Googlegate: Raising the Bar of Business Code of Conduct 谷歌门事件：提升商业道德的水准

Xiaorong Li

In mid-January, Google threatened to pull its business out of China unless China lifts filters of its search engine (google.cn and google.com) results. What is this all about? Only Google can explain the intent or motives behind its decisions. Despite the motives, Google may have done some good by spotlighting and picking fight with cyber censorship and cyber infiltration. Google and other foreign (mostly US) Internet technology corporations should have protested, even at the cost to their own profit, a long time ago or should have never accepted culprit role in the government’s online censorship as pre-condition for entering the Chinese market in the first place.

If Google did the right thing this time, then, it implies that Google has not been doing the right thing to doing business in China under the condition of assisting censorship. And it also means that the other Internet companies are still doing the wrong thing by keeping doing business under such compromising conditions. If hackers breaking into human rights activists’ email (gmail, Yahoo, hotmail) accounts should prompt such reactions as Google’s, then, such reactions are overdue since hackering emails has been an ongoing reality for several years. Typically, the hackers would enter somebody’s email account and send emails to all on the user’s address list, spreading rumors or sending attachments containing viruses. Curiously, such hacking seems to target activists rather than random victims. I have received “important messages” frequently from so-called Google Administrators alerting me “due to irregular actions in your account, it will be soon closed” and so on, trying to get me to click a link or open an attachment. But the senders’ addresses, upon inspection, often end with “.tw” or “.ho”. These are clearly fake email addresses and such emails cannot come from Google. Others who are less careful might have been tricked. Many in the Chinese activist community, inside China or on exile, have been victims of routine email hacking so much so they rarely communicate anything “sensitive” via emails.

Surely it is never too late to correct one’s mistakes. We all need time to get over our learning curve – to come to the realization of having made a mistake.

Google made a fuss more like because it is alarmed by the sophisticated, large-scale cyber attacks on its site and the sites of more than 30 other Internet companies doing business in China, intended perhaps to steel intellectual property or install spyware. Whatever the triggers are, Google’s act raises important ethical questions about the moral standing of American companies doing their part in assisting the Chinese government’s Internet censorship. It is worth raising such issues and sounding the alarm, since the other Internet companies who have said nothing will apparently continue their collaboration with the authoritarian regime. The repercussions of the Google action, including a televised speech on Internet freedom by Hilary Clinton, the US Secretary of State, on January contributed to a wave of public discussions about corporate responsibilities in the era of globalization of Internet technology.

Aside from intentions and repercussions, many Americans may not know the fact that Google’s Chinese search engine in China, www.google.cn, accepted ethically compromising conditions set by Chinese authorities to censors so-called “sensitive” contents. Google.cn filters “sensitive” words, thus contributing to upholding the Chinese government’s Great Fire Wall to block Chinese users’ access to open information online. An easy test can be performed to demonstrate how much information is censored by Google.cn. A user on outside the Great Fire Wall can search for the same words such as “Tiananmen incident”, or “Falun Gong”, on both google.cn and google.com. One will see two very different pages of search results. In volume, the Google.com search produces 10-15 times more items of results than Google.cn does. In contents, predictably, the results out of Google.cn are one-sided, reflecting the government’s point of view. It is difficult for Chinese users to directly link to Google.com and gmail (which is hosted outside China) -- connecting from China is either very slow or not accessible. And like all websites outside the country, once opened in China, Google.com’s search results are subjected to censorship – politically sensitive contents would also be filtered and some pages are blocked.

Google wants to make clear that its mission is to promote open information and its motto is “Don’t be evil!” But this mission has been seriously compromised since Google entered China in 2006. Much like Google, other American internet companies, such as Yahoo, Microsoft, News Corp (MySpace), accepted the Chinese authorities’ policies of Internet censorship and practiced self-censorship under pressure.

One plausible argument for entering the Chinese market even if it means obeying ethically compromising local regulations is this: Internet companies will get a significant market share of the world’s largest pool of potential users, 1.3 billion. This will not only enable American companies to make profit, but also enable Chinese users to benefit from information technology. While some politically sensitive information is blocked, this argument goes, the vast majority of the Chinese population only need “un-sensitive” information about products, services, or daily life necessities.

