[Senate Hearing 110-643]
[From the U.S. Government Publishing Office]
S. Hrg. 110-643
GLOBAL INTERNET FREEDOM: CORPORATE RESPONSIBILITY AND THE RULE OF LAW
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HEARING
before the
SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MAY 20, 2008
__________
Serial No. J-110-93
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
45-688 PDF WASHINGTON : 2008
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
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Subcommittee on Human Rights and the Law
RICHARD J. DURBIN, Illinois, Chairman
EDWARD M. KENNEDY, Massachusetts TOM COBURN, Oklahoma
JOSEPH R. BIDEN, Jr., Delaware JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island SAM BROWNBACK, Kansas
Joseph Zogby, Chief Counsel
Brooke Bacak, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 4
prepared statement........................................... 90
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
prepared statement........................................... 95
WITNESSES
Chandler, Mark, Senior Vice President, General Counsel and
Secretary, Cisco Systems, Inc., San Jose, California........... 12
Ganesan, Arvind, Director, Business and Human Rights Program,
Human Rights Watch, Washington, D.C............................ 10
Samway, Michael, Vice President and General Counsel, Yahoo! Inc.,
Miami, Florida................................................. 8
Wong, Nicole, Deputy General Counsel, Google Inc., Mountain View,
California..................................................... 6
Zhou, Shiyu, Deputy Director, Global Internet Freedom Consortium,
Bethesda, Maryland............................................. 15
QUESTIONS AND ANSWERS
Responses of Mark Chandler to questions submitted by Senators
Durbin Coburn.................................................. 36
Responses of Arvind Ganesan to questions submitted by Senator
Coburn......................................................... 47
Responses of Michael Samway to questions submitted by Senators
Durbin and Coburn.............................................. 50
Responses of Nicole Wong to questions submitted by Senators
Durbin, Brownback and Coburn................................... 63
Responses of Shiyu Zhou to questions submitted by Senator Coburn. 81
SUBMISSIONS FOR THE RECORD
Amnesty International USA, New York, New York, statement......... 83
Chandler, Mark, Senior Vice President, General Counsel and
Secretary, Cisco Systems, Inc., San Jose, California, statement 86
Computer & Communications Industry Association, Washington, D.C.,
statement...................................................... 92
Ganesan, Arvind, Director, Business and Human Rights Program,
Human Rights Watch, Washington, D.C., statement................ 98
Harris, Leslie, President/CEO, Center for Democracy & Technology,
Washington, D.C., statement.................................... 107
New York Times, November 10, 2008, article....................... 117
Palfrey, John G., Jr., Clinical Professor of Law & Executive
Director, and Colin Maclay, Managing Director, Berkman Center
for Internet & Society, Harvard Law School, Cambridge,
Massachusetts, statement....................................... 119
Reporters Without Borders, Lucie Morillon, Director and Clothilde
Le Coz, Internet Freedom Director, Washington, D.C., statement. 128
Samway, Michael, Vice President and General Counsel, Yahoo! Inc.,
Miami, Florida, statement...................................... 138
Wong, Nicole, Deputy General Counsel, Google Inc., Mountain View,
California, statement.......................................... 141
World Organization for Human Rights USA, Washington, D.C.,
statement...................................................... 152
Zhou, Shiyu, Deputy Director, Global Internet Freedom Consortium,
Bethesda, Maryland, statements................................. 157
GLOBAL INTERNET FREEDOM: CORPORATE RESPONSIBILITY AND THE RULE OF LAW
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TUESDAY, MAY 20, 2008
U.S. Senate,
Subcommittee on Human Rights and the Law,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:07 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Cardin, Whitehouse, and Coburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Chairman Durbin. The Judiciary Committee's Subcommittee on
Human Rights and the Law will come to order. I notice the
witnesses are still standing, so I will ask at this point if
they will please raise their right hand and repeat after me. Do
you affirm that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Ms. Wong. I do.
Mr. Samway. I do.
Mr. Ganesan. I do.
Mr. Chandler. I do.
Mr. Zhou. I do.
Chairman Durbin. Thank you. Let the record reflect that the
witnesses have responded in the affirmative. Please be seated.
The subject of this hearing is ``Global Internet Freedom:
Corporate Responsibility and the Rule of Law.'' After a few
opening remarks, I will recognize my colleague Senator Coburn,
the Subcommittee's Ranking Member, for an opening statement,
then turn to our witnesses.
I just might say that this morning I visited the Newseum
for the first time, as part of a taping of a cable show for
Illinois. It is a very impressive place to visit. And I could
not think of a more timely visit in light of this hearing. They
have on display there a map of the world and a grading system
as to which countries in the world are most open and free when
it comes to speech and press and the basic freedoms which we
have enshrined in our Constitution. And, sadly, too many are
found deficient--even our own country, in many respects,
deficient in aspiring to the values that are part of our credo
as Americans. This was a perfect visit in terms of what we are
doing today in talking about the question of Internet freedom
and the responsibility of American companies around the world.
There is a tendency to view human rights as just a foreign
policy issue, but in this Subcommittee we have learned that is
an inaccurate perception. Our world is growing smaller every
day, a process accelerated by the Internet revolution. We have
seen that human rights violations in other countries can affect
us. To take one example, this Subcommittee has discovered that
over 1,000 war criminals from other countries have found safe
haven in the United States of America. On the other side, the
actions of the U.S. Government and U.S. companies affect human
rights in other countries.
In future hearings, we are going to explore the impact of
corporate America on other fundamental human rights, but today
we are going to focus specifically on the role of U.S.
technology companies in Internet freedom around the world.
In 1791, the First Amendment to the Constitution was
ratified, enshrining freedom of speech as the first fundamental
right of all Americans. The First Amendment became an
inspiration not only to Americans but to everyone around the
world and inspired many to throw off the yoke of oppression.
The year 2008 is the 60th anniversary of the Universal
Declaration of Human Rights. After World War II, under Eleanor
Roosevelt's leadership, the United States spearheaded the
ratification of the Universal Declaration, which recognized
freedom of expression as a fundamental right of all people. The
advent of the Internet has allowed billions of people to
exercise this right more fully.
But the Internet is not free for everyone. Contrary to
early predictions that the Internet could not be controlled,
many countries censor the Internet and jail online dissidents.
In Egypt, blogger Kareem Amer is serving a 4-year prison term
for entries on his blog relating to Islam and President Hosni
Mubarak. Now, just last month, 27-year-old Esra Abdel-Fattah
was arrested after forming a group online to protest the high
price of food in Egypt. She was released only in return for her
promise to give up Internet activism.
In Cuba, citizens can be jailed for using the Internet for
counterrevolutionary purposes. Cuban telecommunications
Minister Ramiro Valdes said on February 27, 2007, that the
Internet was a ``tool for global extermination.''
In Burma last fall, the military junta imposed a blackout
on the Internet when images of Buddhist monks protesting the
military's rule started appearing online.
And in China, dozens of bloggers have been jailed,
including Hu Jia, who was recently sentenced to 3\1/2\ years in
prison based in part on online essays he wrote criticizing the
Chinese Government's human rights record. Three and a half
years in prison simply for exercising his freedom of
expression.
Over 30,000 Internet police monitor the Web in China, and
the so-called Great Firewall of China prevents Chinese citizens
from receiving accurate information about China's human rights
record in Tibet and Darfur, among other subjects. The so-called
Internet cops that are pictured here, these little cartoonish
figures, pop up periodically to remind users in China that
their Internet usage is being monitored by the government.
In today's hearing, we will examine the role that American
companies play in Internet censorship. At the outset, let me
acknowledge the obvious: This is not a black- and-white issue,
and it is not an easy issue. U.S. technology companies face
difficult challenges when dealing with repressive governments,
but these companies also have a moral obligation to protect
freedom of expression.
You will see in the opening statements of virtually every
witness here a statement stating that their companies, their
corporate philosophies, are in favor of freedom of expression.
I think that is good and right, but it really creates a
standard for them and for us. And there is no question that
some have fallen short of the mark on more than one occasion.
In fact, perhaps it is time for Congress to consider converting
this moral obligation into a legal obligation.
Human rights groups have accused Cisco of providing network
equipment that forms the backbone of the Great Firewall of
China and is used by other repressive countries to censor
Internet and monitor users. I want to note that last week the
Subcommittee received some troubling information about Cisco's
activities in China, which has been reported in the press, and
I have had a meeting with Cisco, Mr. Chandler and others, to
discuss it. This information has been shared with them and will
be discussed further today.
Software produced by American companies such as Fortinet
and Secure Computing has reportedly been used to censor the
Internet in Burma and Iran, respectively. Google received
significant public criticism when it decided to launch
Google.cn, a China-specific search site that removes results to
conform with China's censorship policies. We will show you some
illustrations later in the hearing. And Microsoft removes the
blogs of Internet activists from their blogging service in
response to requests from repressive governments.
Not all the news is negative. Around the world, Internet
activists are breaking down the walls of censorship. In Cuba,
for example, students use flash drives, digital cameras, and
clandestine Internet connections to post blog entries and
download information. Yoani Sanchez, a Cuban blogger, poses as
a tourist at Internet cafes to make posts on her blog. She was
recently named one of Time Magazine's Most Influential People
of 2008. Activists like Dr. Shiyu Zhou have developed
technology that allows users to break through firewalls and
avoid censorship.
Three of our witnesses--Yahoo!, Google, and Human Rights
Watch--have been working for almost 2 years on developing a
voluntary code of conduct for Internet companies that do
business in repressive countries. I look forward to hearing
about the status of this long-awaited initiative, and I
challenge all here who are interested in the subject no longer
to tolerate the delay in reaching this agreement.
As access to Internet continues to spread and change the
way we inform and express ourselves, our Government and
American companies will be challenged to promote free speech
and not to facilitate repression. With our collective efforts,
perhaps someday the Internet can fulfill its promise of
empowering all people to exercise their right to seek
information and express their opinions freely.
[The prepared statement of Senator Durbin appears as a
submission for the record.]
I want to recognize Senator Coburn for an opening
statement.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Thank you, Senator Durbin. Again, another
compelling hearing for this Subcommittee on Human Rights and
the Law.
Senator Durbin and his staff are to be commended for their
dedication of the issues of such heavy import. This relatively
new Subcommittee has already proven to be quite a force,
introducing bipartisan legislation to address genocide, human
trafficking, and child soldiers. These bills are already well
on their way to bringing justice to victims of the most
egregious human rights abuses.
The Genocide Accountability Act has already been signed
into law. My congratulations. The Child Soldiers Accountability
Act passed the Senate by unanimous consent. And the Trafficking
in Persons Accountability Act awaits consideration by the full
Senate after receiving unanimous approval from the Senate
Judiciary Committee.
