of Human Rights (UDHR);
International Covenant on Civil and Political
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Rights (ICCPR);
the International Covenant for
Economic, Social and Cultural Rights
UN Norms on the Responsibilities
of Transnational Corporations and other Enter-
prises with Regard to Human Rights;
and, com-
mentary on the UN Norms, adopted by the UN
Sub-Commission for the Protection and Promo-
tion of Human Rights.
The rst three items and two Optional Proto-
comprise the International Bill of Human
Rights. While the ICCPR and ICESCR are both
treaties, the Universal Declaration is non-binding.
However, there are some overlaps: for instance,
ICCPR echoes UDHR Article 12, stating that “no
one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or cor-
respondence.” The Organization for Security and
Cooperation in Europe (OSCE) recently released
a report on internet freedom that referenced Ar-
ticle 19 of both the ICCPR (including that “every-
one shall have the right to freedom of expression;
this right shall include freedom to seek, receive
and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing,
or in print, in the form of art, or through any
other media of his choice”) and UDHR as the key
international norms that nations should comply
with to protect media freedom and freedom of
expression online.

The United Nations Human Rights Commission
requires that any restriction on the freedom of
expression satisfy a three-part test: i) be provided
by law; ii) be required for the purpose of safe-
guarding a legitimate interest noted in Article 19
of the ICCPR; and iii) be necessary to achieve the
China would likely consider that ‘legiti-
mate interest’ – in particular, 19(iii)(b) concerning
the protection of national security or of public
order – provides for its policy of online censor-
ship. It could be argued, albeit at a consider-
able stretch, that all of the seemingly innocuous
blocked content constitutes a national security
threat and is therefore a legitimate concern,
eligible for exemption from the principles of free
expression. Common sense says otherwise.
China signed but did not ratify the ICCPR while
the U.S. both signed and ratied it in 1992.
Nevertheless, amongst several additional
reservations and declarations,
the U.S. Senate
imposed a declaration that “the provisions of
Article 1 through 27 of the Covenant are not
self-executing.” This lack of potential for action is
compounded by the broad scope of the UN
statements. The statements hold undoubtedly
huge importance and form the basis of shared
values, but those values are so general that they
are relatively easy to satisfy or justify. In practice,
they present few restrictions on conduct, particu-
larly as they precede the internet by quite some
time and hence do not take into account the po-
tential issues that come with such a special case.
UN Global Compact
Established in July 2000, the UN Global Com-
pact (UNGC) is a non-binding voluntary in-
ternational initiative that attempts to promote
corporate social responsibility via a common
policy framework of ten principles, including
safeguarding human rights.
Companies from
any industry worldwide may join, except if they
are sanctioned or blacklisted by the UN for ethi-
cal reasons, or manufacture cluster bombs and
Those companies that sign up must
fulll several expectations, including a mandatory
annual disclosure (known as a Communication
of Progress, or COP) of their progress in pursuit
of UN goals to their stakeholders. If a participant
does not complete the COP, they are downgraded
in status and after two years are de-listed and ef-
fectively publicly shamed by the UNGC.
As of 1 September 2011, there were 416
participating U.S. companies, the rst of whom
were Nike and Deloitte. Technology companies
who are part of the compact include Cisco, HP,
Microsoft, and eBay (who failed to submit a COP
in 2010). Although well-intentioned, the Global
Compact does not police companies or provide
legally enforceable standards of behavior – rather,
it is a platform to encourage respect for its

In May 2011, an eG8 meeting preceded the
Deauville G8 summit. This marked the rst time
that private sector actors and civil society groups
working with the internet met in the context of
the G8. The eG8 was designed to be a multi-
stakeholder, consultative method to develop
norms and policies for internet governance.
The G8 host, French President Nicolas Sarkozy,
drew widespread criticism for a speech at the
meeting named “Civilize the internet,” arguing
that governments should intervene to regulate the
internet instead of simply protecting its openness.
He suggested that the internet should respect the
values and rules of each nation state. While cer-
tainly not a nonsensical statement, at one end of
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
the spectrum it counteracts the idea of the inter-
net as a kind of global commons and open space.
Ars Technica criticized the speech for its pater-
nalistic tone, and in an article wondered whether
“civilization” was in fact a code for “regulations
favorable to big business and the national secu-
rity state.”