This argument did not foresee the reality that, after years’ trying, most foreign Internet companies that had entered China have not been able to claim significant shares of the Chinese market. Google has about a 30% share of the market, while its Chinese competitor Baidu take more than 60%. Chinese companies are good at imitating foreign products but also have less or no prohibitions in providing services – such as free music download -- at the expense of certain regulations on copyrights and so on. And these companies are good at meeting the socio-psychological needs of Chinese consumers. Google is the only one so far who has go public about this frustrations and is willing to cut its looses, which may turn out to be insignificant in comparison to Google’s global revenues. Google may have calculated that the benefit of losing its share of the Chinese market is not worth keeping at the cost to its intellectual property being hacked and its reputation.

Though Google’s announcement raised the ethical bar for doing business in an authoritarian police state, other US Internet companies have not come around the learning curve to do such a calculation. For example, do the revenues for Yahoo in China really trump Yahoo’s interest in maintaining a clean reputation or peace of its CEOs’ conscience? Yahoo’s reputation nosedived after it was exposed for having handed over email recordings to Chinese police, which resulted in the imprisonment of several internet writers and journalists. One of them, Shi Tao, a journalist, is serving a 10-year sentence for leaking “state secret” through his Yahoo email! Microsoft also suffered in its reputation after it was exposed for shutting down the blog of the Chinese journalist Zhao Jing, who had written and posted an article about the government’s censoring of a Beijing newspaper. Unfortunately, most foreign Internet companies are so infatuated with their vision of selling products and services to a significant fraction of the 1.3 billion consumers, such that they would write off the losses of their reputation and overlook the fact that significant market shares have gone to Chinese companies. Thus, as of today, every page on the MySpace China site included a link allowing users or monitors to “report inappropriate information” to authorities, and Apple’s iTunes forbids Chinese users to download applications that refer to the Dalai Lama.

It may be true that the majority of China’s 380 million ordinary Internet users may not search for such words as “Tiananmen”, “Falun Gong”, or “Dalai Lama.” But if anyone ever does, Google.cn and other foreign Internet (website, blog, email) providers doing business in China have helped the Chinese government to make the information unavailable to that person. And the Chinese government’s increasingly long list of “sensitive” words for Internet blocking suggests that more and more people might be searching for these words, which is the only plausible explanation of the expanding official list.

Though victimhood does not relieve one of implication in Internet censorship, it is only fair to point out that Google and other companies, Chinese or foreign, are victims of China’s cyber policing regime, or at lease willing victims in the case of the foreign companies.

The cyber attack on Google website has been coordinated between technical and non-technological tactics. In June 2009, government-controlled media accused Google of spreading unhealthy pornographic contents. Chinese cyber activists conducted analysis of search words entered in Google.cn search engine, they found repeated searches from locations in Beijing of pornographic words. The frequency of such searches was later used by official media in its accusations against Google. Analysts believe that such deliberative acts are those of government-paid cyber thugs, known as the “50 cents party”. The objective of the members of the “50 cents party” is to harass and inform on online activists, monitor contents of websites, blogs, and Twitter, infiltrate activists’ interactive sites or chat groups, and hack websites\email accounts.

In addition to paying cyber thugs to petrol the Internet, the government also uses the following non-technological tactics:
1. The government adopted administrative regulations to control online magazines, scan mobile phone text messages, require internet/blog address registers to use real names, and so on. Various government agencies have issued many directives to control particular types of internet media, organizations, and usage, including online magazines, website registrations, interactive forums and bulletin board services (BBS), blogs, and video websites.
2. They deployed the “110 cyber police” on webpages. Cyber police petrol often appears as images of policemen or links for readers to click. They facilitate reporting of “illegal or unhealthy” contents on webpages.
3. They implemented a point system to punish internet media for infractions. Companies that accumulated points may have their registration licenses suspended or pay hefty fines. Through a complex system of administrative incentives and punishments, the government coerces companies into practicing self-censorship – to filter sensitive contents, block or delete articles, or close down websites and blogs on their own sites.
4. The government organized a "vigilant informants network", known at the "50 cents party" with paid cyber petrol men to collect information on netizens, infiltrate and subortage websites or online interactive sites frequented by dissidents/activists.
5. The government continues to use the criminal law to persecute internet users for expressing their views online.
6. In one extreme case, government shut down the Internet and cell phone networks for the entire Xinjiang Autonomous Region after the riot last July. As of last month, only a couple of official websites was made accessible.