This kind of progress is unusual in today's partisan
atmosphere, but Senator Durbin and his staff have ensured
success by reaching across the aisle to work together to tackle
very complex and critical issues for freedom throughout the
world. Under his leadership, we have approached every issue
objectively, studying issues closely and talking to experts at
both hearings and behind the scenes. In doing so, we have
developed reasonable proposals to close gaps in current law
that have inadvertently allowed the United States to serve as a
safe haven for human rights perpetrators.
Today, we address the issue of Internet freedom. Nearly 1.5
billion people now use the Internet, 220 million of which
reside in China. This number has more than doubled since early
2006 when the House of Representatives first held a hearing on
this issue. The growth is explosive and, amazingly, China now
has the largest Internet population in the world. The
introduction and widespread use of this technology in countries
like China is one of the most exciting developments of our day.
Information is power. That information can become freedom, and
the more that Chinese citizens have access to that information,
the more open their society will inevitably be.
Of course, nobody understands the power of the Internet
better than the governments who seek to repress their
societies. I have already mentioned China, but that country is
not the only government with such pernicious censorship.
According to Reporters Without Borders, at least 62 cyber
dissidents are currently imprisoned worldwide, with more than
2,600 websites, blogs, or discussion forums which were closed
and made inaccessible in 2007 alone. The group has identified
countries where Internet freedoms are restricted, which are
China, Cuba, North Korea, Belarus, Burma, Egypt, Ethiopia,
Iran, Saudi Arabia, Syria, Tunisia, Turkmenistan, Uzbekistan,
Vietnam, and Zimbabwe. It named 11 additional countries as
``countries under watch.'' It is my hope that today's hearing
will shed light on how pervasive Internet censorship has become
around the world.
This is not the first time Congress has addressed the issue
of Internet freedom. The House of Representatives, led by
Congressman Chris Smith and the late Congressman Tom Lantos,
held two recent hearings and have thereby created a thorough
record for our benefit. I would like to thank my colleagues for
their dedication to the issue and the detailed groundwork that
they have already laid.
The House hearings explored and established the factual
record surrounding the relatively short history of American
companies that have provided Internet service in countries
where censorship is required by law. Those hearings examined in
detail the steps and missteps of the companies as they began
doing business in unfamiliar territory.
Mr. Chairman, it is my hope today that we will tackle the
challenge of discussing possible solutions for the problems
that face these companies. While understanding that the past is
an important aspect of shaping solutions for the future, it is
my hope that we can avoid relitigating the same issues that
have already been discussed at length. Our panel of witnesses,
which includes the industry experts and human rights advocates,
should be able to explain the progress that has been made since
the last hearing on this issue and answer questions that will
help us better understanding the challenge of preserving
Internet freedom around the world.
While the focus on this hearing is worldwide, it is also my
hope that while the eyes of the world are on China in response
to the massive earthquake and also there is some anticipation
of the Summer Olympics, China's eyes are also on us as we
criticize government censorship of the Internet and call for
more freedom for their citizens. I view this time as an
opportunity to show the people of China what freedom looks like
and also to let the Chinese Government know that its actions
have not gone unnoticed. This is just another opportunity to
lead by example, which is what I hope American Internet
companies doing business in places like China will also choose
to do. Their presence in these places is important, and it is
crucial that they operate on the side of those seeking freedom
rather than oppression.
[The prepared statement of Senator Coburn appears as a
submission for the record.]
I thank the Chairman, and I look forward to the witnesses'
testimony.
Chairman Durbin. Thank you, Senator Coburn. And I want to
just add I appreciate the kind remarks at the outset, and none
of this would have happened had we not been able to do it on a
bipartisan basis. We have a very good positive, working
relationship, and I know that that is going to continue.
And let me also acknowledge, as Senator Coburn has, the
fine work that was done by the late Congressman Tom Lantos, a
friend of many of us, who really led on this issue, and Chris
Smith, who, again, made it a bipartisan effort in the House and
continues to have an abiding interest in progress on this
issue. We will work with our House colleagues on any
legislation that we develop.
The record will reflect that we have sworn in the
witnesses. Our first witness is Nicole Wong, Deputy General
Counsel at Google. Ms. Wong is co-editor of ``Electronic Media
and Privacy Law Handbook.'' She was one of the founders and
first editors-in-chief of the Asian Law Journal. In 2006, Ms.
Wong was named one of the Best Lawyers under 40 by the National
Asian-Pacific American Bar Association. She received her law
degree and master's degree in journalism from the University of
California at Berkeley.
Thank you for coming today. Your entire statement will be
made part of the record, if you would like to summarize it at
this point. After all the witnesses have spoken, we will ask
questions.
STATEMENT OF NICOLE WONG, DEPUTY GENERAL COUNSEL, GOOGLE INC.,
MOUNTAIN VIEW, CALIFORNIA
Ms. Wong. Chairman Durbin, Ranking Member Coburn, members
of the Subcommittee, thank you for inviting me to discuss with
you the issue of Internet freedom. My name is Nicole Wong, and
I am Google's Deputy General Counsel. In that role, I am
responsible for helping to address limits on free speech that
Google faces around the world.
Google's commitment to freedom of expression is at the core
of everything we do. Our company's mission is to organize the
world's information and make it universally accessible and
useful. We provide Internet users with products that let them
quickly and easily share, receive, and organize digital
information. In theory, any person can use our free products
that enable individual expression and information access.
However, freedom of expression on the Internet is not
embraced universally. For example, since 2007, our YouTube
video-sharing site has been blocked in at least 11 countries.
In the last couple of years, we have received reports that our
Blogger and Blog*Spot sites are being blocked in at least seven
countries. And our social networking site, orkut, has been
blocked recently in three countries.
With that in mind, I would like to make two main points in
my testimony this morning. First, Google enables freedom of
expression on a global platform, even as we deal with
government efforts around the world to limit free expression.
Second, governments around the world can and must do more to
reduce Internet censorship.
Let me begin with an example of how our products are used
as tools for free expression in countries that have attempted,
and in some cases succeeded, in restricting speech in other
media.
When the military government of Burma cracked down on
protests by tens of thousands of Buddhist monks in the fall of
2007, it tried to do so outside of the public eye. During the
protests, foreign journalists were kicked out of the country,
national media was shut down, and Internet and cell phone
services were disrupted within Burma in an effort to prevent
information leaking out about the extent of the violence.
Nevertheless, tools like Blogger and YouTube were used by
citizen journalists to share videos of the protests and
information about the extent of the blackout, enabling the rest
of the world to witness the human rights abuses taking place
within that country.
Because our technologies and services enable every person
with an Internet connection to speak to a worldwide audience
and, conversely, to read the stories and see the images posted
beyond their national borders, Google has become a regular
focus of governmental efforts to limit individual expression.
Just to fill out this picture, let me give you two
examples. Over the past year in Turkey, the courts have blocked
the entire YouTube site multiple times, for several days each,
because of videos deemed insulting to Mustafa Kemal Ataturk,
the founding father of modern Turkey, who has now been dead for
70 years, and other videos deemed by the Turkish Government to
be threatening to their state, such as videos promoting an
independent Kurdistan. Under Turkish law, these types of
content are crimes. While we have been engaged with Turkish
officials for many months, it has been difficult to even know
which videos have been the source of complaint in order to
address or challenge those bans.
Another example: In China in October 2007, at a time when
the Dalai Lama was awarded the Congressional Gold Medal and the
Communist Party Congress convened in Beijing, YouTube was
blocked throughout China. While we were not informed of the
exact cause of this suppression of speech and we did not
ourselves remove any videos, access to the site in China was
reinstated only following the conclusion of the Party Congress.
These are just two examples. Since the start of 2007, by
our count Google services have been blocked, in whole or in
part, in over 24 countries. As governments censor content
online, we recognize that Internet companies have a shared
responsibility to protect these important speech platforms and
the people who use them as we deploy our services around the
world.
Every day Google works to advance human rights through a
variety of initiatives. As a start, we work hard to maximize
the information available to users in every country where we
offer our services. To the extent we are required to remove
information from our search engine, for example, we make
efforts to tell our users by placing a notice on the Search
Results page. In China, we believe we are the least filtered,
most transparent search engine available.
Google has also taken a leading role in working with
companies and human rights groups to produce a set of
principles on how companies respond to government policies that
threaten speech and privacy online. We are also working with
human rights bloggers and other groups to help them use our
products to promote free speech online and to develop
technology designed to defeat Internet censorship.
So let me now turn to my second point. We believe it is
vital for the U.S. Government to do more to make Internet
censorship a central element of our bilateral and multilateral
agendas.
Mr. Chairman, the testimony I submitted to the Committee
today includes detailed recommendations building on existing
human rights mechanisms to reinvigorate the international
community's commitment to free expression. There are two in
particular I would call to the Committee's attention.
First, we have become convinced that a single company can
only do so much to fight censorship regimes around the world,
and to meet the challenges in this area. We recommend increased
prominence, authority, and funding be given to the State
Department and the USTR. We continue to urge governments to
recognize that information restrictions on the Internet have a
trade dimension.
The bottom line is that much, much more can be done by the
U.S., and at the international level by countries that respect
free expression online, to ensure that individuals, companies,
and others can use the Internet as the free and open platform
it was designed to be.
I would like to conclude by thanking the Subcommittee for
helping to highlight the importance of the Internet to free
expression. It is only with the attention and involvement of
leaders like yourselves that we can make real progress in the
effort to combat censorship throughout the world.
Thank you.
[The prepared statement of Ms. Wong appears as a submission
for the record.]
Chairman Durbin. Thank you, Ms. Wong.
Our second witness is Michael Samway. He is the Vice
President and Deputy General Counsel at Yahoo! Mr. Samway leads
Yahoo!'s Business and Human Rights Program. He is also on the
board of Yahoo!'s Human Rights Fund. Mr. Samway earned his B.S.
and M.S. from the highly respected Georgetown University School
of Foreign Service, was a Fulbright Scholar in Chile, and
received a JD/LLM in International and Comparative Law from
Duke Law School.
Mr. Samway, thank you for joining us. Please proceed.
STATEMENT OF MICHAEL SAMWAY, VICE PRESIDENT AND GENERAL
COUNSEL, YAHOO! INC., MIAMI, FLORIDA
Mr. Samway. Chairman Durbin, Ranking Member Coburn, members
of the Subcommittee, my name is Michael Samway, and I am Vice
President and Deputy General Counsel at Yahoo! I also lead
Yahoo!'s global human rights efforts. I appreciate the
opportunity to testify before you today.
At Yahoo!, we are deeply committed to human rights and to
being a leader among technology companies in this area. Our
company was founded on the principle that promoting access to
information can fundamentally improve people's lives and
enhance their relationship with the world around them. In the
period since Yahoo!'s creation in 1994, the power and ubiquity
of the Internet has exceeded even our most far-reaching
expectations.
