upon these liberties and the other rights they help to protect. Responsible international companies might also choose to withdraw from such markets in order to protect
themselves against complicity, thereby further limiting the options of local users and
sacrificing the opportunity to engage troublesome governments constructively.
Under the guidance of the Special Representative of the Secretary-General of the
United Nations on business and human rights, John Ruggie, the United Nations has
developed the Protect, Respect, and Remedy Framework: ‘‘Each principle is an essential
component of the framework: the state duty to protect because it lies at the very core
of the international human rights regime; the corporate responsibility to respect because it is the basic expectation society has of business; and access to remedy, because
even the most concerted efforts cannot prevent all abuse, while access to judicial redress is often problematic, and non-judicial means are limited in number, scope, and
effectiveness. The three principles form a complementary whole in that each supports
the others in achieving sustainable progress.’’ 11
Ruggie’s work recognizes the tremendous power of business but points out that markets work best when they exist in the context of rules and institutions. While he identifies governance gaps created by globalization as a root cause of the often uneasy and
sometimes negative relationship between business and human rights, he also notes
that most businesses do not actually have systems to know when they are causing
harm.
Government Steps In: Policy and Regulatory Responses
While business has focused its requests on the executive branch, requesting bilateral
assistance in individual cases and on trade issues, civil society has been more likely to
call for proscriptive legal solutions, spurring significant legislative interest. 12 Such
approaches face many challenges, including law’s tendency to trail technology because
of its rapid pace of change, evolving business models, unanticipated user behavior, and
unpredictable government action, to say nothing of the cultural differences and jurisdictional issues associated with globalization and the Internet. These factors, combined
with the desire to support continued innovation and creativity in the ICT space, suggest that specific legal interventions or policy prescriptions may be premature, or may
even risk taking a step backward.
A varied group of supporters within the U.S. Congress has harnessed members who
are rights supporters and China-watchers, liberals and conservatives, to raise issue
awareness. Holding frequent hearings and considering the Global Online Freedom Act
(GOFA) 13 annually for the past three years, their actions may occur at the intersection
of policy and politics, but they have created invaluable urgency for companies to take
action. Amid many other legitimate concerns, CDT has criticized GOFA for creating an
adversarial relationship with companies, rather than a collaborative one. 14 For its part,
the U.S. Department of State created the Global Internet Freedom Task Force to track
90
Colin M. Maclay
themselves against complicity, thereby further limiting the options of local users and
sacrificing the opportunity to engage troublesome governments constructively.
Under the guidance of the Special Representative of the Secretary-General of the
United Nations on business and human rights, John Ruggie, the United Nations has
developed the Protect, Respect, and Remedy Framework: ‘‘Each principle is an essential
component of the framework: the state duty to protect because it lies at the very core
of the international human rights regime; the corporate responsibility to respect because it is the basic expectation society has of business; and access to remedy, because
even the most concerted efforts cannot prevent all abuse, while access to judicial redress is often problematic, and non-judicial means are limited in number, scope, and
effectiveness. The three principles form a complementary whole in that each supports
the others in achieving sustainable progress.’’ 11
Ruggie’s work recognizes the tremendous power of business but points out that markets work best when they exist in the context of rules and institutions. While he identifies governance gaps created by globalization as a root cause of the often uneasy and
sometimes negative relationship between business and human rights, he also notes
that most businesses do not actually have systems to know when they are causing
harm.
Government Steps In: Policy and Regulatory Responses
While business has focused its requests on the executive branch, requesting bilateral
assistance in individual cases and on trade issues, civil society has been more likely to
call for proscriptive legal solutions, spurring significant legislative interest. 12 Such
approaches face many challenges, including law’s tendency to trail technology because
of its rapid pace of change, evolving business models, unanticipated user behavior, and
unpredictable government action, to say nothing of the cultural differences and jurisdictional issues associated with globalization and the Internet. These factors, combined
with the desire to support continued innovation and creativity in the ICT space, suggest that specific legal interventions or policy prescriptions may be premature, or may
even risk taking a step backward.
A varied group of supporters within the U.S. Congress has harnessed members who
are rights supporters and China-watchers, liberals and conservatives, to raise issue
awareness. Holding frequent hearings and considering the Global Online Freedom Act
(GOFA) 13 annually for the past three years, their actions may occur at the intersection
of policy and politics, but they have created invaluable urgency for companies to take
action. Amid many other legitimate concerns, CDT has criticized GOFA for creating an
adversarial relationship with companies, rather than a collaborative one. 14 For its part,
the U.S. Department of State created the Global Internet Freedom Task Force to track
90
Colin M. Maclay