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by Allon Bar
Global Engagement Fund Undergraduate Fellow Jon Diamond reports on the recent panel held at CGCS featuring Google’s Senior Policy Analyst Dorothy Chou and other experts, as part of the cross-disciplinary, university-wide “New Technologies, Human Rights, and Transparency” project funded by the university’s Global Engagement Fund and hosted by Annenberg’s Center for Global Communications Studies in partnership with Wharton, Penn Law, Engineering, and the School of Arts and Sciences.
In a presentation to students, faculty, and visiting scholars at the University of Pennsylvania last Wednesday, Google’s Senior Policy Analyst Dorothy Chou described Google’s flagship digital rights initiative, the Transparency Report. Updated twice a year, the report documents requests that Google receives from governments all over the world to remove content and hand over user data. It also documents country-by-country internet traffic patterns, which enables the public to know in real time when certain Google services have been blocked or even when Internet access is cut off to an entire country. Google’s report thus provides a wealth of data on the censorship and surveillance policies of national governments, and how Google responds to those policies. This data thus offers a powerful tool for netizens to hold their governments – and Google itself – to account for either violating or protecting Internet users’ rights to free expression and privacy.
The Internet, according to Chou, represents a new form of social contract, made not only between governments and their citizens but also between information and communications technology (ICT) companies and their users. Whereas private individuals once surrendered certain freedoms to the state in return for the guarantee of their rights, today they do so with companies as well—each time they click “Agree” to a terms of service agreement. In the same way that governments must be accountable to their people, so does Google believe that companies should be accountable to their users. Google’s Transparency Report, and similar reports now published by Twitter, Microsoft, and others, represent an important tool for users seeking to exercise their digital rights in the face of legal uncertainties. Joined by a panel of international experts from the BRIC countries, Chou discussed the impact of corporate transparency reports and the prospects for broader efforts on the part of the ICT companies worldwide.
Google, Raising the Bar on Corporate Transparency
Google’s report, the first of its kind, was launched in 2010 as one of Google’s “20% projects,” the creative side-projects to which Google employees are allowed and encouraged to devote 20% of their work time. The report reflects Google’s commitment to principles developed by the Global Network Initiative, a multi-stakeholder organization devoted to free speech and privacy online. At first, the report tracked only content removal requests from copyright owners and governments and government user data requests, but has since expanded to include more granular data on the nature of different requests and whether Google complied, and also visualizations of internet traffic patterns on a national scale in (near) real-time. Even over the approximately three years that Google has published its biannual report, several clear patterns have come into focus. On the one hand, the volume of content removal and user data requests from governments has grown steadily since 2010, while removal requests from copyright owners have exploded over the past year or so. On the other hand, Google has demonstrated an increasing willingness to pose legal challenges to government requests. Indeed, only last week, Google filed a petition against one of the U.S. government’s top-secret “national security letters,” user data requests which come with built-in gag orders.
Ultimately, Chou remarked, Google aims to be a neutral intermediary. Companies are not elected and thus should not be the ones to decide what is and is not legal. That is a job for the courts. Though its bold stance free expression, particularly, can be financially and some cases politically costly for Google, in the end, Chou said, the company has a long-term interest in upholding digital rights in order to build and preserve user trust. In apparent recognition of this long-term business interest, not to mention the broader moral case for digital rights, a number of other major ICT companies including Twitter, Dropbox, LinkedIn [pdf], and now Microsoft have joined Google in publishing regular reports on their policies and practices regarding government requests.
Even as Chou describes Google’s transparency report as a “numerator without a denominator,” there are indications that its efforts have already had an impact—both on ICT corporations and on public debate more generally (see below). The data from the transparency report has also been picked up by civil society groups, who have adapted Google’s findings to produce new and compelling products, such as the Electronic Frontier Foundation’s visualizations. Governments, corporations, and civil society have all taken note of Google’s efforts, and with more such efforts on the horizon, there is good reason to hope for heightened public awareness and increased levels of accountability and transparency in sphere of digital rights. Whether this emerging standard of transparency reporting will continue to expand to the rest of the global ICT sector, however, remains to be seen.