The Internet has dramatically changed the way people obtain
information, communicate with each other, engage in civic
discourse, conduct business, and more. Even in countries that
restrict people's ability to communicate with one another or
access information, people are still finding meaningful ways to
engage online. Over the last week alone, we have seen just how
important new communications technologies can be in places like
China. Internet and cell phone resources have proven invaluable
as government authorities and individuals contend with the
aftermath of a devastating and enormously tragic earthquake in
the Sichuan province.
With the goal of bringing Yahoo!'s technological tools to
people around the world, we embarked on a mission to expand our
business globally in the late 1990's. As one of the first
Internet companies to explore the Chinese market, we launched a
service with the belief that providing the people of China with
innovative tools to communicate, learn, and even publish their
own views was one effective means to improve their way of life.
We were joined in this strategy of engagement by many in
Congress and in both Democratic and Republican administrations
alike. With the sporadic pace of political progress in China as
well as the need for companies there to adhere to local laws,
we have also learned that expanding into emerging markets
presents complex challenges that sometimes test even the
important benefits of engagement itself.
While Yahoo! has not owned or had day-to-day control over
Yahoo! China since 2005, we continue to be concerned about the
challenges we faced in that market and will certainly face in
other markets in the years to come.
Skeptics have questioned whether American Internet
companies should engage in these countries at all. Yahoo!
shares these concerns, and we have confronted these same
questions about engagement in challenging markets. Yet we
continue to believe in the Internet's transformative power and,
on balance, its constructive role in transmitting information
to, from, and within these countries. And we are committed to
doing our part through supporting individual and collective
action.
Governments, because of their enormous leverage, have a
vital role to play. To that end, we have asked the U.S.
Government to use its leverage--through trade relationships,
bilateral and multilateral forums, and other diplomatic means--
to create a global environment where Internet freedom is a
priority and where people are no longer imprisoned for
expressing their views online.
Our CEO, Jerry Yang, has met personally with State
Department officials and earlier this year wrote a letter to
Secretary Rice urging the State Department to redouble its
efforts to secure the release of imprisoned Chinese dissidents.
Secretary Rice raised this issue with senior Chinese officials,
and since then we have seen Members of Congress echo this call
for U.S. diplomatic leadership. We hope these efforts will both
intensify and bear fruit.
We are also taking steps on our own. Jerry Yang announced
the Yahoo! Human Rights Fund in November 2007, as part of a
broader effort to address human rights challenges in China and
around the world. We have partnered with noted dissident and
human rights activist Harry Wu, who is here with us today, and
the Laogai Research Foundation to establish this fund.
The Yahoo! Human Rights Fund will provide humanitarian and
legal support to political dissidents who have been imprisoned
for expressing their views online, as well as assistance for
their families. A portion of the fund will also be used to
support the Laogai Research Foundation's educational work to
advance human rights.
In order to fuse our global business with responsible
decisionmaking on human rights issues, we have also established
the Yahoo! Business and Human Rights Program. A key pillar of
this program is a formal assessment of the potential human
rights impact of business plans we develop for new markets.
This assessment examines the human rights landscape in a
country, evaluates potential challenges to free expression and
privacy, and offers strategic approaches to protect the rights
of our users through legal and operational structures, among
other methods. Yahoo! then tailors its entry into the new
market to minimize risks to human rights.
Because it is so difficult for just one company to create
systemic change, Yahoo! has also been a committed participant
in a broad-based global human rights dialog. We are working
with industry partners, academics, human rights groups, and
socially responsible investors to develop a code of conduct
that will guide technology companies operating in challenging
markets. At Yahoo!, we are eager to make this global code a
reality in the near future.
As an industry pioneer, Yahoo! is proud to have explored
new ideas and markets, helping drive the transformative power
of the Internet. Just like others who have gone first, Yahoo!
has learned tough lessons about the challenges of doing
business in nations with governments unlike our own. Yahoo! is
working intensively and at the most senior levels in the
company to set the highest standards for decisionmaking around
human rights. The initiatives we pursue at Yahoo! are intended
to protect the rights of our users, improve their lives, and
make the extraordinary tools of the Internet safely and openly
available to people around the world.
I appreciate the opportunity to tell you about these
efforts to date and about our plans to continue to pursue a
global leadership role in the field of human rights. I look
forward to answering your questions.
Thank you.
[The prepared statement of Mr. Samway appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Samway.
Our next witness is Arvind Ganesan, Director of the
Business and Human Rights Program at Human Rights Watch. He has
published three books and numerous articles on business and
human rights. In 2006, he was the editor of the Human Rights
Watch report ``Race to the Bottom: Corporate Complicity in
Chinese Internet Censorship.''
Thank you for being here. Please proceed.
STATEMENT OF ARVIND GANESAN, DIRECTOR, BUSINESS AND HUMAN
RIGHTS PROGRAM, HUMAN RIGHTS WATCH, WASHINGTON, D.C.
Mr. Ganesan. Mr. Chairman, thank you for the opportunity to
speak today, and thank you for your leadership on this issue. I
would also like to thank members of the Subcommittee and, in
particular, Senator Coburn. As somebody who is from Oklahoma, I
have to say that my parents are thrilled about the prospect of
me testifying in front of one of their Senators today.
Human Rights Watch believes that the Internet is a
transformative force that can help open closed societies and
provide the near instantaneous flow of information to inform
the public, mobilize for change, and ultimately hold
institutions accountable. However, today there is a real danger
of a Virtual Curtain dividing the Internet, much as the Iron
Curtain did during the cold war.
I would like to briefly address three issues in relation to
global Internet freedom: the actions by some repressive
governments to restrict the flow of information and to punish
individuals using the Internet; the ongoing efforts by industry
to develop self-regulation to ensure that leading companies do
not become complicit in abuses; and, finally, the prospects for
government-led change.
In 2006, the human rights problems related to the Internet
in China came to light. Yahoo! had provided user information to
Chinese authorities that led to the imprisonment of online
activists, and U.S. companies, including Google, Microsoft, and
Yahoo!, censor their search engines in China. This is in
anticipation of what Chinese censors expect and in addition to
what the Chinese Government's firewall prohibits.
But China is not the only government that actively tries to
suppress its critics in the virtual world. Others have
intimidated or silenced activists on the Internet by
controlling both providers and users.
The Russian Government is trying to replicate the Chinese
firewall. It is promulgating a decree to spy on users, and it
is also prosecuting an individual for posting a blog with an
offensive suggestion that was ultimately critical of police
corruption. And in January 2007, leading companies, including
Yahoo!, Microsoft, and Google, along with human rights
organizations, socially responsible investors, and academics,
started a process to develop a voluntary code of conduct. The
code was to contain a compliance mechanism to try to curtail
censorship and protect user information.
Initially, we had hoped that the process could help stop
companies from censoring and ensure that they protect cyber
dissidents. But almost 18 months later, there is no system in
place. We are still negotiating. In the meantime, Internet
users are no safer and censorship continues.
Not every company is in the same place, nor is it fair to
say companies do not care about human rights. And we have heard
several examples of those approaches today. Those are laudable
efforts, but they do not address steps companies should take to
ensure that their operations do not contribute to abuses.
Without disclosing the details of discussions within the
initiative, I can say that a fundamental problem is that some
companies continue to be very resistant to the idea of
independent monitoring. In particular, they are resistant to a
system that would allow for an independent third party to
assess: one, whether or not companies have put policies into
place to reduce censorship and protect users; two, that those
polices are diligently implemented; and, three, that their
implementation is actually effective in curtailing these human
rights problems. Unfortunately, the preferred option for some
companies is a system in which they will decide who the
monitors are, what they will see, and will implement those
standards at a pace convenient to them.
In other words, companies will express support for human
rights but also ask the public to basically trust them to do
the right thing.
Sadly, it is difficult to point to any company within the
voluntary initiative that has robust human rights policies and
procedures in place more than 2 years after the problems in
China were disclosed. Google, for example, has actively
resisted such efforts. On May 8th, Google's board voted down
two shareholder proposals. One called on the company to
implement policies and procedures to protect human rights, and
the other called for a board committee on human rights. Sergey
Brin, the company's co-founder, abstained from the vote because
he felt that these proposals were not the appropriate way to
approach the issue. Instead, he suggested a company discussion
might be useful.
Google's resistant stance and the lack of consensus on
voluntary standards raise a fundamental question: What is
holding up these companies from implementing an effective means
to protect user privacy and to curtail censorship?
My final point is on government. Legislation is an
essential complement to a voluntary effort, and there is a
promising bill in the House. A voluntary initiative will not
apply to companies which do not join it, and it is difficult to
see how it will be implemented under repressive governments who
are very good at dividing and pressuring companies. Legislation
would make it more difficult for repressive governments to
force companies into becoming complicit in human rights abuses,
and it might also encourage a more assertive U.S. foreign
policy on these issues.
A useful model for this approach is the Foreign Corrupt
Practices Act. That act mandates that companies will face
penalties if they do not put adequate systems in place to
prevent bribery, and it contains penalties if they actually
engage in corruption. A similar approach could work quite well
in regards to the Internet and would easily complement a
voluntary initiative since it would require a company to put
systems into place to prevent abuses and would hold them
accountable if abuses occurred. Unfortunately, the companies
are apparently resistant to legislation, much like they are
resistant to effective voluntary measures.
Last weekend, news reports began to circulate about an
Indian man who reportedly is facing charges for making critical
and possibly vulgar comments about Sonia Gandhi online. He was
reportedly identified with the help of Google because he was
using their social networking site in India. We should not have
to wait for another arrest to see progress from companies.
Thank you again, and I look forward to your questions.
[The prepared statement of Mr. Ganesan appears as a
submission for the record.]
Chairman Durbin. Thank you, Mr. Ganesan.
Our next witness is Mark Chandler, Senior Vice President,
General Counsel, and Secretary of Cisco Systems. He has been
with Cisco since 1996. He was previously General Counsel at
StrataCom and Vice President and General Counsel of Maxtor
Corporation. He is a member of several boards, including the
Board of Visitors at Stanford Law, and the Advisory Council of
the Woodrow Wilson International Center for Scholars in
Washington. Mr. Chandler received his bachelor's degree from
Harvard and his J.D. from Stanford Law School.
Mr. Chandler, thank you for joining us and please proceed.
STATEMENT OF MARK CHANDLER, SENIOR VICE PRESIDENT, GENERAL
COUNSEL, AND SECRETARY, CISCO SYSTEMS, INC., SAN JOSE,
CALIFORNIA
Mr. Chandler. Mr. Chairman, Ranking Member Coburn, my name
is Mark Chandler. I am Senior Vice President and the General
Counsel of Cisco. Thank you for the opportunity to appear
before you today.
My company was founded 24 years ago by two Stanford
graduate students. Today we have 65,000 employees around the
world, more than 40,000 in the United States, including over 80
percent of our engineering. We are proud of the fact that we
have added over 8,000 jobs in the United States in the last 2
years in difficult economic times.