Will Google’s pullout be a loss to Chinese users? Will it have any huge impact on online activists? If it is, this would offset any cost-benefit calculation that may have figured into Google’s decision to threat to pull out. Since the Chinese government has not budged, nor will it budge, to lift censorship. Lately, the government has indicated that hackers outside the government must be responsible for such hackings at Google’s sites.

Chinese online activists and even Chinese IT company professionals are delighted by Google’s announcement. One website portal owner was the first to lay flowers in front of Google’s Beijing headquarter. A card attached to a bunch of flowers reads, “Google [acted like] a real man”. (Photos) The Chinese internet companies too are victims of the government’s censorship.

If Google pulls out of China, general users will lose Google.cn as a search engine, but they can’t find certain information there anyway and they can instead find government-sanitized information on Chinese website portals like Baidu. Such Chinese competitors will have an even bigger share of the market. However, Chinese consumers have a taste for forbidden fruits – banned books, movies, or unavailable (pirated) brand-name designer handbags or CDs, often become hot items. Upon learning about the alternative, “forbidden” Google products – their superior quality and efficiency, consumers may have stronger desires than before to get their hands on them, which is what gives teeth to Google’s threat, otherwise largely symbolic move.

Those netizens who are un-satiable for information and online activists who have a penchant for alternative (un-censored) information, however, are unlikely to have less access to information and to Google tools, such as Google Document, Google Translation, Gmail Groups, etc., since most of them are already gaining access to the open Internet via proxy servers – which allow them to bypass the Chinese government blocking devises: the Great Fire Wall.

If the Chinese government’s Internet censorship is mostly furbished by American companies, a small fraction of the Chinese population – the online activists – have also benefited from technology. But the credit does not necessarily go to companies that have compromised principles to enter China. Rather, those Chinese who have the will to undermine official censorship have made creative use of Internet tools. The hope for a future of free expression and open information in China lies in these younger and creative Netizens. They are very vocal in denouncing cyber censorship and demanding Internet freedom. They have become very creative in using the new online media to mobilize and “climb over” the Great Fire Wall. Though Twitter is blocked in China, however, after China closed down the popular Chinese social networking site Fanfou last September, many users switched to Twitter and found their way to access the site by proxy or alternative links. Today, Twitter has become one of the most effective tools for networking and mobilization of Chinese activists. Another example of this is the protest in Panyu, Guangdong province, against the construction of a waste processing station last November, which was entirely organized and reported on Twitter. In another example, in January, when the government began implementing a new regulation to scan text message and suspend users’ accounts if “illegal, unhealthy” contents are discovered, many Chinese users repeated texted censored words in order to overwhelm the censors. Finally, when authorities censored the words “Charter 08” on Chinese websites, activists used words with different characters but the same spelling “county chief with swollen glands” to evade the blocking.

One of the most useful tools for bypassing the Great Fire Wall (GFW) is proxy server. Users inside the Wall can connect to such a server, which is based outside the Wall, which enables them to visit the open Internet, including all the officially blocked websites. The best known proxy servers are called Freegate and Gardengate, developed and maintained by Falun Gong networks in the US, which are providing the most-needed Internet technology tools to Chinese netizens walled in by perhaps the most sophisticated, high-tech engineered, state censorship in the world.

It’s hard to know how many Chinese netizens are served by such technologies – how many are using available tools to access the open Internet, to engage digital disobedience and online activism, but the number must have grown to such an extent that the Chinese government has invested billions of dollars to strengthen its blockage with the Golden Shield Project while shutting down many websites, blogs, and social networking sites.

What we have seen is this pattern: the more draconic measures the government takes to censor the Internet, the more innovative the netizens become and the more of them manage to find their way to access online tools to undermine censorship. In this game between the super-fat cat and millions of mice, there may have not been a clear winner for now, but the price of controlling millions of mice is growing increasingly high. Google’s act of protest has the effect of raising that price.

