The California First Amendment Coalition (CFAC) is pushing the U.S. government to test the argument that international trade laws can be used to end Chinese censorship of the Internet.
The free-speech group petitioned the Office of the U.S. Trade Representative (USTR) to bring a complaint against China to the World Trade Organization (WTO), arguing that Chinese censorship impedes the ability of U.S. Internet companies to do business in China.
“Think of this as the biggest access-to-information and free speech case in history,” wrote Peter Scheer, executive director of CFAC, on the group’s Web site last week.
Yahoo and Google, which have both been heavily criticized for bowing to Chinese censorship demands, both have employees on CFAC’s board of directors.
CFAC’s petition rests heavily on arguments first put forth in a 2006 paper by Tim Wu [CQ], a professor at Columbia Law School. In that paper, Wu argued that international trade laws offered companies some protection against government censorship, particularly in cases where this tactic was used to shield domestic companies from international competition.
“Such measures seem destined for increased scrutiny over the coming decade,” wrote Wu, who serves as a consultant to CFAC.
Whether USTR takes up the case put forward by CFAC remains to be seen. However, in the event such a case does make it to the WTO, China is likely to argue in its defense that Internet censorship is a political issue and not a trade issue, and therefore beyond the WTO’s jurisdiction — a view that is commonly held by many nations.
Wu addressed that point in his 2006 paper, noting that WTO members have generally agreed that censorship is not an issue that concerns the trading body.
“Yet the WTO’s Appellate Body has already displayed a taste for taking treaty interpretation beyond a strict examination of what the major drafting powers might have intended; in truth the textual support for the blanket claim that censorship is exempt from WTO scrutiny is not very strong,” Wu wrote.
Wu argued WTO could move to limit Internet censorship rests, depending on how the body interprets terms such as “online information retrieval” and “data processing services” used in trade agreements drafted during the early 1990s and whether these terms include search engines like Google and Yahoo.
“If so, some countries may have opened broader access to their markets by foreign web sites than anyone has realized,” he wrote.