I testified 2 years ago before Congressman Smith's
Subcommittee on the topic of global Internet freedom. As a
company that supports free expression and open communication,
we recognize the importance of driving policies to enable
people the world over to benefit from the freedom and
empowerment that the Internet can offer. I want to reiterate
five key points from that testimony 2 years ago.
First, Cisco sells the same products globally, built to
global standards, thereby enhancing the free flow of
information.
Second, Cisco's routers and switches include basic features
that are essential to fundamental operation of the Internet by
blocking hackers from interrupting services. protecting
networks from viruses.
Third, those same features without which the Internet could
not function effectively can, unfortunately, be used by network
administrators for political and other purposes.
Fourth, in this regard, Cisco does not customize or develop
specialized or unique filtering capabilities in order to enable
different regimes to block access to information.
And, fifth, Cisco is not a service or content provider, nor
are we a network manager who can determine how those features
are used. These points were through 2 years ago, and they
remain true today.
I do want to directly address the Cisco internal
presentation that was provided to the Committee last week,
which was prepared by a Chinese engineer inside Cisco in 2002,
designed to inform Cisco employees in China about the history
and operation of China's public safety organizations. I have
the utmost respect for those like Professor Zhou who commit
their lives and resources to the cause of free expression. And
I am also grateful to him and to Ambassador Palmer and Michael
Horowitz of the Hudson Institute for providing the presentation
to us so we could translate it and review it in advance of
today's hearing.
We were disappointed to find that the Cisco internal
presentation included a Chinese Government official statement
regarding combat and hostile elements, including religious
organizations. We regret the engineer included that quote in
the presentation, even by way of explaining the Chinese
Government's goals, and we disavow the implication that this
reflects in any way Cisco's views or objectives.
The nature of that presentation has not been accurately
described, however. The document consisted of 90 PowerPoint
slides reviewing various Government projects, including no
fewer than 12 pages on the Beijing traffic management bureau
and firefighting brigades. The presentation described products
of various other companies, including China's Ra Wei, and U.S.
companies, such as Lucent, Harris, and Motorola, in providing
equipment to the Ministry of Public Security. It also described
in detail the role that Cisco's standard networking products
could play in facilitating communication. In no case--and I
repeat, no case--did the document propose any Cisco products be
provided to facilitate political goals of the government, and
no reference was made to an application of our products to
goals of censorship or monitoring.
We do not know how the Chinese Government implemented
filtering or censorship beyond the basic intrusion protection
and site filtering that all Internet routing products contain,
such as used by libraries to block pornography.
For instance, Cisco does not provide the interception
capabilities that comply with the CALEA statute in the U.S. We
believe the mediation devices the Chinese Government uses for
that purpose are altogether unique and developed and sold by
Chinese companies.
Mr. Chairman, you referred in your opening statement to
other companies which do provide specialized security products
and which Cisco has not. Our technology has helped connect the
world in an unprecedented fashion. Perhaps the most vivid
example of this in China is the response to last week's
earthquake. Within minutes, pictures and videos from the region
were online, and contrast that with the situation in Tangshan
32 years ago when the world received no official confirmation
for months that a quarter of a million people had been killed
in a huge earthquake. Today, more than 220 million Internet
users in China are testimony to the ability of the average
citizen to find information which has been dramatically
expanded.
But the phenomenon of Internet censorship is, nonetheless,
a global issue. Many governments around the world do not share
our principles even as the Internet facilitates unprecedented
communication. Around the world, governments do try to block
citizen access to information. But Cisco complies with all U.S.
regulations informed by human rights concerns which control
sale of our products.
The policy responses that the Senate must consider with
regard to the Internet and censorship are complex. Among the
questions we have historically raised are: Has the Internet
helped spread a dramatic access to information in regions where
content is, nonetheless, subject to limitations? And if
countries that engage in censorship are to be denied U.S.
Internet technology, will those countries establish a closed
Internet of their own, thereby enforcing the Virtual Curtain
that Mr. Ganesan referred to?
In conclusion, Mr. Chairman, I have read and thought a lot
about these important and difficult issues, and I agree with
experts, including many human rights activists, who are of the
view that engagement with China and other nations is more
likely to lead to positive change than isolation. I also
believe, having worked in the information technology sector for
decades, that the Internet is one of the greatest contributors
to positive change and that we should do whatever we can to
make as much information available to as many people as
possible. This can be accomplished through an Internet that is
maintained as one global system built to global standards. I
believe the U.S. Government for more than 30 years has pursued
a consistent and sensible policy, and the fact that the
Internet is robust in China is a powerful testament to that
fact.
Thank you again for inviting us to appear today before the
Subcommittee.
[The prepared statement of Mr. Chandler appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Chandler.
Our final witness is Dr. Shiyu Zhou. Dr. Zhou is the Deputy
Director of the Global Internet Freedom Consortium, an
organization that creates software that allows citizens in
repressive countries to break through firewalls and freely
access the Internet. Dr. Zhou is the Vice President of New Tang
Dynasty Television and an adjunct professor at Rutgers
University's Computer Science Department. He was previously on
the faculty at the University of Pennsylvania.
Dr. Zhou, thank you for being here today, and please
proceed.
STATEMENT OF SHIYU ZHOU, DEPUTY DIRECTOR, GLOBAL INTERNET
FREEDOM CONSORTIUM, BETHESDA, MARYLAND
Mr. Zhou. Mr. Chairman, Ranking Member Coburn, I am proud
to stand before you today on behalf of the Global Internet
Freedom Consortium, a small team of dedicated volunteers
connected through their common practice of Falun Gong, who have
come together to work for the cause of Internet freedom. We
constantly battle tens of thousands of Internet monitors and
censors around the world so that millions of citizens inside
repressive societies may safely communicate online and access
websites related to human rights, freedom, and democracy. These
men and women maintain operations out of their own pockets, but
provide their products and support services to the citizens of
closed societies entirely free of charge.
The consortium has run the world's largest anti-censorship
operation since 2000. Our services currently accommodate an
estimated 95 percent of the total anti-censorship traffic in
closed societies around the world and are used daily by
millions of users. As of January 2008, the top five censoring
countries with the most daily hits to our anti-censorship
systems are: China, 194.4 million hits per day; Iran, 74.8
million hits per day; Saudi Arabia, 8.4 million hits per day;
United Arab Emirates, 8 million hits per day; Syria, 2.8
million hits per day. And there are also users from many more
closed societies, such as Cuba, Egypt, Sudan, and Vietnam. It
has been transforming the closed society in a peaceful but
powerful way that must not be underestimated.
Our tools have also been of benefit to U.S.-based
organizations such as Human Rights in China, Voice of America,
and Radio Free Asia, and even companies like Google and Yahoo!,
who self-censor, since we bring the uncensored version of their
services into closed societies. We have witnessed firsthand the
effectiveness of anti-censorship technologies in improving
information freedom for people in closed societies. During the
democratic movements in Burma in late August 2007, our anti-
censorship portals experienced a threefold increase in average
daily hits from IP addresses originating in side Burma. After
the protests broke out in Tibet on March the 10th of this year,
there was a fourfold increase in the number of daily hits to
our portals from Tibet, with Tibetans desperately trying to
send out information about the crackdown by Chinese
authorities. Our anti-censorship tools are now one of the
Tibetans' few remaining links to the outside world.
At the same time that we are battling the censors for the
freedom of the people in closed societies, we are,
unfortunately, finding strong indication that companies such as
Cisco located in free societies may be involved in helping the
Chinese security agencies monitor and censor the Internet, and
persecute and prosecute Chinese citizens.
In a 2002 Cisco China PowerPoint presentation entitled ``An
Overview of [China's] Public Security Industry,'' now in our
possession, a Cisco China official in the Government Business
Department listed the Golden Shield Project, the host project
of China's Great Firewall, as one of Cisco's major target
customers. In this document, which apparently lays out the
marketing strategy for Cisco China to sell products to the
Chinese Security Police, one of the main objectives of the
Golden Shield was to ``combat the `Falun Gong' evil cult,''
parroting the rhetoric of the Chinese authorities used to
persecute Falun Gong.
In the presentation page headed ``Cisco Opportunities [in
the Golden Shield Project],'' Cisco offers much more than just
routers. It offers planning, construction, technical training,
and operations maintenance for the Golden Shield. Our research
shows that the infrastructure of China's Great Firewall
coincides with the layout in Cisco China's PowerPoint
presentation. Cisco can no longer assure Congress that Cisco
China has not been and is not now an accomplice and partner in
China's Internet repression and, whether directly or
indirectly, its persecution of Falun Gong practitioners and
other peaceful citizens in China.
Anti-censorship technology can allow the people in closed
societies to be less subject to manipulation by an unscrupulous
leadership. Winning people over to a more open and free system
via the Internet could very well be a way to avoid future
conflicts that can cost lives.
To our belief, reaching a critical mass of 10 percent of
the 280 million Internet users in all closed societies will
result in the avalanche effect that could lead to the fall of
the censorship walls in closed societies.
The battle of Internet freedom is now boiling down to the
battle of resources. The consortium has the know-how,
experience, and capabilities needed to reach the critical mass
in this coming year with just modest funding. We hope and trust
the Senate and the Congress will grasp with what we believe to
be a historic opportunity. Only when the U.S. shows more
determination to keep the Internet open than the closed
societies will to seal it off can there be the hope of
information freedom and democracy for the citizens in all
closed societies and a more peaceful tomorrow for all of
mankind.
Thank you.
[The prepared statement of Mr. Zhou appears as a submission
for the record.]
Chairman Durbin. Dr. Zhou, thank you very much.
Senator Coburn has another hearing that he has to attend,
and I am going to allow him to ask questions first so that he
can put some questions on the record, and both of us will
reserve the right, as will the other members of the Committee,
to submit written questions after this hearing.
Senator Coburn?
Senator Coburn. Thank you, Mr. Chairman, for your
graciousness.
Mr. Chandler, how do you respond to what Mr. Zhou just
said? He has outlined not just the sales of equipment, but the
management and advisement and counseling and training on how to
affect censorship by the Chinese.
Mr. Chandler. Thank you. Once again I would reiterate the
respect I have for the efforts that he undertakes to allow
access to information that censors would otherwise preclude
access to.
I was appalled when I saw the line in the slides and very
disappointed to see it even as a quote from a government
official. There were several pages in the presentation which
said here are the government's goals with this project, the
government's goals with the next project. And the Golden Shield
section has quite a few pages in the presentation devoted to
different aspects of what they were trying to accomplish,
including illegal drug interdiction, traffic management, and so
forth.
The description in there had to do with what generally
involves network planning and layout, which is something you do
when you sell routing and switching equipment. We do provide
service for our equipment so that it can be fixed if it is
broken, and that is the type of service that we provide,
technical service so that people understand how to use the
equipment.
The only equipment that has been sold as a result of that
is routing and switching equipment for essentially office
automation and internal purposes within the Public Security
Bureau. It has been a relatively small amount, I think, in the
year after that presentation was made, and, again, we are
talking about something that was 6 years ago. I think there was
approximately $10 million of sales, and, again, office
automation equipment more than anything else--in fact,
exclusively.
