Shaming Search Engines

There was a striking confrontation between the head of Yahoo and the family of a Chinese dissident in Congress today:

Two top Yahoo officials defended their company’s role in the jailing of a Chinese journalist but ran into withering criticism from lawmakers who accused them of complicity with an oppressive communist regime. . . . House Foreign Affairs Committee Chairman Tom Lantos . . . . angrily urged Yahoo Chief Executive Jerry Yang and General Counsel Michael Callahan to apologize to journalist Shi Tao’s mother, who was sitting directly behind them.

What can be done about such brutal censorship? Jennifer Chandler’s compelling article on internet intermediaries covers 2006 debates over the Global Online Freedom Act, which would have addressed such censorship.

According to Chandler,

Yahoo!, Microsoft, and Google have recently come under intense criticism for their apparent cooperation with the Chinese government’s online censorship and surveillance policies. This concern has culminated in the proposed Global Online Freedom Act of 2006 (“GOFA”), which was introduced in the House of Representatives on February 16, 2006. On June 22, 2006, a substitute version of GOFA (“GOFA (June)”) was introduced in the Subcommittee on Africa, Global Human Rights and International Operations.

The original version of GOFA required U.S. content hosting and search engine businesses operating in “Internet-restricting” countries not to comply with those countries’ filtering requirements. The substitute version has significantly loosened these requirements, but continues to instruct U.S. businesses to behave in a manner that may contravene foreign laws.


Under § 202 of the original version of GOFA, businesses that provide search engine services would be prohibited from altering the operation of the search engine with respect to “protected filter terms” at the request of the governments of “designate[d] Internet-restricting countries,” or in a manner that would be likely to produce different search results for users accessing the service from within the designated countries. This requirement was removed from GOFA (June). Under § 203 of GOFA (June), businesses providing search engine services would be required to report to a newly-created Office of Global Internet Freedom the terms and requirements for filtering that are specified to them by the governments of designated countries.


One of the problems with GOFA is that it would penalize U.S. businesses for doing in a country such as China something that is either legal there or required by Chinese law. Although the June version substantially softens GOFA, removing many of the provisions that would most likely require U.S. businesses to contravene foreign laws, it retains the prohibition of blocking “United States-supported Web site[s]” or “United States-supported content,” which includes material created by the U.S. Government and government-supported international broadcasting entities. Contravention of this provision exposes U.S. businesses to both civil and criminal penalties.

These are all difficult issues, and I am concerned that a bill like GOFA would have unintended consequences. For example, periodic “freezes” of Google by the Chinese government (in retaliation for its abiding by GOFA) could just lead Baidu to gain a greater market share there–and it would not be bound by any US law. I also fear that our Congress’s interest in granting retroactive immunity to phone companies may just extend to the search sphere. Finally, given the U.S.’s huge and ever-growing debt to China, it’s hard to imagine us imposing trade sanctions with much teeth. Given these challenges, we may just be scroogled. Lantos’s shaming sanctions may be the most pressure we can collectively bring to bear on search giants.

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