The executive chairman of Google,
Eric Schmidt, warned against Sarkozy’s message,
saying that “the internet is the greatest force for
good in the world. She should not have prema-
ture regulation ahead of innovation.”

The G8 Declaration concerning Renewed
Commitment for Freedom and Democracy,
released at the conclusion of the Deauville sum-
mit, devoted signicant attention to internet
policy issues. The nal statement characterized
the internet as a lever for economic development
and an instrument for political liberty and eman-
cipation, stating that “arbitrary or indiscriminate
censorship or restrictions on access to the internet
are inconsistent with States’ international obliga-
tions and are clearly unacceptable.”

This statement is an important reference point for
the issues raised in this paper. However, the dec-
laration’s support for internet openness does not
sit easily with other aspects, including the state-
ment’s emphasis on the protection of intellectual
property and the need for increased government
regulation as well as certain G8 members’ domes-
tic cyber security policies.

3.5 Transmission delay: The proposed Global
Online Freedom Act
Legislative attempts to exert some control over
business operations in countries with internet re-
strictions have remained in limbo in Washington.
The U.S. has not hesitated to exercise jurisdiction
over citizens for conduct abroad. For instance,
the Foreign Corrupt Practices Act provides severe
penalties for paying commercial bribes.
Comprehensive Anti-Apartheid Act of 1986
banned all new U.S. trade and investment in
South Africa and motivated Europe and Japan to
impose similar sanctions.
To date, there is no
parallel legislation that relates to the internet.
The most important move towards binding
U.S. legislation that would cover the conduct
of U.S. internet companies operating abroad is
the Global Online Freedom Act. Representative
Christopher Smith rst introduced the Act in
2006, when it drew limited traction. In 2011, he
introduced a revised version – and at the time of
writing is expected to introduce a further itera-
tion of the bill.
The bill aims “to prevent United States businesses
from cooperating with repressive governments in
transforming the internet into a tool of censor-
ship and surveillance, to fulll the responsibility
of the United States Government to promote
freedom of expression on the internet, to restore
public condence in the integrity of United States
businesses, and for other purposes.”
The bill
emphasizes that to the extent that “a United
States business empowers or assists an authori-
tarian foreign government” in restricting online
access to identied U.S. government websites,
U.S. government-supported websites, or to
“identify individual internet users,” such business
is deemed to be “working contrary to the foreign
policy interests of the United States.”

The current bill empowers the Secretary of State
to designate – after consultation with the Secre-
tary of Commerce – “internet-restricting” coun-
tries, i.e. those whose governments are “directly
or indirectly responsible for a systematic pattern
of substantial restrictions of internet freedom
during any part of the preceding 1-year pe-
Other key provisions envisioned include
annual country reports on human rights prac-
tices, reports on trade-related issues that arise
due to government censorship or disruption of
the internet, protecting U.S. content providers
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
from malicious attacks, and measures to require
U.S. listed companies to disclose to the Securities
and Exchange Commission their human rights due
diligence with respect to policies on the collection
and sharing of personally identiable information,
information on blocking, or restriction of informa-
tion online.
Finally, an interesting provision concerns export
controls for internet-restricting countries, with
the current drafted intention being that if a U.S.
company is exporting hardware or software that
can be used for surveillance, tracking, blocking etc.
to an internet-restricting country, then a red ag
is raised with respect to exports to all end users in
that country. All exports to law-enforcement end
users in internet-restricting countries will require
an export license, with a presumption of denial for
the license. It is expected that this section will be
amended to provide more specic details.

The Act has not been nalized. It does however ap-
pear to fall neatly in line with the Obama adminis-
tration’s policy. Its journey has thus far been – and
remains – uncertain. Discussions concerning the
provisions of the bill and its potential implementa-
tion will be enormously worthwhile in encouraging
dialogue on these issues. It will be interesting to see
if Secretary Clinton, President Obama, and Con-
gressional leaders eventually get behind the bill and
secure its passage.
If a promising version of the
bill is passed, it will be a step in the right direction.
