code, whether or not embodied in formal law—that might attack parts of the problem, but
would unlikely resolve the conflict outright. Such approaches might include funding for prodemocracy activities in the online context, banning the sale of certain technologies, banning
the location of servers in certain places, or applying pressure in the context of trade negotiations on those states that are placing the corporations in the hard position.
A member of the United States Congress, Rep. Chris Smith of New Jersey, introduced the
Global Online Freedom Act (GOFA) in 2006
9 and again in 2007.
10 This proposed legislation
would establish ‘‘minimum corporate standards for online freedom’’ and would impose export
controls on the sales of any item ‘‘to an end user in an Internet-restricting country for the purpose, in whole or in part, of facilitating Internet censorship.’’ The legislation’s intent is laudable:
to limit the extent to which United States–based corporations participate in censorship and
surveillance in other states.
The shortcomings of GOFA point to the difficulty of enacting second-order regulation on
this topic at this moment in history. Some of the provisions, such as the requirement that no
servers are to be located within the borders of a state deemed to be ‘‘a designated Internetrestricting country,’’ might well achieve the statute’s aims by simply disallowing most companies from competing in the foreign market in question; providing a service from abroad will
often be too slow or too limited by state-level firewalls or filtering to provide a compelling service to the targeted customers, as Google learned in China.
11
GOFA would also require a United States–based corporation to check with the State Department before providing ‘‘to any foreign official of an Internet-restricting country information
that personally identifies a particular user of such content hosting service.’’ When combined
with a private right of action for any citizen aggrieved by a violation of that section, these provisions are likely to be such an administrative burden on both private and public parties as to
be unworkable. The export controls are impossible to evaluate on the merits, since the legislation simply calls upon the secretary of state and the secretary of commerce to work out regulations within ninety days of enactment of the Act. Given the fact that no specifics are
provided on the export controls in the proposed Act after months of formal and informal hearings, drafting, and discussion, one is led to believe that coming up with such regulations in
ninety days will be a substantial challenge.
Another reason not to rely upon traditional legal mechanisms in this context is that a globally coordinated set of standards will almost certainly take so long to put in place that the
contours of the problem will have changed beyond recognition by the time of enactment.
Changes to the relevant statutes or treaty may be equally hard-won. The challenge of coordinating adjustments over time across multiple regimes would be enormous. Laws fashioned
in this fast-moving environment will function as a hopelessly trailing indicator, especially if an
industry-led process does not precede the legislative approach to the problem. The GOFA
drafting experience in the United States suggests that law should be seen as a component
of a solution, and perhaps the way to memorialize what the relevant industry members adopt,
but not the initial approach.
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Jonathan Zittrain and John Palfrey
would unlikely resolve the conflict outright. Such approaches might include funding for prodemocracy activities in the online context, banning the sale of certain technologies, banning
the location of servers in certain places, or applying pressure in the context of trade negotiations on those states that are placing the corporations in the hard position.
A member of the United States Congress, Rep. Chris Smith of New Jersey, introduced the
Global Online Freedom Act (GOFA) in 2006
9 and again in 2007.
10 This proposed legislation
would establish ‘‘minimum corporate standards for online freedom’’ and would impose export
controls on the sales of any item ‘‘to an end user in an Internet-restricting country for the purpose, in whole or in part, of facilitating Internet censorship.’’ The legislation’s intent is laudable:
to limit the extent to which United States–based corporations participate in censorship and
surveillance in other states.
The shortcomings of GOFA point to the difficulty of enacting second-order regulation on
this topic at this moment in history. Some of the provisions, such as the requirement that no
servers are to be located within the borders of a state deemed to be ‘‘a designated Internetrestricting country,’’ might well achieve the statute’s aims by simply disallowing most companies from competing in the foreign market in question; providing a service from abroad will
often be too slow or too limited by state-level firewalls or filtering to provide a compelling service to the targeted customers, as Google learned in China.
11
GOFA would also require a United States–based corporation to check with the State Department before providing ‘‘to any foreign official of an Internet-restricting country information
that personally identifies a particular user of such content hosting service.’’ When combined
with a private right of action for any citizen aggrieved by a violation of that section, these provisions are likely to be such an administrative burden on both private and public parties as to
be unworkable. The export controls are impossible to evaluate on the merits, since the legislation simply calls upon the secretary of state and the secretary of commerce to work out regulations within ninety days of enactment of the Act. Given the fact that no specifics are
provided on the export controls in the proposed Act after months of formal and informal hearings, drafting, and discussion, one is led to believe that coming up with such regulations in
ninety days will be a substantial challenge.
Another reason not to rely upon traditional legal mechanisms in this context is that a globally coordinated set of standards will almost certainly take so long to put in place that the
contours of the problem will have changed beyond recognition by the time of enactment.
Changes to the relevant statutes or treaty may be equally hard-won. The challenge of coordinating adjustments over time across multiple regimes would be enormous. Laws fashioned
in this fast-moving environment will function as a hopelessly trailing indicator, especially if an
industry-led process does not precede the legislative approach to the problem. The GOFA
drafting experience in the United States suggests that law should be seen as a component
of a solution, and perhaps the way to memorialize what the relevant industry members adopt,
but not the initial approach.
118
Jonathan Zittrain and John Palfrey