That is the nature of the implementation. There was nothing
there that had to do with censorship, none of this kind of
strong security products that the Chairman referred to in his
opening remarks that would facilitate that type of
communication interception. And I would point out just by way
of example that when an issue arose a couple of years ago
regarding someone who was arrested as a result of online
posting, that was not done by the government because they were
able to receive information from Cisco products. They had to go
to the service provider in question and try to identify the
individual by name. We are providing generic routing and
switching equipment in these instances that we do not think
facilitates the types of activities that I know are very
troublesome to Dr. Zhou and to us as well.
Senator Coburn. Dr. Zhou, the references to the 2002
presentation, do you have information outside of that 2002
presentation that would lead you to conclude that the facts are
otherwise from what Mr. Chandler stated?
Mr. Zhou. Yes, we have. Actually, we have just submitted
another document to the Subcommittee this morning. It is
apparently a sales pitch presentation by the same Cisco-China
person who made the first 2002 document, to the public security
police in China, showing how to use Cisco equipment to
construct the Golden Shield Project in different cities and
provinces, including Beijing.
Senator Coburn. To Mr. Chandler's point, though, even
though they built it, they still have an ISP that they have to
go through. Is that correct?
Mr. Zhou. I am sorry. The--
Senator Coburn. Well, you can build it, but there is still
an Internet service provider that people are using. So will
they not and still have to use the complicit help of an ISP
with which to identify someone?
Mr. Zhou. Well, Cisco's routers have--it is a
supercomputer. It has various functions. And the censorship,
which is the thing that we are concerned most about, happens at
the national gateway level, and so they can monitor, they can
do content filtering, and they can do a hijacking of the DNS,
and also they can do IP blocking so people cannot see websites.
And in regard to the monitoring system you mentioned, Cisco
also has other equipment, including voice and image recognition
and other things, that could be used. And if you want to track
down the users of certain going to certain IP addresses, well,
so there are many ways to do that, and so there are other
companies who are doing this, and Cisco is one of the major
companies.
Senator Coburn. All right. Our first two witnesses talked
about using trade and enhancing our USTR in terms of our
approach to censorship. Why not just, Dr. Zhou--rather than
give it to a bureaucrat and create an anti-censorship center
where we, in fact, make it so hard for them to censor that they
give up, that he wins, that we get over the critical mass
rather than do it through the bureaucratic maze? It obviously
has not worked in the past on several other issues in China in
terms of both the State Department and the USTR. Why would you
make--why would you think that that would work through the
Trade Representative or the State Department that China is
going to change its policy?
Ms. Wong. I will take that, because I think we have a
number of recommendations that are in my testimony. And let me
explain.
I think the USTR is an important step. I think it is
important to recognize that freedom of information on the
Internet is a trade issue and that we can use that with other
countries as we negotiate those agreements. But having said
that, Senator, you are absolutely right. It is not a silver
bullet. The Government has many tools in its toolbox, and we
would actually encourage them to use a variety of them.
We think the USTR one is a good one. We think greater
prominence and authority given to the State Department would
also be very, very helpful in our experience in talking to
countries. Particularly there is a second generation of
countries that are coming online, and they do not have the same
values that we do on freedom of expression or governance, and
to have State Department officials who could engage them on
that level would be enormously effective.
Also, as a company, we support the development of tools
that are intended to get around censorship of the Internet. We
do that in a couple of ways, both directly supporting
developers in that area, and also providing a code base for
building on top of. There are a number of things, I think, that
can be done. The USTR is one of them.
Senator Coburn. Mr. Samway, do you want to comment on that?
Mr. Samway. Senator, that is a very good question. We are a
technology company, and certainly technology is part of the
solution, and we are going to explore Dr. Zhou's organization
and the technology offered. At the same time, it is also a
human problem. It is a company challenge, and we are taking on
the challenge at Yahoo! to build internal capacity to make
responsible decisions on human rights.
There is also an important role for Government to play, and
we agree not only with using trade, but all the other, as Ms.
Wong said, tools in the U.S. Government's toolbox to emphasize
that Internet freedom is a global priority.
Senator Coburn. It may be my lack of knowledge, but I think
that is already our policy. Is it not already our policy at the
State Department?
Ms. Wong. I believe there is a freedom-of-expression
component to the State Department's mandate. I think in our
experience they have been very helpful with us in some
instances with some governments. My sense is they could use
greater resourcing, greater prioritization.
Senator Coburn. OK. Thank you.
Mr. Ganesan, what is your thought about what Dr. Zhou does
and the likelihood that whether we have a Government-mandated
committee look at this or a voluntary organization from
industry look at it and have a tool up here that is above the
box versus what he is doing below the box, which do you think
ultimately is going to be more effective?
Mr. Ganesan. Thank you. I actually think all of them will.
I think that you do need to foster new technologies to get
around firewalls and to get around censorship and to help
people protect their privacy.
At the same time, I think that Government can be more
aggressive. The State Department, I believe, has a Global
Internet Task Force, which it has now launched twice, I think,
and so there is a lack of clarity as to what its ultimate
purpose and its overall strategy is, and I think that that
could be addressed. And I think trade policy could be useful,
but it is important to bear in mind that these are long-term
fixes and diplomatic fixes. The immediate fix may be fostering
new technologies and, most importantly, getting leadership
companies to do the right things. And the balance that we want
to strike between a voluntary and mandatory initiative is that
some things can be done voluntarily, providing the public has
the assurance that what people say they are doing is actually
done.
But then there are going to be cases, like China or others,
where the Government is just too good at picking off individual
companies or pressuring them to do the wrong thing, in which
case rules need to be changed so that they have a backstop
which helps them move beyond that into something else.
Senator Coburn. Somewhat they are using their purchasing
power to be able to influence what is happened.
One last question, and I will submit the rest of mine for
the record. Google participates in China, but you do not offer
Gmail. Why not? Turn your microphone on, please.
Ms. Wong. When we launched our services in 2006, we thought
very carefully about how we could do that in a way that we
would be maximizing the availability of information in China
while also protecting user services. And we took a lot of
lessons from the examples of companies that went before us.
One of the decisions we made was that we did not want to
host Gmail or Blogger or services that would include
confidential, sensitive information that we might be required
to provide to the Chinese Government. So the services that we
currently offer in China include our search services, a map
service, a local business service, and some others.
Senator Coburn. But there other countries that have
repressive regimes and Internet censorship where you offer
Gmail. How is it you can do that in those countries and not in
China?
Ms. Wong. Because of the nature of how we have seen the
government use information, we were particularly concerned
about China. We do offer Gmail in other countries. Before we
launch in countries, we do try to--we do an assessment of those
countries in terms of both our risk of being compelled to
produce information in those countries as well as what the
government structures in those countries look like.
Senator Coburn. All right. Thank you.
Thank you very much, Mr. Chairman.
Chairman Durbin. Thank you, Senator Coburn. I understand
you have to leave and you will submit some questions for the
record. We are joined by Senator Whitehouse, and I would like
to ask first some questions related to this Cisco PowerPoint,
Mr. Chandler.
First, do you know the person who was responsible for this
PowerPoint presentation, which made the negative reference to
Falun Gong and talked about using Cisco's resources to train
the Chinese Government in censorship and repression?
Mr. Chandler. Well, first of all, I do not know him. I have
never met him. I have never spoken with him. He is not a
manager. He has nobody who reports to him. He is a first-level
employee. I think he is four or five levels down in the
Chinese--
Chairman Durbin. Does he still work for Cisco?
Mr. Chandler. Yes, he does. The document did not propose on
behalf of Cisco that Cisco combat in any way or adopt any of
the government's goals. It simply listed what the government's
goals were, and there were several pages within the document
that do that. You will note on the chart that Mr. Zogby is
holding up right now that the first two bullets from this
government statement were crack down on Internet crimes and
ensure security in services of public Internet, which are
fairly straightforward goals for network administrators.
There was not a proposal whatsoever in the Cisco document
that Cisco be involved in censorship or monitoring. And,
interestingly, just to draw on something that Professor Zhou
said, the censorship and monitoring that would occur would not
be within that ministry, apparently, but as Dr. Zhou said, at
the gateways where information comes in and out. And so that
project that was referred to there did not seem to have any
censorship or monitoring aspect to it with respect to anything
Cisco could provide.
Chairman Durbin. Does this person still work for Cisco?
Mr. Chandler. Yes, he does. I would note, by the way, that
we have no video recognition, and the only voice recognition we
have is so people can dial by picking up a phone and asking for
their voice mail. So that is just not our product either.
Chairman Durbin. Now that this document has been made
public, what efforts will your company make to clarify your
position relative to Falun Gong and this type of conduct?
Mr. Chandler. Well, first of all, the document is a 6-year-
old description of the Chinese public safety organizations and
how they were laying out their network plans based on what
government officials were saying about them.
With respect to our position, as I said in my testimony,
the views of the government officials cited in it were not
Cisco's views then; they are not Cisco's views now. That was an
internal document describing the government's goals that was
used internally among Cisco employees, and but for the fact
that it was put on the record here, would never have been
identified with Cisco in any case, whatever our view.
Chairman Durbin. What internal systems or written policies
does Cisco have so that your employees in China, or any other
place, do not assist a government's efforts at censorship and
repression?
Mr. Chandler. Well, it goes to the nature of our products.
The principal thing that we do that is beneficial in that
respect is that our products are built to global standards, and
we sell the same products globally. So we do not customize them
for those types of purposes in any way. And that is the
fundamental principle that we have that applies globally. We do
have 65,000 employees the world over; documents are generated
every day describing the capabilities of our products. And it
was inappropriate for him to include a political goal that--
Chairman Durbin. As a matter of record, I accept that, but
my question was specific.
Mr. Chandler. Yes.
Chairman Durbin. What internal systems or written policies
do you have to make it clear to your employees not to engage in
conduct that supports the Chinese Government's censorship and
repression?
Mr. Chandler. We have a written, extensive code of conduct
that refers to the way our products are to be used, what the
aspirations of the company are, and we also have a corporate
social responsibility organization that clearly sets forth in
our annual review of that what the company's support is for
human rights globally, including the power of the Internet to
do that. And employees who would customize our products in such
a way as to undermine human rights would not be consistent with
the code of conduct that we have.
Chairman Durbin. Does your company inform government
clients, in writing or otherwise, that they will not assist in
efforts toward censorship and repression?
Mr. Chandler. Given that our products do not do that, I am
not sure the nexus for providing that kind of statement to a
government in that the products that we provide as global
standardized products for routing and switching of information
simply are not applicable to that purpose.
Chairman Durbin. Dr. Zhou, would you like to react to Mr.
Chandler's comments?
