The Great Firewall vs. the DMCA

Which One Actually Damages Freedom More?

by Kai MacTane

Home > News > Op/Ed > The Great Firewall vs. the DMCA

The big talk of the tech world this past week has been the US Congressional hearings regarding the Chinese operations of high-tech companies like Google, Yahoo!, and Cisco. Christopher Smith (R-NJ) described the companies’ actions as “sickening collaboration”, and Tom Lantos (D-CA) professed not to “understand how your corporate leadership sleeps at night”. Lantos even pulled a page from Joseph Welch’s playbook and asked each exec in turn, “Are you ashamed?”

The same Congress that passed the Communications Decency Act is claiming that they’d have to go to Google if they “wanted to learn how to censor”. And nobody is calling them on it?

The tech world was quick to respond with a farrago of points, all of them cogent. The highlights of the high-tech defense against Congress’ accusations are:

  1. Despite being founded and based in the United States, companies such as Google, Microsoft, Yahoo! and Cisco are not ambassasdors of liberty or the standard-bearers of democracy; they are commercial corporations, and their only reason for being is to make money. It is quite simply not their job or their responsibility to pressure national governments to move toward democracy.
  2. In fact, that responsibility most naturally rests with the US government, which has positioned itself as the standard-bearer for democracy for over two hundred years now. The US government should be pressing Beijing to uphold human rights and abandon its repressive totalitarian policies. Instead, the US government has extended NTR, or Normal Trade Relations status to China, with Congress’ collaboration, not revoking NTR even after the Tiananmen Square Massacre. Businesses are supposed to place profit above all else; what’s the US government’s excuse for doing the same?
  3. Finally, tech companies aren’t the only ones doing business in China. Why is Congress not complaining about “the thousands of retail companies that import merchandise” from China? Wal-Mart alone imported US$12 billion worth of merchandise from China in 2002, and was up to US$18 billion in 2004. Indeed, Wal-Mart’s imports from China are estimated to make up 10% of the US’ total; why is Sam Walton not being grilled by Congressional committees?

These are a trio of strong arguments, even if the last one hasn’t gotten as much airtime as the first two. But even as these arguments are mounted, and Congress debates a bipartisan bill to restrict the activities of American companies doing business in China, there’s another tech story that’s being ignored... and it’s one that has an interesting bearing on this whole Sturm und Drang.

Google filed a legal brief continuing its refusal to give confidential information to the US Department of Justice, which last month issued a subpoena for a distressingly large amount of data about routine and random search queries at Google and other major search engines. Just as it complied with the Chinese government’s request for information that later led to the arrest of journalist Shi Tao, Yahoo! complied with this request from the US government. So did MSN and AOL. Only Google refused, and the resulting court case and news coverage may be the only reason we know about these subpoenas in the first place.

Incidentally, it seems that the quantity of data initially reported last month (a week of search queries and one million pages) is small potatoes compared to what the DoJ originally asked for: two full months’ worth of queries, and all URLs in Google’s index that could possibly be found by any conceivable query!

Despite their “Don’t be evil” motto, Google doesn’t claim to be opposing the government on principle in this case. Instead, they say they’d have to give up trade secrets and proprietary information in order for the rest of the data to make any sense. But regardless of Google’s reasoning, their refusal to comply just highlights the fact that the other companies went along without a word.

That is, the other companies gave the US government just the same thing as they’ve given the Chinese government: anything and everything it asked for. In the light of this parallelism, the demands of Congress seem to translate as: “Don’t kowtow to the Chinese government. Kowtow to us, and us alone.” It’s apparently not sufficient that most high-tech companies will already give the US government any information it asks for; now Congress wants to make sure that it’s getting special treatment — that other governments don’t get the same information.

So the same government that’s currently lambasting the technology firms for cooperating with the Chinese government is... suing Google to gain its cooperation.

Under the circumstances, Rep. Anna Eshoo(D-CA)’s apparently serious claim that “Our most valuable export is democracy. That's what gives us our moral standing in the world. I don't think any American company can forget that”, does ring a bit hollow, doesn’t it? And when the main substance of the government’s complaint is that these companies have been “helping censor the Internet in China”, it seems laughable to anyone who’s observed the US government’s ongoing and repeated attempts to censor the Internet within its own borders. In fact, let’s not forget that the only reason the government issued the subpoena Google’s resisting is that it wants to try to revive COPA, already struck down by the Supreme Court as an impermissible restriction of free speech.

So when James Leach (R-IA) claims that “So if this Congress wanted to learn how to censor, we’d go to [Google],” this should be understood as nothing but grandstanding and highfalutin’ rhetoric. Congress already knows how to censor; it wrote the CDA, COPA, CIPA, and the DMCA. And passed them. The only reason the first two never took effect is because the Supreme Court, and the First Amendment, blocked them, but the fact that other entities stopped Congress’ attempts at censorship shouldn’t be held to Congress’ credit. (Indeed, the success of the last two simply shows that it took Congress a couple of tries to get it right.)

Indeed, in many ways, the DMCA has been the most successful of all Internet censorship laws. To begin with, it’s achieved its primary purpose of making MP3s and similar audio files nearly impossible to find. This is in marked contrast to China, where major portals like and have “MP3s” as a major search tab, much like Google’s “news” or “images” options. Indeed, a visitor from China to the US might wonder why you can’t find any MP3s on any of our search engines — “are your search engines being censored?” our Chinese visitor might ask. It’s as if some strange, music-shaped hole had been oddly carved out of the American version of the Internet. It’s sort of like the Tiananmen Massacre- and Falun Gong-shaped holes you’ll find in the Chinese version of the Internet.

“The duration of copyright protection shall be proportional to the time since the release of Steamboat Willie.”

But the DMCA hasn’t stopped there. It’s also made it so you can’t find any news about how to run the next version of MacOSx86 on hardware you didn’t buy from Apple. Nor can you find out anything else about Apple’s plans for the future unless Apple wants you to know. Oddly, this mirrors the situation in China, where you can’t find out anything about the Free Tibet Movement unless the government wants you to.

And CIPA has made it so that if you go to a library that receives federal E-Rate funding, your Internet access is automatically “protected” by filtering software, which blocks out... stuff. The companies that make the filtering software won’t tell you exactly what they block (like Google’s search queries and Apple’s plans for OSx86, that’s a trade secret). But it’s for your protection.

Bottom line: The US Congress already knows how to censor the Internet. They just have different motivations for the censorship; where China is worried about political unrest and the threat of unrestricted meditation, the United States worries more about someone seeing people having sex, or about a corporation not making as much money as they’d like. But upholding the corporate hegemony is just as important to the US Congress as upholding Chinese hegemony is to Beijing. Heck, maybe that’s the real difference between communism and capitalism: under communism, the government controls the economy; under capitalism, corporations control the government.

But either way, principles like freedom of information get screwed.

Congress seems to think it has some kind of moral high ground here. Even the tech sector and its defenders seem to mostly accept the unquestioned assumption that the US government isn’t as bad for the Internet as China. Maybe it’s time we looked at that assumption a little more closely.

Kai MacTane is the Freak Nation’s webmaster. He’s been watching Internet censorship and free-speech issues since 1996, when the CDA’s passage caused instantaneous rallies in San Francisco’s South Park. Sadly, he couldn’t attend because he was busy working on a web site at the time...