Potential Responses
Reasonable people disagree as to the best means of resolving these emerging ethical concerns. One might thus contend that there is no ethical problem here—or, at least, that the ethical problem is nothing new. If an Internet censorship and surveillance regime is entirely
legitimate from the perspective of international law and norms, the argument goes, then a private party required to participate in that regime has a fairly easy choice. If the executives of
our hypothetical corporation based in Europe disagree on a personal level with a censorship and surveillance regime, then they should simply exercise their business judgment and
refuse to compete in those markets. Alternatively, those executives could decide to refuse to
comply with the demands that they believe put their firm in a position in which their ethics are
compromised—and then accept the consequences, including possibly being forced to leave
the market, that befall them as a consequence of their resistance.
One option from a public policy angle, then, is to do nothing—to accept the status quo,
and to let the trend play itself out. In the unlikely event that online censorship and surveillance
were to cease across the globe, or if states were to stop calling upon private actors to get the
job done, or if corporations were to stop expanding into other markets, the problem might be
most cleanly resolved. But absent such changes in the facts as they stand, the stakeholders
in these issues have a series of possible ways to move forward to resolve the conflicts.
Industry Self-Regulation
The most likely—and most desirable—means of resolving this problem in the near-term
would be for the relevant corporations themselves to come up with a sustainable manner of
ensuring that they operate ethically in these charged contexts. It is surprising that no major
firm has gone public with such an ethical code before entering a market, such as China,
where such problems are sure to present themselves. With firms now competing in those markets, the need to do so is no less acute, whether or not legislative or other action follows.
In the simplest form, individual firms could each develop their own principles, much like a
privacy policy on today’s Internet; statements could clarify to users, shareholders, and others
how the firm will handle these situations. Microsoft set forth a partial version of such a policy at
a speech by General Counsel Brad Smith in 2005, in which he pledged the company to follow
a ‘‘broad policy framework’’ for responding to restrictions on the posting of blog content.
7 The
policy included three specific commitments:
Explicit standards for protecting content access: Microsoft will remove access to blog content only when it receives a legally binding notice from the government indicating that the
material violates local laws, or if the content violates MSN’s terms of use.
Maintaining global access: Microsoft will remove access to content only in the country
issuing the order. When blog content is blocked due to restrictions based on local laws,
the rest of the world will continue to have access. This is a new capability Microsoft is implementing in the MSN Spaces infrastructure.
114
Jonathan Zittrain and John Palfrey
Reasonable people disagree as to the best means of resolving these emerging ethical concerns. One might thus contend that there is no ethical problem here—or, at least, that the ethical problem is nothing new. If an Internet censorship and surveillance regime is entirely
legitimate from the perspective of international law and norms, the argument goes, then a private party required to participate in that regime has a fairly easy choice. If the executives of
our hypothetical corporation based in Europe disagree on a personal level with a censorship and surveillance regime, then they should simply exercise their business judgment and
refuse to compete in those markets. Alternatively, those executives could decide to refuse to
comply with the demands that they believe put their firm in a position in which their ethics are
compromised—and then accept the consequences, including possibly being forced to leave
the market, that befall them as a consequence of their resistance.
One option from a public policy angle, then, is to do nothing—to accept the status quo,
and to let the trend play itself out. In the unlikely event that online censorship and surveillance
were to cease across the globe, or if states were to stop calling upon private actors to get the
job done, or if corporations were to stop expanding into other markets, the problem might be
most cleanly resolved. But absent such changes in the facts as they stand, the stakeholders
in these issues have a series of possible ways to move forward to resolve the conflicts.
Industry Self-Regulation
The most likely—and most desirable—means of resolving this problem in the near-term
would be for the relevant corporations themselves to come up with a sustainable manner of
ensuring that they operate ethically in these charged contexts. It is surprising that no major
firm has gone public with such an ethical code before entering a market, such as China,
where such problems are sure to present themselves. With firms now competing in those markets, the need to do so is no less acute, whether or not legislative or other action follows.
In the simplest form, individual firms could each develop their own principles, much like a
privacy policy on today’s Internet; statements could clarify to users, shareholders, and others
how the firm will handle these situations. Microsoft set forth a partial version of such a policy at
a speech by General Counsel Brad Smith in 2005, in which he pledged the company to follow
a ‘‘broad policy framework’’ for responding to restrictions on the posting of blog content.
7 The
policy included three specific commitments:
Explicit standards for protecting content access: Microsoft will remove access to blog content only when it receives a legally binding notice from the government indicating that the
material violates local laws, or if the content violates MSN’s terms of use.
Maintaining global access: Microsoft will remove access to content only in the country
issuing the order. When blog content is blocked due to restrictions based on local laws,
the rest of the world will continue to have access. This is a new capability Microsoft is implementing in the MSN Spaces infrastructure.
114
Jonathan Zittrain and John Palfrey