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
What is to be done: To new beginnings and new behavior
A new approach is needed. The U.S. government
and U.S. corporations have an opportunity to
lead the world by putting into practice legislation
and policies that ensure that businesses operat-
ing abroad are accountable both to their foreign
customers and to their home country. There are
no simple or straightforward solutions. But
more of the same will incur damage beyond the
reputations of the U.S. corporations or the U.S.
government. It risks the future of cyberspace as
an enabler of human development and economic
This report has attempted to outline some of the
complexities involved in balancing ethics and
prots. It also ags some of the possibilities that
can be found in law and self-regulation. The
research is not sufcient to map out a compre-
hensive strategy. But it is possible to offer prelimi-
nary recommendations:
Better behavior when faced with ethical
challenges ultimately stems from a shift of
ethos and attitude by corporations. But to
date, voluntary codes have not served to
change behavior. In the absence of any
honest change of heart, formal commit-
ments would at least provide a sense of
direction. Compromising values has caused
unwanted and perhaps unexpected damage
to the reputations of some of the largest and
most successful companies in the world.
China is a market that presents substantial
opportunities – but companies must not
continue to be unguardedly opportunistic.
States needs to adhere to its image as a
proactive nation founded on valuing
freedom instead of one whose greatest
exports transgress U.S. commitments under
domestic U.S. law, and contravene U.S.
commitments to UN covenants and
conventions. This does not mean continu-
ally forcing the imposition of values: it is
unrealistic and not the place of the U.S. or
any other country to directly force changes
in Chinese law. It means ensuring that
corporations operate within sensible
boundaries. Such boundaries can be drawn
by legally enforceable, binding, specic
commitments – and it is here that policy
makers, legislators, and corporate leaders
have a chance to step up and embrace the
preserved. The emergence of the internet
and its expansion to encompass almost
two-thirds of humanity has led to a parallel
expansion in human choice. The world’s
knowledge is now accessible on-line and
nearly everywhere. New industries and
sources of prosperity have been created.
Political lines have been redrawn and
redened. People have become empowered.
Their local voices can be heard across the
globe in real-time. This is now at risk unless
the emerging norms that accept the
legitimacy of national censorship regimes
and other controls that attempt to restrict
the internet are challenged.

SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
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3 Ministry of Ìndustry and Ìnformation Technology of
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7 Cheung, Anne S.Y. 2006. "The business of governance:
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Telecom; UNÌNET, which is owned by China Unicom; CNC-
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Also see: China Internet Network Information Centre.
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Da Hu Lian Wang Dan Wei Jian Jie).
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8 Although China Telecom has announced that it will switch
on its fourth terrestrial cable linking Europe and Asia in the
next few months, indicating that connections may have
multiplied. See: Wood, Nick. 2011."China Telecom to light
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31 August 2011.
9 Fallows, James. 2008. "The connection has been reset.¨
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10 Thompson, Clive. 2006. "Google's China Problem (and
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11 Details are found in the case-study, in Part 2.5 below.
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more routers.” Wired. 20 May 2008.
12 Goldsmith, Jack and Wu, Tim. 2008. Who Controls the
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14 Hu, Marty. 2011."The Great Firewall: a technical
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(accessed September 2011).
16 Chao, Loretta and Dean, Jason. 2009. "Chinese delay
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(accessed September 2011).
17 Cheung, Anne S.Y. 2006. "The business of governance:
China’s legislation on content regulation in cyberspace.”
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18 Harwit, Eric and Clark, Duncan. 2001. "Shaping the
Internet in China: Evolution of Political Control over Network
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Collusion and Collision:
Searching for guidance in Chinese cyberspace
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19 Ìnternet Society of China. 2002. Public Pledge of Self-
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htm (accessed September 2011).
20 Ìnternet Society of China. 2007. Convention on Blog Ser-
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21 Ibid
22 Buckley, Chris. 2011. "China state paper urges Ìnternet
rethink to gag foes.” Reuters. 2 September 2011.
23 MacKinnon, Rebecca. 2009. "China's Censorship 2.0:
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January 2009.
index.php/fm/article/view/2378/2089 (accessed September
24 Chinese Human Rights Defender. How does government
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Article/Class1/200803/20080324093843_8168.html (ac-
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25 Human Rights Watch. 2006. Race to the bottom: Corpo-
rate complicity in Chinese Internet Censorship. 10 August
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26 Ìnformation Offce of the State Council combined with the
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Information Services.” China IT Law.
