Barriers to knowledge

28Jun07

The Google Public Policy Blog reports that Google is asking the US government (among others) to consider pursuing a WTO complaint against China on a matter that seems to combine the good and the profitable: that censorship constitutes a barrier to trade for the information industry. Despite Google’s much-publicized agreement with China to co-operate in censoring its search results (in order to avoid a blanket ban), the post maintains that “it is fair to say that censorship constitutes the single greatest trade barrier we currently face”.

There are a couple things to consider, were this to gain some traction. One factor is that while it’s difficult to imagine an authoritarian regime giving up a tool so vital to control over its citizens solely at the bequest of international law, China is in a very vulnerable position at the WTO. Its ascendancy to the organization in 2001 has been key to its industrial boom; without membership in it and GATT/GATS, there would very little stopping Canada, the US and Europe from slapping protectionist measures on Chinese imports.

Given the high level of hostility to Chinese trade, for reasons of human rights, economic nationalism and latent anti-Communism, this is a real possibility. When coupled with China’s hunger for markets to feed its booming industries (and other countries’ fears of being swamped by said industries, like Quebec’s textile market), it’s clear that if leverage is needed to improve its free speech record, then the WTO is the place to go.

The US-China relationship at the WTO, however, may not be the best option; this is why it’s not just a matter of politeness that Google is also courting EU member states for a white knight (only states have standing, so Google can’t pursue this complaint on their own). The conditions China agreed to in its 14-year ascendancy agreement allow some trade barriers to be placed on it which full-fledged WTO members are protected from, and the US has been using exploiting them as much as possible. With this tension already in monumental proportions, throwing censorship on top of the pile may not have much success.

At issue would be whether information industries are considering purveyors of goods (as regulated under the General Agreement on Trade and Tariffs) or services (as regulated under the General Agreement on Trade in Services). It would be in Google’s interest for information to be considered a good, since trade rules tend to be stricter on goods, while services have more loopholes and lenient regulation, since member states’ attachment to them is a little more delicate.

Of interest is the fact that Google makes it clear that to them, “[s]ome forms of censorship are entirely justifiable”, their example being child pornography. Presumably, this means that the politically repressive censorship practiced by China is of a fundamentally different nature. There are, however, other forms of censorship which are more well-intentioned, but would still fall foul of both international trade agreements and, I suspect, Google.

An example of this lies in the closest thing to precedent that this complaint would have, a case well-known to Canadian cultural nationalists, Canada – Certain Measures Concerning Periodicals [.pdf]. The WTO appellate body ruled that the Department of Hertige’s attempt to protect the domestic magazine industry from American competition, via an excise tax and an indirect postal subsidy, constituted an unfair barrier to trade. While not censorship per se – although many CanCon regulations are, in my opinion – this does show that limiting information flows can be considered a commercial impediment. Significantly, in this decision, information – at least in a textual form – was ruled to be a service.

I’ve never been a fan of the theory that economic rights are necessarily conducive to political and civil rights; in fact, China is the best example against it. While economic freedoms are increasing in its state-administered capitalism, freedom of speech and other political activity are being limited at the same pace. However, even if the two rights aren’t intrinsically linked, perhaps this case could show that they are legally linked.

If this complaint were to have any success at all, it would demonstrate how the best chances of pursuing political-civil rights on the international stage could be through the legal guarantees of economic rights. Unfortunately, while international human rights law is still weak in many ways, international trade law seems to be accumulating more and more power. Google may have found a way to use that to their (and everyone’s) advantage.

There is a downside to this route of information liberation, though: commercial information flows could be privileged over non-commercial ones. Another digital knowledge giant – and one which has refused a compromise with China, and thus, is completely censored – is Wikipedia, which as a project of a non-profit corporation presumably would not be protected under GATT/GATS. It would seem perverse if we lived in the letter-of-the-law world where China stopped censoring a search engine, but continued to block the biggest encyclopedia in history. When freedom of speech is purely a right to do business, however, this is a natural result.

[Wikipedia is a bad example, of course, since all of its text can be freely reproduced for commercial or non-commercial purposes under the GNU Free Documentation License, and there are already many Wikipedia mirror sites which generate ad revenue by essentially copy and pasting. Given that, anyone could found Wikipedia-China Inc., mirror the encyclopedia, and be legally protected. The point still stands, though – we can imagine other non-commercial sources of information with more restrictive licenses.]

While academically interesting, the fact that most trade cases have a 20 year timeline leads me to believe that the point is moot, and technology will solve the censorship problem before law will. Obviously, technology is what helps the Chinese government keep its Big Brother so ubiquitous; on the other hand, clever technology is also helping anti-censorship efforts. For example, psiphon is a decentralized filter-bypassing program (developed by the University of Toronto’s Citizen Lab) which seems virtually invincible, albeit small-scale; I’m sure many other tools will emerge as information technology grows and grows.

Nonetheless, Google’s reputation for having smart people and smart ideas seems to be extending easily into the legal and public policy fields. The same company that pioneered smart searching and information management could also lead the way in international law.

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