(Adapted from a talk on Jan. 22, 2010 at a forum sponsored by the National Endowment for Democracy and Center for International Media Assistance)

“Aspirations for Rule of Law Spur Growth of Civil Society” 对法制的追求刺激公民社会的成长

Xiaorong Li

Obviously the growth of a civil society and the development of the rule of law are mutually supportive and mutually beneficial. Professor Cohen has made huge imprints in leading the way to develop the latter, but also indirectly and directly to develop the former. Let me use my 5 minutes to say something about one part of this point, that is, how developing the rule of law helps the growth of civil society.

When I say civil society, I refer to a public space sandwiched between the private realm where for-profit interests dominate and the space where the State dominates. A sizable and lively public space is a fact of life in China today. Yes, you’re right, this civil society still has to fight hard for its life and for every inch of the space for independent action, against powerful forces from both sides that try to invade it and obliterate it. No matter how fragile and precarious, the fact that such a Chinese civil society is alive and kicking is monumental and it is, to a large extent, a gift from those who worked tirelessly to help the development of rule of law in the past many years, and the person who has been at the forefront of that hardworking troupe is the person we’re honoring here today.

There are many ways in which the emergence of a legal system and the promise of rule of law have boosted civil society. Three come to mind:

First, the promise of rule of law gave people hope, inspires them, and the law supplied the ammunition. The Chinese law has been the double-sword which the party-state uses to put people in their place but it is also used by the people to hold the government accountable and seek justice.

Second, many young lawyers, products of the newly minted law schools in China’s universities, take the government’s promise of rule of law and what they learnt in law textbooks literarily, but as they meet the reality of rule by the CCP political and legal committees, they become the front-row challengers of the system, and leaders in the civil rights movement.

Thirdly, members of the Chinese civil society have used the law to some extent effectively to extract positive changes, not without paying the prices, of course.

Take for example what is known as the “rights-defense movement”. Several things about this phenomenon deserve our attention:

1st, it has commanded a broad participation from many social classes/groups, not limited to the educated elite.

2nd, participants have made good use of the internet as their tools for communication & mobilization – to bypass draconic rules controlling organizing, and they have NOT been crushed by the Great Fire Wall and the heavy deployment of cyber-police;

3rd, while NGO organizing has become the primary target of the government’s war against civil society, many forms of informal organizing have been invented and they are carrying on the bulk of citizen actions;

And finally, this movement remains largely non-violent, participants appeal to the law & the Constitution, despite the fact that there have been an increasing number of violent mass incidents in clashes between protesters and the police.

These features are worth noticing because they may offer explanations as to why some small positive changes have been extracted by civil society activism from the authoritarian police state. We need only look back at the past half year to find several mini-steps forward, not mentioning earlier landmark decisions like the abolition of the Custody & Repatriation detention system. These recent steps include:
- the uncharacteristically light sentence for the young woman Deng Yujiao who accidentally killed an official in self-defense last summer;
- the backing out by government from its order to mandatorily install filtering software Green Dam Youth Escort on new computers last July;
- the quiet acknowledgement of “black jails” in the official media in recent weeks,
- and the lift of ban by the Shanghai government two weeks ago on activist Feng Zhenghu's return from Japan after his 92-days protest at the Tokyo airport.

In short, three decades of foreign legal aid and rule of law programs have helped nurture aspirations and provide tools for activists in the Chinese civil society to fight for justice. Jerry and many of you who are here today played an important role in making this possible. I second what Jerry said in his South China Morning Post article 3 days ago that such programs and the international pressure have helped pave the way for an easier transition once the fundamental changes take place. However, we must face up to the troubling reality that none of these efforts has stopped the Chinese government from engaging in extra-legal persecution of Gao Zhisheng, and mis-use of the law to persecute Liu Xiaobo and many others good citizens including Chen Guangcheng, Hu Jia, Huang Qi, Tan Zuoren (the list can go on), to punish them for having spoken up for or taken actions to protect the rights and interest of disadvantaged groups of fellow Chinese citizens.

As a testimony to Jerry’s integrity and contributions, I end my remark by reminding us that, over the years, Jerry has actually befriended some of those whose names I just mentioned, spoken up on their behalf, and, in some cases, acted as legal adviser to their lawyers. Thank you, Jerry!

(Remarks made at the Conference: “Half a Century of Asian Law: A Celebration of Prof. Jerome Cohen”, George Washington University School of Law, Feb. 19, 2010)