Mr. Zhou. Yes, Mr. Chairman. We should consider a normal
business procedure that Cisco and other companies use to do
business with China, in which we have pre-sales services and
also post-sales services.
In pre-sales services, you get the objectives of your
client and make a proposal to them. Like in this PowerPoint, it
tells Cisco people about the objectives of the Chinese police
force and how to market Cisco products to the Chinese,
including how to ``combat Falun Gong.''
After the sales, you have post-sales services by
implementing the solution to achieve the objectives. That
includes the (lower-level) design, customization, testing,
implementation, plus training, maintenance, etc.
Cisco routers are supercomputers. They can be used as a
toy, but they can also be made into a A-bomb. It completely
depends on the objectives of the client.
Cisco can design it purposefully to accommodate the needs
of the client, and that is what the other document submitted to
the Subcommittee is doing--Cisco made it into an A-bomb to
accommodate whatever the Golden Shield Project needs.
Chairman Durbin. I might say for the record that the other
document you have referred to was given to the Committee about
5 minutes before the hearing in Chinese.
Mr. Zhou. Right.
Chairman Durbin. And so--
Mr. Zhou. The English. The English.
Chairman Durbin. In English as well?
Some of it is translated and some of it is not. We are
still working on the translation, so I thank you for that.
Mr. Chandler, I want to give you the last word on this, and
then I want to ask some other questions, if I might. I would
like to add to Dr. Zhou's comments.
Mr. Chandler. Sure. I think that there are several things
that I think we can do and that are relevant and positive in
this respect. Cisco does support the goals of the Global Online
Freedom Act to promote freedom of expression on the Internet
and also to protect U.S. businesses from coercion by repressive
authoritarian foreign governments. In particular, we support
section 104 that would establish an Office of Global Internet
Freedom in the Department of State. We support restrictions on
the ability of companies to locate within an Internet-
restricting country electronic communications that include
personally identifiable information, which we generally do not
do in any case. And, finally, we also support title III, which
would require the Secretary of Commerce, in conjunction with
the State Department, to conduct a feasibility study for the
development of export license requirements regarding export of
any items to an end user in an Internet-restricting country
that would facilitate substantial restrictions on Internet
freedom.
We comply fully with the U.S. laws that exist today,
including the Foreign Relations Authorization Act that was
enacted in 1990 and puts specific limitations on supply of
certain crime control equipment to Chinese Government agencies.
There is a lot that can be done.
Chairman Durbin. I am going to submit a question for the
record relative to Commerce Department regulations on equipment
that I hope you will have a chance to respond to through your
company. And I would like to ask the others a few questions. I
do not know if you have a few minutes, Senator Whitehouse. Do
you?
Senator Whitehouse. I am supposed to be on the floor
shortly.
Chairman Durbin. Oh, well, go ahead. Senator Whitehouse,
why don't you go ahead and ask questions, and I will return
after you.
Senator Whitehouse. I would appreciate it, Mr. Chairman. I
will be quite brief. First of all, I want to thank you for
holding this hearing, and I think particularly the emphasis on
representing basic human freedoms and rights in our trade
policies that Ms. Wong brought up and that has been discussed
in this hearing is particularly important. I have been pressing
in my brief time in the Senate for our trade policies to
reflect basic things, like honoring property rights in
countries that we have trade relationships with, honoring free
press, and I think the discussion about honoring Internet
openness and neutrality has been helpful to me in informing
those views and other areas where I think our trade policies
could effectively reflect our values better than they do.
With respect to the American companies that are here before
us today, let me ask you this: Are you selling products or
services in China that are different than your standard
products that have been customized or tailored--I think Dr.
Zhou used the word ``customized"--in any way to facilitate the
repressive efforts of the Chinese regime? And I ask that
question because it is a different question for me if, you
know, we are selling a Ford car that is a standard Ford car and
the Chinese police are using it for repressive purposes. That
really does not necessarily trail back to the responsibility or
culpability of the Ford Motor Company. On the other hand, if
the American equipment is being tailored to support the
repressive efforts in any way, that seems to me to raise a
different question.
So I would ask each of you, I guess Mr. Chandler, Mr.
Samway, and Ms. Wong, if you could answer that for your
respective companies.
Mr. Chandler. No, we do not.
Mr. Samway. Thank you, Senator Whitehouse. We do not sell
equipment. The services that we offer on yahoo.com are
available to Internet users all over the world in the same
form--
Senator Whitehouse. The same whether you are signing on
France or India or U.S. or China?
Mr. Samway. That is correct, assuming you have access and
it is not blocked. The local subsidiaries of any company will
be required to comply with local laws, and that would be the
case with the companies that we no longer control but that is
run by Ali Baba and called Yahoo! China. And we, like you,
believe deeply in free expression and certainly in privacy.
Those are our founding principles.
Senator Whitehouse. Ms. Wong?
Ms. Wong. We offer a global service, which is our
google.com service, the service you can access here in the
United States. That is available throughout the world,
including in China, and what we found prior to 2006, when we
first launched our local service on google.cn in China, is that
google.com would be frequently blocked, completely unaccessible
to the people of China. And so after much discussion by our
senior executives about how to still be able to provide
meaningful information in China, we decided to offer a
localized version on our google.cn domain, which is, in fact,
compliant with Chinese law pursuant to our license
requirements.
Senator Whitehouse. Do you do that in other countries as
well?
Ms. Wong. We do, actually. So our strategy in China and
globally is to make as much information available as possible,
and if information has to be removed, to be transparent with
our users about that. So, for example, in Germany, which
prohibits Nazi propaganda material, we will remove at the
request of the government that type of material from our dot-
de, our German local domain. That is the same, for example, in
Canada, which has a law that protects certain groups and
prohibits hate speech. Upon request, we will also remove that
sort of information when found on our dot-ca, our local
Canadian domain.
In China, we likewise do the same and, candidly, with great
reservation. That is why it took us so long to get into China
in the first place. But we do comply with the local laws there.
Senator Whitehouse. Thank you very much.
Thank you, Chairman.
Chairman Durbin. I want to followup, and if you could--I do
not know if you have to leave immediately, Senator Whitehouse,
but if you could show the two charts here from google.cn and
google.com, we tried to find a reference here to something very
generic, and so we decided it would be images--is that the
first one? This is on Human Rights Watch, which, of course, Mr.
Ganesan is here representing. And you will notice on the one on
the right, when you log in Human Rights Watch, what is
available on Google, and over here on the Chinese side, I think
if I can find the translation here, what they have to say about
it is--the cn site says ``cannot find the Web page matching
your inquiry.'' So if you are looking for Human Rights Watch
through google.cn, they basically say they do not know what you
are talking about. But if you go to google.com and make the
same request, there are some 35,000 entries that are available
to you.
Ms. Wong, is that what you meant earlier when you said you
offered both of these?
Ms. Wong. That is right. We do offer both of those. So
google.com is always made available except when the Chinese
Government itself decides to block us through its Great
Firewall.
Chairman Durbin. Let me show one other example, if I can,
and this one is photo images that are available. This is
through Yahoo!, and you will notice on the right, if you would
type in ``Tiananmen,'' you will receive Yahoo! images which
reflect what happened in Tiananmen Square, the historic events
in Tiananmen Square. However, if you go through the Chinese
site here, you will notice that there are a lot of tourist
postcard images of Tiananmen Square. It is a dramatically
different presentation. This is what I believe the people in
China are likely to see. They are basically being excluded from
seeing the reality of what actually happened in Tiananmen
Square. We use these just as examples so you understand what
this is about in terms of drawing these lines.
I am trying to step back here and put myself in your
position for a moment in terms of world competition. I start
this with the knowledge that 12 to 13 years ago, I was
following very closely what was happening in the Baltic States.
My mother was born in Lithuania, so I watched closely as they
tried to separate from the Soviet Union and bring democracy.
The thing that saved the Baltic revolution in Lithuania was
the fax machine. It is hard to believe in this day and age that
would be true, but the Soviets could not stop the fax machines.
And they were humming 24 hours a day with information coming
out of Lithuania and the Baltic States about what was really
happening, because you could not find out on the ground, from
official sources or otherwise, what was happening. So that very
primitive and early technology I think had a lot to do with
democracy coming when it did to the Baltic States.
So my notion when we got into the debate about China and
its free trade agreement was that there was no way that a
central authority, a government in China, could control the
glow of all those modems across China, that eventually that
information would overwhelm any government's effort at control.
And I think that goes to the heart of why we are here today.
There are two issues as I see it, and one is the complicity
or cooperation of American companies in limiting information,
because of government censorship or otherwise, to clients in
foreign countries. And the second part we have not touched on
but that we need to--I referred to it in my opening--is the
privacy of individuals and the cooperation of American
companies in identifying individuals who will then subsequently
be arrested, charged, and imprisoned for seeking information or
sharing information on the Internet.
It strikes me there are two things here, the censorship
policy and the privacy policy, that we have to ask about. And
the obvious question is: Can we, should we, establish standards
for American companies involved in global commerce when it
comes to these two things? Should we declare it wrong for an
American company to in any way cooperate with censorship and
repression?
Ms. Wong, what do you think?
Ms. Wong. So you know, let me talk a little bit about the
process that we undertook in going into China, which is prior
to 2006 and launching our dot-cn product, which is censored. We
found ourselves completely out of that market. For
unexplainable reasons google.com would be blocked, with nothing
getting through in China, much less politically sensitive
material. And so what our senior executives wrestled with was
would it be better to be there and be engaged and offer some
level of information rather than to be completely blocked for
reasons that we are completely unable to control?
And the most persuasive people that we spoke to when we
were wrestling with that were actually Chinese users in China
who used the Internet extensively. They said, ``You will do
more for us by being here than by staying out.'' The classic
diplomatic question of engagement, which is--
Chairman Durbin. I think I heard this same argument when it
came to apartheid in South Africa, as to--
Ms. Wong. Well, let me explain--
Chairman Durbin.--whether we should impose sanctions, have
normal relationships, or--and there were some who argued, well,
wait a minute, if the United States does not trade with South
Africa, the South African people will not have as many products
to buy and it will be hurting them, and they are not the
culprits. It is the government.
Ms. Wong. And that is certainly a valid argument in that
case. Here is what our experience has been, and the reason why
they told us to be there is that they believe that we would
provide competitive pressure to cause other companies to do
better. So let me give you an example of how that is.
When we went into China, we decided that if we were going
to remove search results, we would have a notice at the bottom
of the page. The notice basically says there are some search
results which are not appearing because of local rules, laws,
or regulations. There was no other search engine in China doing
it at the time that we went into China. After we did it, the
other major search engines in China are now having a similar
type of notice. That is a level of transparency that lets
Chinese users know, even if our U.S. service is blocked, that
something is missing in their search results. And we think that
that is real evidence that we being there has moved things in
the right direction. It is imperfect, and we know that. But we
do think that something about being there is right.