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the security of the nation, divulging state secrets, subvert-
ing of the national regime or jeopardizing the integrity of the
nation’s unity; (3) harming the honor or the interests of the
nation; (4) inciting hatred against peoples, racism against
peoples, or disrupting the solidarity of peoples; (5) disrupt-
ing national policies on religion, propagating evil cults and
feudal superstitions; (6) spreading rumors, disturbing social
order, or disrupting social stability; (7) spreading obscenity,
pornography, gambling, violence, terror, or abetting the com-
mission of a crime; (8) insulting or defaming third parties,
infringing on the legal rights and interests of third parties; (9)
inciting illegal assemblies, associations, marches, demon-
strations, or gatherings that disturb social order; (10) con-
ducting activities in the name of an illegal civil organization;
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27 See Constitution of the People's Republic of China,
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tects against unlawful searches, and Article 33, which states
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30 State Secrecy Provisions, Articles 3 and 10. Although
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facie case to hold the government legally responsible for
several incidents of cyber piracy – a truly 21st century prob-
lem - despite government claims that these are purely the
actions of non-state actors over whom it has no control.
31 Buckley, Chris. 2011. "China state paper urges Ìnternet
rethink to gag foes.” Reuters. 2 September 2011.
32 Ìn 2006 executive chairman Eric Schmidt declared that:
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34 OpenNet Ìnitiative. 2006. Filtering: How It
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Works and Shapes Our Lives. New York: Simon and Schus-
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Collusion and Collision:
Searching for guidance in Chinese cyberspace
36 Thompson, Clive. 2006. "Google's China Problem (and
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37 Sergey Brin on China's Google Decision.¨ TED Blog. 24
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38 Villeneuve, Nart. 2008. "Search Monitor Project: Toward a
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39 OpenNet Initiative. China.
profles/china-including-hong-kong (accessed September
40 Thompson, Clive. 2006. "Google's China Problem (and
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41 Zeller Jr., Tom. 2006. "Web frms are grilled on dealings
in China.” The New York Times. 16 February 2006.
42 Thompson, Clive. 2006. "Google's China Problem (and
China’s Google Problem).” The New York Times. 23 April
43 Dickie, Mure. 2008. "Google faces lawsuit for blocking
name.” The Financial Times. 1 February 2008.
44 Thompson, Clive. 2006. "Google's China Problem (and
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24 February 2010.
cus_has_b (accessed September 2011).
46 Davidson, Alan. 2010. "Testifying before the Congressio-
nal-Executive Commission on China.” Google Public Policy
Blog. 24 March 2010. http://googlepublicpolicy.blogspot.
com/2010/03/testifying-before-congressional.html (accessed
September 2011).
47 Google hardly stood alone., the world's
largest Ìnternet domain registrar and manager of 27,000
Chinese domain names, also decided to pull out of China in
response to government interference and privacy concerns.
With more than 400 million users worldwide, Facebook de-
clined to enter the Chinese market and remains blocked by
the Great Firewall. Ìt runs a Chinese version from outside of
China. Twitter has resisted giving any control to China. See
Johnson, Bobie, Branigan, Tania and Nasaw, Daniel. "We're
staying in China, says Microsoft, as free speech row with
Google grows.” The Guardian. 25 March 2010. http://www.
free-speech-google (accessed September 2011).
48 Helft, Miguel and Barboza, David. "Google Shuts China
Site in Dispute over Censorship.” The New York Times. 22
March 2010.
49 Barboza, David. 2011. "Microsoft to Partner with China's
Leading Search Engine.” The New York Times. 4 July 2011.
50 Thinesen, Erica. 2011. "Chinese Government Renews
Google’s Internet Content Provider License.” IT ProPortal. 7
September 2011.
license/#ixzz1XwÌvqz4o (accessed September 2011).
51 In response to “Notice of Evidence Collection” from the
Beijing State Security Bureau, Yahoo! employees handed
over Shi Tao's "email account registration information for, all login times, corresponding
ÌP addresses, and relevant email content from February 22,
2004.¨ See: Mackinnon, Rebecca. 2007. Shi Tao, Yahoo!
and lessons for corporate social responsibility. 30 December
pdf (accessed September 2011).
