October 19, 2011—The Obama administration on Wednesday said that, using World Trade Organization rules, it was calling on the government of China to answer detailed questions about its censorship of the internet–in particular, the blocking of websites of US-based businesses seeking to tap the vast Chinese consumer market.
The announcement, which grows out of an initiative of a free speech nonprofit group, the First Amendment Coalition (FAC), is a significant step in investigating and challenging internet censorship as a violation of free trade rules. Such a challenge would likely include the claim that China’s blocking and disrupting of US-based websites–under censorship rules that are cloaked in secrecy, applied arbitrarily, and enforced without a semblance of due process–are an illegal trade barrier under WTO treaties.
The Office of the US Trade Representative, which made the announcement and represents the US before the WTO, highlighted the harm China’s censorship system caused to small and mid-size US businesses that do not have operations in China. Because their main access to the Chinese market is through the internet, the blocking and disruption of their websites effectively precludes their competing for Chinese consumers.
“We are pleased that the USTR is demanding that China shed light on its elaborate, but highly secret, system for censoring the internet,” said Peter Scheer, FAC’s executive director. FAC in 2007 launched its effort to persuade the USTR to act against China’s internet censorship. Earlier this year FAC proposed that USTR invoke a WTO rule to extract information from China, the step it announced Wednesday. “We appreciate USTR’s efforts on this important issue,” Scheer said.
Gilbert Kaplan, FAC’s lawyer and a partner in the Washington, DC office of King & Spalding, said “it’s time for the US government to just say no to China’s censorship of the internet, which has become more restrictive in recent years, causing untold competitive harm to US information and technology companies at a time when the US economy can least afford it.”
Below are the questions that the USTR announced it had posed to Chinese government authorities:
“1. Websites of service suppliers based outside of China are sometimes inaccessible in China, which can prevent those companies from marketing products and supplying services to the Chinese market. The United States would like to better understand China’s rules governing website blocking so that service suppliers based outside of China may adopt appropriate policies to avoid encountering this problem.
a. Who or what ministry is responsible for determining if and when a foreign website should be blocked in China?
b. What are the guidelines and criteria for blocking access to foreign websites? How often are these guidelines and criteria changed or published? Where are these guidelines published? Are they made public in advance of their implementation? Which ministries are responsible for drafting them?
c. What is the process for implementing a restriction on a website? How does the relevant entity determine whether an entire website should be blocked or only services or content deemed illegal?
d. Is the blocking implemented directly by the government, or indirectly by Internet service providers (ISPs) and/or telecommunications companies?
e. If blocking is carried out by ISPs or telecommunications companies, are these actions typically implemented through written governmental orders? If so, which governmental organs are authorized to issue such orders?
f. How can a service supplier without a physical presence in China determine if access to their website is or will be blocked in China? To whom should such a supplier direct questions if there are any misunderstandings?
g. Can an affected service supplier appeal a decision to block access to their website? If so, what is the procedure for appealing, and where is that procedure published? Can a service supplier use the court system to appeal a decision to block access to their website? If so, has any such appeal ever been successful?
h. Is the same process used to prevent access to foreign and domestic websites providing similar services in China? If the process is different, please describe the differences.
2. The United States understands that the State Council established a State Internet Information Office (SIIO) in May 2011. The United States is interested in better understanding the functions of the office and whether it is the appropriate interlocutor for foreign businesses that have questions or concerns regarding website inaccessibility.
a. What are the responsibilities and authorities of the SIIO?
b. Will the SIIO handle licensing or other approval processes for Internet service providers or make decisions regarding filtering of foreign websites? If so, please describe which of these processes the SIIO will manage.
c. Should companies contact the SIIO or some other entity when they have questions regarding China’s Internet filtering laws, regulations and policies? If the SIIO is the appropriate contact, which office or individual should they contact? If not SIIO, which ministry and office should companies contact?
d. Which categories of objectionable conduct are managed by each ministry with responsibilities or authorities for managing Internet content?
3. Based on information provided by the SIIO earlier this year, the United States understands that foreign websites are sometimes inadvertently blocked when they share an IP address with a website which China has deemed harmful.
a. Can you explain how such inadvertent blockages occur?
b. Are there other ways that China can filter material deemed harmful to avoid such inadvertent website blockages?
c. Would Chinese authorities consider it reasonable to notify the owner of a web hosting service that one or more sites that the service hosts are being blocked in China, so that the web hosting service can ensure that other legitimate sites are not inadvertently blocked? Are Chinese authorities already doing this?
d. What steps should companies take when they become aware of such inadvertent blockages to resolve any issues and ensure their services are accessible in China?
4. The Measures for the Administration of Internet Information Services, issued by the State Council on September 25, 2000, describe nine categories of content which Internet information service providers may not disseminate. The Provisions on the Administration of Internet News Information Services, issued by the State Council and Ministry of Information Industry on September 25, 2005, add two additional categories of content which may not be transmitted. Given the broad nature of these categories, the United States is seeking greater clarity on the content that falls within them.
a. Are there any laws, regulations, policies or other guidance that establish criteria to determine when content fits into these eleven categories? If so, where can a service supplier access these measures?
b. Are government requests or orders to filter specific terms online ever communicated directly to Internet information service providers? If so, how are these directives communicated? Are these requests or orders made public? Does an Internet information service provider have the right to obtain a written order prior to implementing such a directive?
c. Are the same terms subject to filtering made available to Internet information service providers inside China and outside China?
5. According to the White Paper on the Internet in China, “telecommunication business operators and Internet information service providers shall establish Internet security management systems and utilize technical measures to prevent the transmission of all types of illegal information.”
a. How is illegal information defined in this instance?
b. Is a written governmental order required for either a private corporation or a relevant authority to block the transmission of illegal information?
c. What types of technical measures are service suppliers expected to use to prevent transmission of the illegal information?
d. Do authorities in China approve specific technical measures? If so, which ministry does this?
e. Are the technical measures employed by operators to block the transmission of illegal information applied automatically to domestic and foreign traffic? If not, how are they applied?
f. Does Internet content from outside of China go through a separate monitoring process for illegal information than Internet content created inside of China? If so, how do the two processes differ?”
For more information, contact:
King & Spalding
First Amendment Coalition
San Rafael, CA