When should American companies comply with government censorship requests?
Jillian C. York is a writer and activist whose work examines state and corporate censorship and its impact on culture and human rights. Based in Berlin, she is the Director for International Freedom of Expression at the Electronic Frontier Foundation and a fellow at the Center for Internet & Human Rights at the European University Viadrina.
In 2002, two Chinese men were detained for their dissident activities online. The first, Wang Xiaoning, had used email and Yahoo forums to spread pro-democracy messages, a crime for which he served ten years. The second, a journalist called Shi Tao, was convicted of providing state secrets to overseas entities and served eight years. The two men are connected by an invisible thread: In both cases, the convictions couldn’t have happened without the complicity of an American company.
Yahoo, it turns out, had handed over data to the Chinese government that led to the the arrest of the two men. The company’s general counsel, Michael Callahan, told a US Congressional hearing in 2006 that:
“Law enforcement agencies … typically do not explain to information technology companies or other businesses why they demand specific information regarding certain individuals. In many cases, Yahoo! Does not know the real identity of individuals for whom governments request information, as very often our users subscribe to our services without using their real names.”
Although in Shi’s case it turned out that Yahoo had lied—the company had, in fact, known what his charges were about—these cases nevertheless led to outrage from civil society advocates and, thanks to the work of a number of activists and academics, the creation of the Global Network Initiative (GNI), a multi-stakeholder group that includes many of Silicon Valley’s top companies. The GNI, in turn, instigated procedures that most companies now follow, including transparency reporting.
It is because of those transparency reports that we know about how many pieces of data companies turn over to various governments, or how many occurrences of government censorship have been imposed on platforms. Such transparency allows users to make more informed decisions about which products to use and avoid, but may in the end also lead to more compliance.
When it comes to censorship, transparency has almost certainly led to a greater rate of compliance from companies. This might appear paradoxical: Why would companies be more willing to comply with governments if they know they’ll need to disclose their actions later? At first, countries demanding that corporations do their bidding had no idea what other countries were up to, but as companies began issuing transparency reports, governments were able to see what their counterparts were up to and follow suit.
Google’s transparency report on government requests to censor content bears out this hypothesis. The report, which is downloadable as a .csv, demonstrates that over the years, the number of governments and law enforcement agencies making requests—and the number of requests overall—has increased significantly.
We know that governments learn from one another, that one government implementing this or that surveillance apparatus will often lead others to follow. Censorship is no different. Recognizing that states can hold the threat of blocking an entire platform or website over companies, governments have become increasingly bold in their censorship demands.
Take, for example, Saudi Arabia. Five years ago, it was almost unheard of for a company to comply with the kingdom’s requests. Without offices in the country, tech companies knew there would be no direct consequences for their employees. Today, there’s hardly a company that hasn’t complied with the Saudi Arabia, and in the past few months—amidst conflict between the country and neighboring Qatar—both Snapchat and Medium complied with orders to censor news publications.
Compliance with China also appears to be on the rise. Although Google famously shut down its Chinese offices in the wake of cyberattacks against its servers in 2010, the company reopened offices in the country in 2016, having decided it was more ethical to offer some services than none at all. A number of countries, including Apple, Google, and Facebook, have adhered to Chinese law, which does not allow the companies to be transparent about the types of requests they receive (China considers them to be state secrets). Facebook is even thought to be considering opening an office in the country.
These are, undoubtedly, steps in the wrong direction, but what’s a company to do? Complying with requests seems to beget more requests, and anyway, Pandora’s box was opened a long time ago. Refusing to comply, on the other hand, can result in a company’s platform or website getting blocked—as has occurred in dozens of countries from Mauritius to Turkey.
While it’s nice to imagine a corporation like Facebook or Twitter standing up against government censorship by refusing to comply with their demands, getting banned countrywide can have serious consequences both for the company and its users. The loss for the former is largely economic, but for citizens of censorious countries, losing access to a major communications platform can be devastating. It can mean the loss of professional opportunities and connections, can result in losing contact with global activist or other networks, and deprivation of—let’s be honest—a major source of entertainment and connection in our modern age.
And so, whether to comply or not isn’t a simple decision, but one that requires far more political consideration than it’s being given right now. All too often, I’ve heard companies cite “sovereignty” when removing important content at the request of governments that are party to multilateral treaties like the International Covenant on Civil and Political Rights (ICCPR). State sovereignty is important, but so is holding governments accountable to the human rights principles that they’ve agreed to.
It’s time to admit that mere transparency isn’t enough, and that every decision to censor content is a political decision. Companies should act accordingly. They must carefully consider the long-term effects of complying with requests, and take a stand when those requests run counter to human rights principles. The more we accept everyday censorship, the more of it there seems to be, and before we know it, the window of acceptable information will only be open a crack.