52 Mackinnon, Rebecca. 2007. Shi Tao, Yahoo! and lessons
for corporate social responsibility. 30 December 2007. http:// (ac-
cessed September 2011).
53 Lantos, Tom. 2007. "Statement of Chairman Lantos at
hearing, Yahoo! Ìnc's provision of false information to Con-
gress.” House Committee on Foreign Affairs. 6 November
(accessed September 2011).
54 28 U.S.C.A. 1350.
55 Perez, Juan Carlos. 2007. "Yahoo Settles Chinese Dis-
sident Lawsuit.” PCWorld. 14 November 2007. http://www.
dent_lawsuit.html (accessed September 2011).
56 Mackinnon, Rebecca. 2007. Shi Tao, Yahoo! and lessons
for corporate social responsibility. 30 December 2007. http:// (ac-
cessed September 2011).
57 For instance, in 2002, Microsoft gave millions to software
engineering schools in fve universities. They also worked
with the Ministry of Education to create curriculums and
outft computer laboratories. Ìn an effort to combat software
piracy, Microsoft announced funding for training programs in
the eastern city of Hangzhou. Microsoft also donated their
operating system, Windows, to the state-run China Telecom
and China's State Economic and Trade Commission as part
of a marketing strategy. See: Microsoft. 2006. Microsoft
in China: Microsoft’s Strategy and Goal in the Chinese
naPresident/documents/ChinaBG.pdf; and Magnier, Mark
and Menn, Joseph. 2005. "As China Censors the Ìnternet,
Money Talks.¨ Los Angeles Times. 17 June 2005. http://arti- (accessed
September 2011).
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
58 Human Rights Watch. 2006. Race to the bottom: Corpo-
rate complicity in Chinese Internet Censorship. 10 August
EP,CHN,,45cb138f2,0.html. (accessed September 2011).
Funded by the Shanghai City Government, SAÌL is a venture
fund led by Jiang Mianheng, son of former PRC president
Jiang Zemin. See also Cheng, Allen T. 2001. "Shanghai's
'King of Ì.T.'.¨ 9 February 2001, and Lee,
Melanie and Wong, Jacqueline. 2011. "China's Renren signs
agreement with Microsoft.” Reuters. 24 August 2011. http://
TRE77N0UG20110824 (accessed September 2011).
59 Pan, Philip P. 2006. "Bloggers Who Pursue Change
Confront Fear and Mistrust.¨ Washington Post. 21 Febru-
ary 2006.
article/2006/02/20/AR2006022001304.html (accessed
September 2011).
60 Human Rights Watch. 2006. Race to the bottom: Corpo-
rate complicity in Chinese Internet Censorship. 10 August
,CHN,,45cb138f2,0.html (accessed September 2011).
61 Ibid
62 Fried, Ìna. 2006. "Microsoft clarifes policy on cesor-
ing blogs.” CNET News. 31 January 2006, http://
blogs/2100-1028_3-6033343.html (accessed Septem-
ber 2011) and, Barboza, David. "Microsoft to Partner
With China's Leading Search Engine.¨ The New York
Times. 4 July 2011.
technology/05microsoft.html (accessed September 2011)
Fletcher, Owen . 2011. "Microsoft to Provide English Search
Results on Baidu.” The Wall Street Journal. 4 July 2011.
(accessed September 2011).
63 Barboza, David. 2011. "Microsoft to Partner With China's
Leading Search Engine.” The New York Times. 4 July 2011,
html (accessed September 2011).
64 Fletcher, Owen. 2011. "Microsoft to Provide English
Search Results on Baidu.” The Wall Street Journal. 4 July
html (accessed September 2011).
65 Barboza, David. 2011. "Microsoft to Partner With China's
Leading Search Engine.” The New York Times. 4 July 2011,
html (accessed September 2011).
66 Begany, Tim. 2011. "A stock that's up 50% in THÌS
market.” Street Authority. 12 September 2011. http://www.
market-458563 (accessed September 2011).
67 Levy, Steven. 2011. In the Plex: How Google Thinks,
Works and Shapes Our Lives. New York: Simon and Schus-
ter. supra p.298.
