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Technology’s Threat to Human Rights and Free Speech

techhumanrights103008.jpg[ATTN Lawyers and human rights activists: before you next use Skype, be sure to read this important report]

Here is a question: should we be relieved or even more worried by the announcement this week that the top three internet giants have adopted a common set of principals known as the Global Network Initiative (GNI), which promises greater protection of human rights and free speech with respect to each company’s business operations under repressive regimes?

On the one hand, this is a bold step forward in corporate foreign policy, as Google, Yahoo, and Microsoft have taken the unprecedented action of all committing to the same voluntary code of conduct, one that was crafted by reputable organizations such as Human Rights Watch and the Committee to Protect Journalists.

There is a fair argument that coordinated compliance could have a multiplier effect.

Robert Boorstin of Google explains to the WSJ that “Common action by these diverse groups is more likely to bring about change in government policy than the efforts of any one company or group acting alone.

On the other hand, we would be hopelessly naive to think that the creation of the GNI were a gesture of corporate altruism, rather than a last ditch effort to repair their tarnished reputations after several high profile cases of privacy violations and complicity in human rights abuses. Although the code of conduct will have implications for all countries, including Russia, this CSR push comes in response specifically to China, which in 2005 jailed the dissident journalist Shi Tao after Yahoo surrendered his identity, and on Oct. 1, when a Canadian research report indicated that Skype allows the Chinese government to monitor calls.

As a lawyer who represents clients in extremely politically sensitive cases from Latin America to Russia to Asia, and one who has seen their defense negatively impacted by the conduct of certain foreign businesses and individuals, I cannot overemphasize to my friends and colleagues the importance of how tech companies choose to engage with authoritarian governments. This is something to watch very closely.

First, I know of many lawyers, journalists, and dissidents working in Russia who regularly use Skype with the belief and trust that it is safe from the wiretapping efforts of Kremlin authorities (and believe me, this government is trigger happy to establish complete surveillance operations without warrants).

Here is the message to take away: Stop using Skype for sensitive conversations until further notice!

To understand the terrifying violations of privacy being committed by the Chinese authorities (and likely the same kind of information available to the FSB) along with the complicity of technology companies, I refer to this excerpt from the introduction to the Canadian report, Breaching Trust: An analysis of the surveillance and security practices on China’s TOM-Skype platform:

Here we have a major software tool used to make telephone calls and send instant messages over the Internet, advertising secure end-to-end encryption, and widely touted by activists and dissidents as a safe way to communicate sensitive information, logging sensitive keywords and uploading entire transcripts of conversations to servers in China, which themselves are insecure.

How insecure?Villeneuve was able to view, download, and archive millions of private communications, ranging from business transactions to political correspondence, along with their identifying personal information. Although some have mooted that Skype is equipped with a backdoor for intelligence, and that TOM-Skype in particular contained a Trojan Horse for the Chinese government, the company publicly denied these suspicions.

Villeneuve’s research definitively shows these denials are untrue. Although Villeneuve’s trail runs cold at the doorstep of eight TOM-Skype servers in China, the underlying purpose of such widespread and systematic surveillance seems obvious. Dissidents and ordinary citizens are being systematically monitored and tracked.

It’s also important to consider the details of this initiative in light of the demonstrated interest of the Kremlin in monitoring, controlling, and censoring communication via internet. In the past we’ve reported on the formation of new government oversight bodies to censure the web, concerns raised by the new owners of LiveJournal, and the numerous instances of high profile hacking attacks against Estonia, Georgia, and Radio Free Europe.

It would not be difficult to imagine any single one of these large technology groups to find itself under pressure from the Russian government to share private information, remove or change online content, or provide access to email accounts and other emerging communications technologies.

We have already seen some influence exercised via informal networks back when unidentified YouTube users succeeded in removing a video which I had uploaded revealing prison abuse and torture in Yekatrinburg, brought to me by Lev Ponomarev. After numerous, coordinated “complaints,” the video was pulled down by YouTube and declared as obscene for its “inappropriate nature.” Thankfully, after weeks of unanswered communications, the Wall Street Journal published two articles and the video was suddenly reinstated.

So why am I not feeling more celebratory with the news of the adoption of the GNI? Aside from the fact that it seems motivated by the jailing of Shi Tao and Skype’s complicity with Chinese espionage, I worry that the guidelines set forth in these documents do not go far enough, and certainly express no proactive measures to protect and defend human rights and free speech in places like Russia and China.

It appears like a potemkin wallpaper to cover liability – and indeed liability will be the operative focus given that there is growing interest in the application of alien tort claims against companies complicit in the violation of human rights.The unfortunate fact remains that most executives running these types of companies working under repressive regimes view relations with any given government as a path to next quarter’s profits. They seek minimal turbulence and no disagreements with the state, often to the detriment of their local employees and consumers. They don’t seem realize that encouraging the protection of human rights, rule of law, and freedom of speech can in many cases contribute to more successful business operations as the economy opens and grows.

The GNI guidelines are ambitious and lofty on paper, and that is certainly commendable. But in implementation, the guidelines are a collection of agreed upon definitions and a road map for the avoidance of conflicts, rather than the prevention of violations and protection of rights. It’s going to take more action from the world’s leading companies to make real improvements beyond just choosing to stand in the corner as an impartial bystander.

Image Credit: Daily Galaxy via MaximumPC.com