One more example, because I think that it is appropriate
that we focus on the very difficult issues of political
censorship in China, which we disagree with completely. Having
said that, there is also something about being there, about
having our open search box for Chinese users to go and ask any
question they want, to exercise the muscle of asking any
question they want and seeing what results they get back. That
in itself, we think, makes it worthwhile for us to have a
presence there.
Chairman Durbin. Mr. Samway, I would like your response to
the same question.
Mr. Samway. Thank you, Mr. Chairman. I also appreciate the
opportunity now to talk a bit about the example that you raised
on Tiananmen Square. Just below the surface in places like
China, there is incredibly robust discussion, open discussion,
and access to various subjects, whether they are local
corruption, environmental issues, health issues. The recent
earthquake in the Sichuan province is an example of how the
Internet is transforming society in places like China.
Senator Coburn made a reference that I thought was
especially powerful when he noted that information itself is
power, and that is what is available today more than ever
before to Chinese citizens despite the best efforts of the
government. We believe deeply in free expression and open
access to information, and like other companies, we also
believe philosophically that engagement is good.
Chairman Durbin. So Dr. Zhou in his testimony, his full
testimony, underscored the consequences of public censorship in
another area we have not discussed--public health. He noted
that the Chinese Government detained many people who attempted
to disseminate information about the SARS epidemic in 2004. In
2006, Amnesty International testified before Congress that over
100 people had been arrested for ``spreading rumors'' about the
SARS outbreak, which obviously affected people all over the
world.
So I guess my question to you is: You talk about the
positive opportunities where the Internet can provide
information, much like the early fax machines I referred to,
that otherwise might not have been available. But how do you
deal with the other side of that coin that Dr. Zhou raised?
That is, when you are asked to be complicit through your
companies in restricting the flow of information for the public
good and public health, aren't your hands a little dirty at the
end of the day if you participate in that? Mr. Samway?
Mr. Samway. Well, Senator, it certainly is troubling, and
we are troubled by the actions of the Chinese Government with
respect to their own citizens. We take responsibility. We have
learned valuable lessons, probably more than any other company
in the room, and we are taking those lessons and implying them,
taking individual steps and collective steps. We have been
working, for example, as a participant in this broad-based
global human rights dialog. Mr. Ganesan is one of the leading
participants for the human rights groups. We believe collective
action is critical. We also believe individual steps,
independent of what we can do as a group of companies, are
critical. We are taking this multi-pronged approach because we
have learned important lessons.
We also believe, as you know, Mr. Chairman, there is an
inherent tension, there is always a tension in going into these
emerging markets between opening up, allowing more access to be
available, and what the government can do to try to control
that access. And the SARS example I think is a very good one.
At the end of the day, the government was unable to stop the
tide of the flow of information, I believe, with respect to
SARS. They tried to contain the health epidemic which
threatened to become a global one, and ultimately,
communication and awareness of the issue required them,
essentially forced them, to come out into the open about the
challenge.
Chairman Durbin. Before we go into the second aspect here,
the right of privacy of individuals, I want to stay on this
topic and let Mr. Ganesan and Dr. Zhou comment on what you have
heard. From what we are hearing from Google and Yahoo!, it is
better that we are there than not being there. The people would
rather have us there in the country even if there is
censorship. We are notifying people that what we put on the
Internet is censored. And isn't it at the end of the day a
better policy to engage rather than to step back and disengage?
Mr. Ganesan?
Mr. Ganesan. Thank you. Well, I think that we all believe
that the free flow of information is a good thing, wherever it
is. But I would draw a very strong distinction between what the
companies are saying and what is actually happening.
There is censorship that a government imposes by taking
down a website or blocking Internet access. Then there is
censorship that a company does by its own discretion, which is
what is happening with search engines in China. There is the
firewall, and then there is the choice of companies to censor.
And the disclaimer, which is now about 2 years old--because
Google did talk about it at the first hearings on the Internet
before--is basically telling people that we censor. It is not
saying we are reducing censorship, which is a separate issue.
And what we have tried to do, both in terms of regulation and
pushing for legislation, as well as through a voluntary
initiative, is saying disclosing censorship is not enough, but
actually actively trying to reduce it to where your minimum
level is whatever the government says it is. Nobody is going to
find a company culpable if a government does like what they did
in Burma in September 2007, which is physically disconnect
telecommunications lines to prevent access. But where people
are going to look askance at a company is when they choose what
to censor and they decide, in anticipation of what the
government wants, what to censor. And what we are trying to do
is get at that problem, because we know governments are going
to try to restrict the flow of information, but what we would
like to see is companies go beyond the disclaimer and actually
reduce the amount of censorship going through.
Chairman Durbin. I am going to ask you about the code of
conduct, and I want to come back to the Foreign Corrupt
Practices Act, but first code of conduct. Why has this taken so
long? Which companies are dragging their feet? What is the
issue that has stopped our American companies from establishing
a code of conduct so that we at least can say we are not being
hypocritical, the values we have as Americans are reflected in
our corporate behavior?
Mr. Ganesan. The fundamental issue is a resistance to
having some third party come in and actually attest that the
companies are doing what they say they are doing. And I think
the resistance from that is somewhat reflective--I think
companies in general do not want to see third-party oversight--
and also misguided, because people forget that the reason we
are calling for a code of conduct and independent monitoring is
because when the companies were given discretion on censorship
and user privacy, they did not perform that great. That is why
we are here today. That is why we were here 2 years ago and the
like.
So now we need somebody else to step in just to attest to
the public that, hey, this process is in place, and if they
commit to doing this, we can actually show you in some way that
they are actually implementing these things, because the code
of conduct is not to assuage Human Rights Watch or anyone else;
it is to assuage a 20-something blogger in a country that wants
to speak out about his government, and he needs to know that he
is not making a Faustian bargain with a U.S. company, which is
in exchange for posting information that might be problematic
for a government, that he is not going to do it on a service
that actually turns that information over to a government or
stops it from being posted.
Chairman Durbin. So, Ms. Wong, Mr. Samway, why won't you
agree to independent monitoring? Why is this code of conduct
taking so long?
Ms. Wong. Well, Mr. Chairman, we, in fact, were one of the
founding companies to begin this discussion, and we are deeply
committed to it. We have been at every meeting. We have been
moving it along. And we agree, the 18 months has been a long
process.
Let me say two things very clearly. We would support an
external audit. We are very optimistic that it will be
finalized. Let me also say what our measure of success for this
process would be. For us, the importance of having all of the
companies and the addition of the human rights groups is not
necessarily about looking at whether the companies are being
held accountable to their processes. The point of having all of
the companies stand together on important principles--like
freedom of expression, requiring rule of law, you know, doing
an assessment of the countries we go into--is so that the
companies would stand together against the governments and hold
the governments accountable. The measure of success of this
process is whether we walk away with an ability to put pressure
on governments to do the right thing. That is the problem that
we are facing.
Chairman Durbin. Mr. Samway, are you agreed to independent
monitoring, external audits? Will Yahoo! sign up for that?
Mr. Samway. Thank you, Mr. Chairman. I will tell you what I
have said to Mr. Ganesan in our private meetings without, I
think, breaking the trust of the group. We unequivocally
support independent assessment of company activities.
Chairman Durbin. Looks like we have an agreement, Mr.
Ganesan. Bring out the papers and let's sign up.
So what is the obstacle? Why is this still going on for 18
months, the negotiations over a code of conduct?
Mr. Samway. At Yahoo! we are ready to move forward, as I
mentioned in my testimony.
Chairman Durbin. Well, I hope that within the next 48 hours
we will have an announcement. That would be terrific.
Dr. Zhou, you have heard the companies explain that they
believe they are doing the right thing by at least being in
China, even if they are subject to the censorship standards and
policies of that country. What is your reaction?
Mr. Zhou. Mr. Chairman, I would like to make two points.
First, for companies like Google and Yahoo!, I would say that
their self-censorship in China can be more damaging than other
kinds of censorship. This is because for Chinese people in such
a closed society, they take Google and Yahoo! as role models of
freedom of information. When they look at their websites and
find the information, they believe it is factual and unbiased.
Therefore for those not-so-much politically conscious people,
this is deceiving--they get the information from Baidu, and get
it from Google and Yahoo!, they compare them and conclude that,
well, they are the same thing and that is the truth.
The second point I want to make is that Google and Yahoo!
do not have to bend their knees to enter China. They can just
upright and walk into China by bringing down the firewall. They
can achieve this by either supporting companies like us or
finding their own way.
Chairman Durbin. Let me go to the second issue that I
raised, the rights of the individual. Mr. Samway, it is my
understanding that at the request of China, your company,
Yahoo!, disclosed the identity of a person, Shi Tao, who was
then later prosecuted, convicted, and imprisoned. Can you tell
me, what kind of standards would Yahoo! use to decide that one
of your customers should be subject to that sort of prosecution
for what would be innocent conduct here in the United States?
Mr. Samway. Let me begin, Mr. Chairman, by saying that it
is deeply troubling that people have gone to jail as a result
of some connection to our company. We have also tried to take
steps specifically with Mr. Shi. In particular, we have settled
a lawsuit. We have also announced the Human Rights Fund and
have been working closely with Harry Wu, a noted activist and
human rights dissident based here in Washington, to create this
fund to provide humanitarian assistance for dissidents such as
Mr. Shi and other dissidents who have been imprisoned for
expressing their views online.
Chairman Durbin. And so tomorrow if Yahoo! had a similar
request from the Chinese Government to disclose the identity of
someone who had been involved in what they considered to be
illegal conduct or misconduct, what would your company do?
Mr. Samway. Well, as you know, Mr. Chairman, we currently
have an investment in a company that runs the day-to-day
operations of Yahoo! China. That company complies with the law,
as would any Chinese company. Again, we are deeply troubled by
the consequences of the restrictions on access to information
and also the attempts by the government to seek disclosure of
data on its own users.
Chairman Durbin. So you own 40 percent of the company,
which if it received a request, I take it from what you said
they would disclose the name of the person. Is that true?
Mr. Samway. Mr. Chairman, you make a good point about
compliance with the law, which any Chinese company would be
required to do in this case. Frequently, sir, it is not the
name of the person. There is a request that comes in for a user
ID that is not always identifiable to the person him- or
herself. But, again, to us it is deeply troubling, and as I
mentioned, we take responsibility for our own actions. We have
learned valuable lessons, and we also want to take concrete
steps working with partners, working on our own, to make
responsible decisions in the future, to be a leader in human
rights.
And to give you one example, we currently conduct--and I
think we may be the only company to publicly announce and
commit to this--a human rights impact assessment before
entering any market, and it covers the two pillars that you
mentioned: free expression, which goes to censorship;, and user
trust, which goes to privacy. We assess what the potential
intersection points are with our products in the current human
rights landscape in the country and design mitigation
strategies to address those issues.
Chairman Durbin. Well, I am still a little bit troubled by
this, because as I understand what you have told me, it is that
you have enlisted Mr. Wu, who is widely respected, and others.