68 Lee, Melanie and Wong, Jacqueline. 2011. "China's
Renren signs agreement with Microsoft.” Reuters. 24 August
msn-idUSTRE77N0UG20110824 (accessed September
69 Microsoft News Center. Microsoft Formalizes Cross-
Platform Collaboration With CS2C in China. 22 August 2011.
22CS2CPR.mspx (accessed September 2011).
70 Yun-Hee Kim. "Microsoft to Add Staff in China.¨ The Wall
Street Journal. 22 February 2011.
html (accessed September 2011).
71 Mashland, Alison. 2006. "Skype says texts are cen-
sored by China.” The Financial Times. 18 April 2006.
0000779e2340.html (accessed September 2011).
72 Skype. 2005. TOM Online, Skype Announce Joint
Venture in China. 5 September 2005,
com/2005/09/tom_online_skype_announce_join.html (ac-
cessed September 2011).
73 Ìbid
74 Aughton, Simon. 2006. "Skype comes clean over China
censor.” PCPro. 19 April 2006.
news/86146/skype-comes-clean-over-china-censor (ac-
cessed September 2011).
75 See: Silverman, Josh. 2008. "Skype President Ad-
dresses Chinese Privacy Breach.” The Big Blog. October
dent_addresses_chin.html (accessed September 2011); and
Skype. 2006. "Comments about Skype chat text fltering in
China.” The Big Blog. 19 April 2006.
en/2006/04/comments_about_skype_chat_text.html (ac-
cessed September 2011).
76 Villeneuve, Nart. 2008. "Breaching Trust: An analysis of
surveillance and security practices on China's TOM-Skype
platform.” Information Warfare Monitor and ONI Asia Joint
Report. (ac-
cessed September 2011).
77 Ìbid
78 CNN. 2011."Skype illegal in China? Not so fast.¨ CNN
GO. 4 January 2011.
life/skype-illegal-china-well-not-so-fast-617634 (accessed
September 2011).
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
79 "Skype says it is operational in China despite reports
of crackdown by the government.” Asia Pacifc Telecom. 1
February 2011.
80 Presumably Skype's position solidifed in May 2011,
when Microsoft acquired Skype.
81 Walton, Greg. 2001. "China's Golden Shield.¨ Interna-
tional Center for Human Rights and Democratic Develop-
tion/CGS_ENG.PDF (accessed September 2011).
82 Cisco Systems. 2002. Overview of the Public Security
cisco_presentation.pdf (accessed September 2011). supra
Slide 57.
83 Cisco Systems. 2002. Overview of the Public Security
cisco_presentation.pdf (accessed September 2011). supra
slide 58.
84 Gutmann, Ethan. 2004. Losing the New China: A Story of
American Commerce, Desire, and Betrayal. San Francisco:
Encounter Books.
85 Gutmann, Ethan. 2006. "Aiding the Policenet.¨ Founda-
tion for Defense of Democracies. http://www.defenddemoc-
11776837&Ìtemid=347 (accessed September 2011) and
Bambauer, Derek. 2006. "Cool Tools for Tyrants.¨ Legal Af-
fairs. January-February 2006 .
(accessed September 2011).
86 Gutmann, Ethan. 2004. Losing the New China: A Story of
American Commerce, Desire, and Betrayal. San Francisco:
Encounter Books, 2004.
87 Ìbid
88 Regan, Keith. 2007. "Cisco's China Ìnvestment Mush-
rooms to 16 Billion.” Ecommerce Times. 1 November 2007.
Ìnvestment-Mushrooms-to-16-Billion-60114.html (accessed
September 2011).
89 Ibid
90 Chao, Loretta and Clark, Don. 2011. "Cisco Poised to
Help China Keep an Eye on its Citizens.” The Wall Street
Journal. 5 July 2011.
24052702304778304576377141077267316.html (accessed
September 2011).
91 Ibid
92 Rennack, Dianne E. 2006. "China: Economic Sanctions.¨
CRS Report for Congress. Order Code RL31910. http:// (accessed Septem-
ber 2011).
93 Reitman, Reiny. 2011."Cisco and Abuses of Human
Rights in China: Part 1.” Electronic Frontier Foundation. 22
August 2011.
and-abuses-human-rights-china-part-1. (accessed Septem-
ber 2011).