Russia
Leading off the expert panel, Gregory Asmolov, a PhD candidate at the London School of Economics and founding contributor to the Global Voices “RuNet Echo” project, spoke on the prospects for greater corporate transparency in an increasingly authoritarian Russia. By way of background, Asmolov noted a strong push toward the regulation of the Russian Internet over the past year, including legislation passed last November giving the government broad authority to censor online content deemed illegal or harmful to children. Although the law’s stated goal, child protection, is entirely uncontroversial, it is ultimately subject to wide range of interpretations—and thus official abuse. According to an article from RuNet Echo, the child protection law has been used to take down popular torrent site RuTracker and online library Lib.rus.ec. “While both are hotbeds of piracy,” writes Andrey Tselikov, “they were blacklisted in accordance with the new law, not intellectual property statutes.” Transparency reporting like Google’s has the potential to shed light on similar cases by documenting the legal authorities invoked in each removal request. If the Russian government is not held to account in this way, and if companies are not put under closer scrutiny regarding the way in which they comply with government demands, free speech will continue to be threatened by over-broad application of existing censorship law.
A second issue with transparency in the Russian context, according to Asmolov, is the government’s network of informal relationships with Russian corporations. Unlike in the United States, where the majority of government requests are made through (debatably) legal channels, the activities of many Russian ICT companies can be regulated with a simple phone call from Moscow. During the country’s recent parliamentary elections, for instance, the Federal Security Service (FSB) called the head of popular Russian social media site VKontakte to request the removal of content posted by anti-fraud watchdogs. In this particular case, the request was refused in what the VKontakte official described as a “business decision” rather than a political move. Yet Asmolov expressed his doubts regarding a business case for transparency in Russia, given a lack of awareness of these issues among Russian users. A third and final stumbling block to greater transparency in Russia, in Asmolov’s view, is a characteristically Russian cynicism toward the very idea of “transparency.” Could a company like VKontakte ever be convinced to do a report like Google’s? Perhaps, conceded Asmolov, but no one would believe it.
India
Touching on some of the same challenges, Malavika Jayaram of the Center for Internet and Society in Bangalore and Visiting Scholar at the Center for Global Communications Studies described the state of digital rights and corporate transparency in India. The government of India has come under close scrutiny for recent instances of censorship that were facilitated by the overbroad language of certain provisions of the Indian Information Technology Act, and intermediary liability guidelines made under it. She also described the dialogue that the government has initiated with powerful ICT corporations and telecommunications companies, requesting them to monitor and pre-censor content and citing concerns around national security, law and order and fragile religious sensibilities. These sorts of informal mechanisms would bypass legal procedures and make content removal effectively “invisible.” Jayaram said that efforts such as the Google Transparency Report helped demonstrate the gaps between the government’s lip service to internet freedom and its actual practices.
Certain provisions of the IT Act (and the rules and guidelines made under it) have received harsh criticism, most recently from the Parliamentary Standing Committee on the Information Technology (Intermediary Guidelines) Rules [pdf]. The report cites, among other issues, “ambiguous and over-reaching language,’ permitting censorship of material deemed “blasphemous” or “disparaging,” among other terms poorly defined by the IT Rules. The report also address certain issues with the Cyber Café Rules, which violate privacy in a quest for greater transparency and surveillance. The report critiques the Cyber Café Rules as a violation of citizens’ right to privacy, requiring, for example, that all computer screens in cyber cafés face the “open space” of the café, but unfortunately does not address the greater issue of logs of patrons’ browsing histories being maintained for a minimum of one year. Thanks to these strict regulations, Jayaram remarked, anonymity has gone “out the window.” Jayaram cited a Nokia study which showed that four out of the top five apps in India (by download) are privacy related, which shows that Indians are not as culturally predisposed to ignoring privacy as is generally believed. In the current environment of various threats to internet freedom, she is positive about the potential impact of greater corporate transparency in India.
Brazil
Unlike Russia and India, Brazil has suffered from a glaring dearth of legal guidelines governing privacy and free expression online. As Director of Fundação Getúlio Vargas (FGV) Law School’s Center for Technology and Society Ronaldo Lemos pointed out, this lack stems in part from Brazil’s unique legal system, which does not follow the principle of stare decisis, commonly known as “precedent,” that undergirds the U.S. legal system, for example. The only binding legal decisions in Brazilian justice are those issued by the Supreme Court, which has not yet heard any cases regarding Brazilians’ digital rights. Accordingly, the various decisions on these rights reached in the lower courts are in no way binding on other courts and the state more generally. The resulting absence of a coherent legal regime regulating online privacy and free speech thus facilitates a remarkably large number of government content removal and user data requests, as indicated in Google’s Transparency Report (the third highest after the United States and Germany.)
