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A bill that seeks to foster global online freedom was recently passed in a unanimous voice vote by a congressional subcommittee that addresses international human rights. Time will tell whether the bill, H.R. 4780, which proposes the Global Online Freedom Act of 2006, will become law and, if so, whether it is the best means to accomplish its goals. Its attempt to punish U.S. online businesses in other countries could actually lead to less online freedom, if those companies decide to stop doing business in those countries.
The bill states that its purpose is "to promote freedom of expression on the Internet, to protect United States business from coercion to participate in repression by authoritarian foreign governments, and for other purposes."
As part of the bill, Congress would make various findings, including:
"Freedom of speech and freedom of the press are fundamental human rights, and free use of the Internet is protected in Article 19 of the Universal Declaration of Human rights, which guarantees freedom 'to receive and impart information and ideas through any media regardless of frontiers'";
"The Internet has been a success because it quickly provides information to its more than 972 million users globally";
"The growth of the Internet and other information technologies can be a force for democratic change if the information is not subject to political censorship"; and
"Political censorship of the Internet degrades the quality of that service and ultimately threatens the integrity and viability of the industry itself, both in the United States and abroad."
The bill provides the following statement of policy for the United States to:
"Promote the ability of all to access and contribute information, ideas and knowledge via the Internet, and to advance the right to receive and impart information and ideas through any media regardless of frontiers as a fundamental component of United States foreign policy";
"Use all instruments of United States influence, including diplomacy, trade policy and export control, to support, promote and strengthen principles, practices and values that promote the free flow of information"; and
"Prohibit any United States business from cooperating with officials of Internet-restricting countries in effecting political censorship of online content."
The bill proposes a process whereby the president would designate certain foreign countries as "Internet-restricting" regions that are "directly or indirectly responsible for a systematic pattern of substantial restrictions on Internet freedom during the preceding one-year period."
The bill then goes on to provide restrictions on United States businesses with respect to Internet-restricting countries. For example, under certain circumstances, U.S. businesses that host Internet search engines or maintain Internet content hosting services could not locate computer hardware in Internet-restricting countries.
As another example, U.S. businesses that provide Internet search engines could not alter the operation of search engines with respect to protected filter terms at the request of Internet-restricting country. Nor could they provide these in a manner that could produce different search engine results for Web users accessing the search engine from within the Internet-restricting country, as compared with users elsewhere.
The bill contemplates potentially serious civil and criminal penalties for violations.
In the United States, Internet service providers generally are not responsible for third-party online content, based on immunity afforded to them under the Communications Decency Act. They are considered to provide a value-neutral service.
Freedom for online users in other countries is a laudable goal. There are various ways to seek that freedom, including diplomatic pressure brought to bear government to government.
U.S. businesses provide an online service to people in other countries within the given frameworks of those countries. One must think that their presence in these countries and the service they provide is a positive development, even if not perfect, based on any constraints put in place.
To the extent significant penalties are put in place, it is possible that U.S. businesses will retreat from the online services they are providing in other countries. And then, Netizens in those countries might have less, not more, freedom.
Is it realistic to think that Internet-restricting countries will change their restricting policies because U.S. businesses might be penalized because of the restrictions put in place in those countries? The restrictions are established at the government level, and are not directed or controlled by the U.S. businesses.
There might be a better way to seek to achieve global online freedom, notwithstanding the lofty goals of H.R. 4780.
is a partner in the San Francisco office of . His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to email@example.com with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
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