94 Ìbid. Named plaintiffs are Du Daobin, Zhou Yuanzhi, and
Liu Xianbin.
95 Ibid
96 Human Rights Law Foundation. 2011. Cisco Complaint.
19 May 2011.
Cisco-Complaint (accessed September 2011).
97 For instance, cell phone provider Verizon has an explicit
Human Rights Statement which includes “protecting cus-
tomer privacy by notifying customers about how their data is
being used and giving them choice and control over the use
of their private information.¨ The full statement is available
online at
human-rights . Further examples of human rights policies
from businesses are available at
98 Clinton, Hillary. 2010. "Remarks on Ìnternet Freedom.¨
U.S. Department of State. 21 January 2010. http://www. (accessed
September 2011).
99 Ibid
100 Clinton, Hillary. 2011. "Ìnternet Rights and Wrongs:
Choices and Challenges in a Networked World.” U.S. De-
partment of State. 15 February 2011.
secretary/rm/2011/02/156619.htm (accessed September
101 The White House. May 2011. International Strategy
for Cyberspace: Prosperity, Security and Openness in a
Networked World.
(accessed September 2011).
102 Global Network Ìnitiative. Global Network Initiative
– FAQ.
php#48 (accessed September 2011).
103 Global Network Ìnitiative. 2010. Inaugural Report 2010:
Our work. Our vision. Our progress. http://www.globalnet-Ì_annual_report_2010.
pdf (accessed September 2011).
104 Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350 (2006)
105 Torture Victim Protection Act of 1991, Pub. L. No.
102-256, 106 Stat. 73 (1992) (codifed at 28 U.S.C. § 1350
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
106 'Self-executing' means that ratifcation creates no
private right of action with the U.S. judicial system unless
Congress acts to implement agreement with the legislation.
107 Torture Victim Protection Act of 1991, Pub. L. No.
102-256, 106 Stat. 73 (1992) (codifed at 28 U.S.C. § 1350
108 The Universal Declaration of Human Rights was ad-
opted by the UN General Assembly on December 10, 1948,
at the Palais de Chaillot, Paris. Article 12 states that "no one
shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his
honor and reputation. Everyone has the right to protection
of the law against such interference or attacks.” Article 19
states: “Everyone has the right to freedom of opinion and
expression; this right to seek, receive and impart information
and ideas through any media, regardless of frontiers.¨ Avail-
able online at: United Nations. 1948. The Universal Declara-
tion of Human Rights.
(accessed September 2011).
109 United Nations. 1966. International Covenant on Civil
and Political Rights.
htm (accessed September 2011). Adopted December 16,
1966 by General Assembly Resolution 2200A (XXÌ). Ìt came
into force on March 23, 1976. By December 2010 the Cov-
enant had 72 signatories and 167 parties. China has signed
but not ratifed.
110 United Nations. 1976. International Covenant on Eco-
nomic, Social and Cultural Rights.
english/law/cescr.htm (accessed September 2011). Adopted
by U.N. General Assembly Resolution 2200A (XXÌ). Entry
into force, January 3, 1976, in accordance with the provi-
sions of Article 27, requiring thirty-fve members to ratify or
accede to the Treaty. As of July 2011, the Covenant had 160
parties. Six more had signed but not ratifed. Certain nations
conditioned their signing, including China, as to labor rights,
and has not ratifed it.
111 United Nations. 2003. "Norms on the Responsibilities of
transnational corporations and other business enterprises
with regards to human rights.” Economic and Social Council.
26 August 2003.
nsf/(Symbol)/E.CN.4.Sub.2.2003.12.Rev.2.En. (accessed
September 2011).
112 United Nations. 2003. "Commentary on the norms
on the Responsibilities of transnational corporations and
other business enterprises with regards to human rights.”
Economic and Social Council. 26 August 2003. U.N. Doc. E/
CN.4/Sub.2/2003/38/Rev.2 The adoption is also mentioned
by Amnesty Ìnternational on p4 of their 2004 report 'The UN
Human Rights Norms for Business: towards legal account-
113 The First Optional Protocol to the Ìnternational Covenant
on Civil and Political Rights establishes an individual com-
plaints mechanism through which individuals may complain
to the human rights Committee about violations to the Cov-
enant. It has 113 parties.