You have made investments, dollar investments, in human rights
funds to support the families of those who are imprisoned. And
you are committed to human rights. But at least through the
company that you own a 40-percent share of, you are going to
have a booming business with your human rights assistance fund
because as you turn over more and more Chinese who are using
your product for prosecution, there will be more need for
assistance for their families.
I am struggling with trying to reconcile here what your
corporate goal is and your corporate image in this debate.
Mr. Samway. Well, as I mentioned, Mr. Chairman, our
founding principles include promoting access to information.
With respect to Alibaba, we also have exerted our influence
with respect to the free flow of information in China. And to
give two examples, one relates to search disclosure, and that
is, notice to users on all search pages of Yahoo! China that
certain results do not appear. There is also a notice on the
registration page of Yahoo! China that indicates that the
product itself is subject to PRC law. Now, those are forms of
influence that we have tried to exert. It is a complex
relationship, certainly, and Yahoo! China makes its own
decisions day to day, not at the request of our team at Yahoo!
But certainly we can exert influence; we have and will continue
to explore avenues to exert that influence with respect not
just to censorship but to the privacy issue you raise.
Chairman Durbin. Ms. Wong, how does Google deal with its
so-called complex relationship when it comes to disclosing the
identity of your users?
Ms. Wong. So we go through a similar struggle in terms of
thinking through which countries we will enter and what
services we will make available. And as I mentioned during my
earlier testimony, in China we made a decision to launch only
certain services. We do not offer Gmail or Blogger on our dot-
cn, our Chinese service, specifically for the reason that we do
not want to be in the position of potentially compromising
someone engaged in political dissent.
Chairman Durbin. So Google decided they would rather not do
business in those areas which were most likely to be
compromised by Chinese law.
Ms. Wong. That is correct.
Chairman Durbin. Mr. Samway, Yahoo! decided they would do
business but through another company, and let me ask you: Was
there a sensitivity to this same issue? You realized you were
walking into areas with e-mail and blogging most likely to be
monitored and prosecuted by the Chinese Government, but decided
for economic reasons to do it anyway?
Mr. Samway. If I can give some context to the timeframe, we
feel like we were Internet pioneers and moved in, in the late
1990s in the market, indeed before other companies even existed
in the technology space. We moved into China to expand
information, to expand the availability of information. We
moved in at a time, as you know, Mr. Chairman, when the U.S.
Congress was normalizing trade relations with China,
encouraging not only American companies generally but American
technology companies specifically to go into this market, to
explore it. As a young company, but 5 years old at the time, we
entered this market--again, as a trailblazer, as a pioneer. And
as I mentioned, we have learned tough and valuable lessons. We
are also taking those lessons and enacting concrete steps to
build capacity, not to gather a group of smart people around a
table and figure out what the future of the Internet should
look like, but building real infrastructure into the company's
DNA so that we can make responsible decisions on human rights.
Chairman Durbin. Ms. Wong, I want to make sure the record
is complete here. I have talked to Mr. Samway about a company
in which they have an investment. Google has an investment in
Baidu, which is the largest Chinese search engine.
Ms. Wong. We do not have an investment in Baidu.
Chairman Durbin. You do not?
Ms. Wong. No.
Chairman Durbin. I am sorry. Do you have an investment in
any other--
Ms. Wong. I believe we did previously and sold off that
investment a few years ago. I can check that out for you.
Chairman Durbin. OK. Let me ask, then, on the Foreign
Corrupt Practices Act. Mr. Ganesan has raised that, and I do
not know that it is a complete analogy, but it is an
interesting analogy. In 1977, we passed a law, the Foreign
Corrupt Practices Act, which is aimed at stopping U.S.
participation in bribery and other corrupt practices of foreign
governments. When the law was first proposed, it was criticized
by the business community at the time. Congress recognized the
importance of stopping American involvement in these practices
that went against our values as a country. The Act has lessened
U.S. involvement in supporting corruption around the world, and
what is more, it led to several international agreements and
conventions to stop bribery and corruption internationally.
When we took the first step against this, much of the world was
skeptical, but then followed suit.
So let me ask both Ms. Wong, Mr. Samway, and Mr. Chandler:
Do you see Mr. Ganesan's suggestion that we should pursue
something along the lines of the Foreign Corrupt Practices Act
to be analogous to what we are discussing here? Is it a way for
us to declare that certain practices of foreign governments are
inconsistent with the values of our country and can even be
prosecuted in our country? Mr. Samway?
Mr. Samway. Thank you, Mr. Chairman. I have to admit that I
am not expert enough on the Foreign Corrupt Practices Act
itself to know the details to be able to compare. I will say
that I think there are four important points in addressing this
issue, one of which gets to the point you make on legislation.
The first is for the government, the U.S. Government,
collectively for governments around the world, to make Internet
freedom a priority. There are different ways to do that. Again,
governments have different tools in the toolbox to do that.
The second way is for companies to build capacity on their
own. We do not need to wait for a collective process, and I
agree, independent assessment has been a point that has held us
up recently. At the same time, this most meaningful part of
collective action is really about companies building capacity
to make responsible decisions. Independent assessment is
important. There are clear practical limitations. That is
exactly what we struggle with, what we have been focused on
most intensively, I would say, in the past few months.
The third area where we can really create change is around
collective action, and that is getting to yes in this global
code of conduct, where we have a collaborative process with
companies, human rights groups, academics sharing, learning,
and helping to understand the challenges of the problem.
The fourth area, which I think gets to your point, Mr.
Chairman, is legislation. We support backstop legislation,
something that protects U.S. companies, but not legislation
that puts us in the untenable position of having to choose to
violate a local law or choose to violate U.S. law. That is not
sustainable or tenable for a U.S. company, and then we get back
to the philosophical debate on engagement. And a company will
ultimately have to choose not to go in.
We support engagement. We support legislation that allows
companies to act responsibly, that has appropriate limitations,
and a clear enough depth of understanding of what the
challenges are we face on the ground.
Chairman Durbin. So, Mr. Ganesan, doesn't that get to the
crux of it here? When it came to foreign corrupt practices, we
were dealing with issues that were nominally criminal already
in the countries where they were being performed. In this
situation, we are dealing with practices, such as censorship,
which are nominally legal in the countries where we are finding
it. Isn't that a critical difference?
Mr. Ganesan. It is a difference, but there are ways to deal
with it. I mean, there are two elements of the Foreign Corrupt
Practices Act. One is punishing someone for the act committed,
and the other one--and this is what is important in this
context--is ensuring that the companies have the systems or the
capacity in place to prevent that act from occurring. So say we
take user privacy and freedom of expression, non- censorship.
We can certainly devise standards, in the voluntary process or
otherwise, on what a company should be doing to reduce or
minimize the risk of that happening, just like the Foreign
Corrupt Practices Act does with bribery. And we can legislate
in a way that companies are bound to show that they are taking
those steps internally to reduce censorship and reduce the risk
to user privacy.
Now, on the flip side, what happens when a company is in
conflict with the local law? The Global Online Freedom Act
tries to set out a process in which a questionable request from
an Internet-restricting country, as designated by the Act and
designated by the government authority within the Act, will--
instead of having the company have to say no to that
government, it sets out a process where the U.S. Government
steps in and deals with it in a diplomatic manner.
So, in other words, in a sense it raises the transaction
cost for the repressive government because now instead of
bullying a company, it has to go to the U.S. Government and
deal with it in a diplomatic manner. And in a sense, it can
reduce the transaction cost for an individual company, because
it can say to them, much like companies have told us about the
Foreign Corrupt Practices Act, Hey, I cannot make this decision
myself, I have to refer it to the U.S. Embassy or the U.S.
Government entity within the Act.
Now, that is, to our knowledge, a way to address the issue.
And, yes, there may be certain downsides to it, but instead of
dismissing it as saying it is a conflict of laws or some other
problem, I would challenge companies to come up with an
effective alternative that meets the same objectives and
propose it as legislation, rather than only looking at what the
negatives of existing proposals are. I mean, we are more than
happy to work with companies to think about that, but we think
it needs to be there, because we need to change the dynamics.
Because as long as the dynamic is a company having to deal with
a Government about a repressive request, with no backstop,
whether it is the U.S. Government or anything else, we are
going to have this dynamic endlessly. So we need to change the
rules in some way.
Chairman Durbin. So, Ms. Wong, does that create a Catch- 22
for your company if they comply with the Chinese standards in
censorship and there is a law in the United States which says
that is a criminal act? How do you deal with that?
Ms. Wong. There would absolutely be a tension, and we have
worked through that not just with China, but with many other
countries around the world that assert their jurisdiction on
the same areas.
Having said that, Mr. Chairman--and I am glad you raised
it, because we have talking about it at our company, at our
senior executive level, over the last several weeks--we would
support legislation in this area because we do feel like it is
the thing that will bring all the companies to the same place.
It may be the most effective way to deal with the other
countries.
Chairman Durbin. So let me ask two wrap-up questions here
of things that still I have a question in my mind that you
testified to. Reporters Without Borders notes that Google is
financing Baidu, the Chinese company that is a market leader in
search engines. And you are saying that is not true.
Ms. Wong. We are not investors in Baidu.
Chairman Durbin. OK. And, second, when it came to the code
of conduct, as I understand it, Yahoo! said they would sign
onto the code as is, and I think your statement was that you
supported external audits. So would you accept the code of
conduct as it currently is written?
Ms. Wong. We have put another proposal on the table. It
involves external audits. I think that that is what we are
currently working with the human rights groups on the nature of
those audits, what is measured, how it is measured, who does
the measuring. But we are confident that that will get
finalized. We are optimistic it will get finalized.
Chairman Durbin. And you can be confident that we are going
to be watching you to make sure it does get finalized. After 18
months in this lightning fast communications world that we live
in, what is slowing this down? Please, I hope that everyone
will work in good faith to complete it.
Thank you for this fascinating and interesting panel, and
the very expert testimony we received today. As I said, the
hearing record is going to remain open for a week for
additional materials from interested individuals and questions
for the witnesses.
At the end of the day, I am going to be sitting down with
Senator Brownback to--or, pardon me, Senator Coburn--and
Senator Brownback, for that matter--to discuss whether we are
going to introduce legislation similar to that pending in the
House or craft our own along these lines. I really think this
is a critical area that we need to address forthrightly and
honestly.
I want to salute some unsung heroes on my staff: Joe Zogby,
who inspired me to ask for this Subcommittee and has been my
leader on so many of these issues; Talia Dubov; Jaideep Dargan;
Reema Dodin; Corey Clyburn, a legal intern; and Heloisa Griggs.
They have done an awful lot of work to make this hearing a
success.
Thank you all for being here. There will be statements for
the record from a number of organizations that will be entered
without objection, and since there is no one here to object, so
ordered. The Subcommittee stands adjourned.
[Whereupon, at 11:55 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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