That is not to say the Brazilian government has not considered more sweeping legislative action on ICT issues. According to Lemos, Brazil experienced its own version of the Unites States’ infamous debate over SOPA and PIPA in the late 2000s. Like SOPA and PIPA, the Brazilian cyber security/cyber crime legislation was struck down with the help of civil society, which demanded stronger protections for human rights. Shortly after the bill was defeated, the Brazilian Ministry of Justice and the FGV Law School worked closely together to develop the Marco Civil da Internet, which aims to safeguard citizens’ rights to privacy and internet access as well as principles like net neutrality. Described by Lemos as a “dream law,” the Marco Civil has garnered the support of Brazilian broadcasting corporations as well as major telecommunications companies. Such levels of support would not have been possible without the help of data from Google’s transparency report, said Lemos. Thus Google has had an impact not only on other ICT companies but on the legal process itself, adding to public debate in jurisdictions without strong protections for digital rights.
China
In stark contrast to Lemos’s optimism about digital rights in Brazil, Peking University School of Journalism and Communication Professor Hu Yong painted an admittedly “pessimistic” picture of transparency in the People’s Republic of China. Noting that Chinese companies have little to no bargaining power within the existing system, Hu doubted whether stances such as Google’s could ever gain traction with other companies in the People’s Republic of China. The current censorship regime in China is opaque, though users are sometimes notified of content takedowns. And while censorship is often accepted as a fact of life on the Chinese Internet, users have occasionally banded together to protest what they view as abuses of government and corporate power. Hu recalled a particular case in which a prominent lawyer’s online accounts and posted content were summarily deleted, prompting a huge outpouring of support from Chinese netizens on Sina Weibo, one of China’s most popular microblogging services. Chinese Internet users are thus increasingly aware of the struggles they face yet remain largely incapable of meaningful organization.
Largely, but not entirely incapable. New America Foundation Senior Fellow Rebecca MacKinnon commented on the case of Green Dam, a content censorship software the Chinese government moved to have pre-installed on all personal computers in 2009. Allegedly designed to block content inappropriate for children, e.g. pornography, Green Dam’s blacklists included a large number of “politically sensitive” websites which had no apparent relationship with child safety. In response to vigorous online protests, the Chinese government ultimately stood down, making Green Dam merely “optional.” It is crucial to note, however, that the success of this opposition was possible only due to strong push-back against the software mandate by domestic and international business, plus disunity within the Chinese government about whether Green Dam should have been mandated in the manner that it was. Since 2009, no such opposition has gained traction among Chinese netizens, and in the absence of concerted corporate support, top-level reforms, or future intra-governmental divisions, it is unlikely to do so any time soon. Nevertheless, the Green Dam case demonstrates a growing awareness of and interest in digital rights in China.
Whether Chinese companies will ever follow in Google’s steps remains unclear. It is possible, Hu conceded, that transparency could gain traction among China-based corporations if they choose to expand more internationally, as Tencent has already begun to do with its WeChat instant messaging client. Chinese companies could eventually be forced to compete with Western companies like Google and Twitter not only on quality of service but on emerging values like transparency and privacy protections as well. The Ranking Digital Rights project undertaken by the Center for Global Communications Studies in conjunction with the New America Foundation Open Technology Institute, Internews, and other partners hopes to contribute to such a future by creating the conditions for just this sort of competition.
Beyond corporate accountability, it is evident especially from the cases of Russia, China, and India that governments too must answer for their policies on internet censorship and surveillance. As Chou and the other panelists affirmed, Google’s transparency report provides a wealth of data that can be brought to bear on governments. Indeed, its potential has already been realized to some extent by elements of civil society in Brazil by generating support its Marco Civil. To the extent that others can make use of this and other data from governments and corporations alike, transparency stands a real chance of gaining global acceptance.