114 OSCE (Offce of the Representative on Freedom of
the Media). 2011. Freedom of Expression on the Internet:
Study of legal provisions and practices related to freedom of
expression, the free fow of information and media pluralism
on the Internet. (accessed
September 2011).
115 Hussein, Abid. 1995. Report of the U.N. Special Rappor-
teur, Mr. Abid Hussein, pursuant to the Commission on Hu-
man Rights Resolution 1943/45, Reference E/CN.4/1995/32.
14 December 1995. supra para. 48; See also: Nolan,
Justine. 2008. "The China Dilemma: Ìnternet Censorship and
Corporate Responsibility.” University of South New South
Wales Faculty of Law Research Series. http://law.bepress.
com/unswwps/frps08/art57 (accessed September 2011).
116 "U.S. reservations, declarations, and understandings,
Ìnternational Covenant on Civil and Political Rights, 138
Cong. Rec. S4781-01 (daily ed., April 2, 1992).¨ University
of Manitoba Human Rights Library.
humanrts/usdocs/civilres.html (accessed September 2011).
117 United Nations Global Compact. The Ten Principles.
ciples/index.html (accessed September 2011).
118 United Nations Global Compact. Frequently Asked
119 Deva, Surya. 2007. "Corporate Complicity in Ìnternet
Censorship in China: Who Cares for the Global Compact
or the Global Online Freedom Act?¨ George Washington
International Law Review 39:255-319.
120 Anderson, Nate. 2011. "France attempts to 'civilize' the
Ìnternet; Ìnternet fghts back.¨ Ars technica. May 2011. http://
to-civilize-the-internet-internet-fghts-back.ars (accessed
September 2011).
121 Wintour, Patrick. 2011. "Facebook founder Zuckerberg
tells G8 summit: don’t regulate the web.” The Guardian.
26 May 2011.
may/26/facebook-google-internet-regulation-g8 (accessed
September 2011).
122 G8. 2011."Renewed Commitment for Freedom and
Democracy.” G8 Declaration. 26-27 May 2011. http://www.
mitment-for-freedom-and-democracy.1314.html (accessed
September 2011).
SecDev Analytics
Collusion and Collision:
Searching for guidance in Chinese cyberspace
123 Foreign Corrupt Practices Act of 1977, 15 U.S.C.A.
78dd-1 (1977).
124 Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C.A.
5001 (2002).
125 United States House of Representatives. 112th Con-
gress, 1st Session. H.R. 1389. Global Online Freedom Act
of 2011 [introduced in the House 6 April 2011]. http://www. (accessed
September 2011).
126 Ibid
127 Ìbid
128 Ibid
129 The issue is not inherently partisan. Congressman
Smith is a Republican. Former Governor Mitt Romney,
a leading contender for the Republican nomination, has
recently taken a hard line on Chinese theft of intellectual
property and currency manipulation. Alexander Burns, "Mitt
Romney brings China message to Ohio,¨, July
27, 2011. Others, like former U.S. Ambassador to China
Jon Huntsman and also a candidate for the GOP nomina-
tion, have been more ambivalent. Huntsman recently joined
former Secretary of State Henry Kissinger is calling for an
agreement to restrict cyber attacks and designate some
areas as off-limits to hacking. Neither addressed the issues
of freedom of speech or privacy, or China's policy of extort-
ing technology transfers as a price for doing business in the
country. See "Kissinger, Huntsman: U.S., China need cyber
détente,¨ Reuters, June 14, 2011. Huntsman is unlikely to
secure the Republican nomination but there is a quiet move
afoot to position him as a third party candidate. House
Speaker John Boehner has spoken up, declaring that China
has a “responsibility to do better” at guaranteeing freedom
and dignity for its citizens and that the United States has a
“responsibility to hold them to account.” Boehner has not
finched from pressing his views directly to President Hu Jin-
tao, which he did in January during the Chinese President's
visit to Capitol Hill. See Julie Hirschfeld Davis, "Boehner
Says China Has 'Responsibility to Do Better,¨ Bloomberg
Business Week, January 20, 2011.
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