guards so that Internet users will know the extent to which their communications have been
restricted, altered, or censored due to the contributions of a signatory. The code can bind
firms to act only where required, and only where the demands placed upon it are specific
and formal. That code must be coupled with the establishment of a reliable mechanism for
monitoring and compliance assurance. This approach could, at once, be responsive to the
nuanced issues involved, flexible over time as the technologies and politics shift, and sustainable over the long-term. Such a process ought to include at the table the NGO community in a
supportive, nonadversarial, mode. State regulators might also be drawn into the process in
constructive ways. The affected industry need not—and ought not—go it alone.
Though the environment is too complex and unstable for the standard modes of lawmaking
to work in the near-term, states do have a role to play in helping to resolve this tension. A
patchwork of competing state laws that restrict corporations chartered in one locale in how
they do business in this regard could be counterproductive in others. The challenges inherent
in framing the Global Online Freedom Act of 2006 and 2007, in the United States context,
point to some of the many hazards of this approach.
The proper role of the state in the context of addressing this problem is twofold. First, those
states that are more concerned with what their corporations are doing elsewhere should
support and encourage the corporations as they seek to work together to raise the bar for
themselves and their competitors. That support might come in the form of involvement and
encouragement as the industry works with the NGO and academic communities to derive a
set of ethical guidelines. Support might also mean using leverage in trade negotiations to
lessen the extent that corporations are placed in this position in the first place—in other
words, true state-to-state battles against first-order regulation so that second-order regulation
is not necessary. Where constructive, states might consider rule-making that ties the hands of
their corporations to provide support for their refusal to operate outside of the bounds of these
ethical constraints. But states are unlikely to be able to lead constructively and quickly enough
to address this problem alone. States may in fact play their role best as ‘‘fast-followers’’ to ensure that the industry-led process results in meaningful and effective second-order regulation
of corporate action in these contexts.
On a fundamental level, the states that are increasing Internet filtering and surveillance
themselves are best positioned to resolve this tension. In some instances, the primary driver
for change might be a careful review of the human rights obligations, whether through treaty
or otherwise, that place limits on state sovereignty to act in this manner. Human rights activists may prompt this review through litigation if states do not undertake it themselves. In other
instances, the driver might be economic; there is little argument that the development of a
competitive environment for businesses using ICTs is a positive factor in economic growth,
particularly of developing economies. In either event, states that place restrictions on Internet
usage and seek to leverage network usage for purposes of surveillance outside the bounds of
human rights guarantees do so at some political and economic peril.
Corporate Ethics on a Filtered Internet
121
restricted, altered, or censored due to the contributions of a signatory. The code can bind
firms to act only where required, and only where the demands placed upon it are specific
and formal. That code must be coupled with the establishment of a reliable mechanism for
monitoring and compliance assurance. This approach could, at once, be responsive to the
nuanced issues involved, flexible over time as the technologies and politics shift, and sustainable over the long-term. Such a process ought to include at the table the NGO community in a
supportive, nonadversarial, mode. State regulators might also be drawn into the process in
constructive ways. The affected industry need not—and ought not—go it alone.
Though the environment is too complex and unstable for the standard modes of lawmaking
to work in the near-term, states do have a role to play in helping to resolve this tension. A
patchwork of competing state laws that restrict corporations chartered in one locale in how
they do business in this regard could be counterproductive in others. The challenges inherent
in framing the Global Online Freedom Act of 2006 and 2007, in the United States context,
point to some of the many hazards of this approach.
The proper role of the state in the context of addressing this problem is twofold. First, those
states that are more concerned with what their corporations are doing elsewhere should
support and encourage the corporations as they seek to work together to raise the bar for
themselves and their competitors. That support might come in the form of involvement and
encouragement as the industry works with the NGO and academic communities to derive a
set of ethical guidelines. Support might also mean using leverage in trade negotiations to
lessen the extent that corporations are placed in this position in the first place—in other
words, true state-to-state battles against first-order regulation so that second-order regulation
is not necessary. Where constructive, states might consider rule-making that ties the hands of
their corporations to provide support for their refusal to operate outside of the bounds of these
ethical constraints. But states are unlikely to be able to lead constructively and quickly enough
to address this problem alone. States may in fact play their role best as ‘‘fast-followers’’ to ensure that the industry-led process results in meaningful and effective second-order regulation
of corporate action in these contexts.
On a fundamental level, the states that are increasing Internet filtering and surveillance
themselves are best positioned to resolve this tension. In some instances, the primary driver
for change might be a careful review of the human rights obligations, whether through treaty
or otherwise, that place limits on state sovereignty to act in this manner. Human rights activists may prompt this review through litigation if states do not undertake it themselves. In other
instances, the driver might be economic; there is little argument that the development of a
competitive environment for businesses using ICTs is a positive factor in economic growth,
particularly of developing economies. In either event, states that place restrictions on Internet
usage and seek to leverage network usage for purposes of surveillance outside the bounds of
human rights guarantees do so at some political and economic peril.
Corporate Ethics on a Filtered Internet
121