This article demonstrates how corporate codes of conduct developed in the apartheid era are a viable means to lift the information curtain in China.

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Digital Censorship and
the Great Firewall of China
Corporate Codes of Conduct a Viable Means to
Lift the Information Curtain
By Santiago A. Cueto, Coral Gables
Earlier this year, What is the Great Firewall This elaborate system can block
U.S. Secretary of China? whole sites, individual pages and
of State Hillary even up-to-the-minute search results
Over sixty laws and administrative
Clinton traveled to that constantly change in response to
regulations have been enacted by the
China where she unfolding global news and events.
sternly condemned Chinese government to censor and
While the Chinese government
strict Internet cen- limit access to the Internet. These
identifies broad categories of prohib-
sorship in China laws and regulations are implement-
ited content, the rules are far from
and pledged to help ed and enforced under an elaborate
clear, leaving a great deal of ambigu-
S. Cueto Chinese citizens and sophisticated system known as
ity about what is off limits. Without
tear down the “Great Firewall of the “Great Firewall of China.”
any guidance or official statement
China.” The remarks of Secretary The “Great Firewall of China” is
about why something may have been
Clinton that “we stand for a single a complex matrix of filters, censors
blocked, companies operating within
Internet where all of humanity has and barriers that regulate the flow of
China often err on the side of caution
equal access to knowledge and ideas” online information within the People’s
and diligently delete anything that
echoed the stern tone of Ronald Republic of China. The matrix, of-
may bring them into disfavor with the
Reagan twenty years ago when he ficially known as the “Golden Shield
government. This is one of the reasons
challenged Soviet leader Mikhail Project,” is comprised of both tech-
Google exited the country earlier this
Gorbachev: “Mr. Gorbachev, tear nological and human elements that
year. Given the oppressive unpredict-
down this wall!” work together to create a distorted
ability and gross inequities of China’s
In 200 digital walls have replaced version of the Internet—one without
Internet censorship regime, many
Soviet-era “bricks and mortar” to all the information the government
attempts have been made to limit its
divide repressed citizens of authori- does not want its citizens to see.
effect both in the U.S. and interna-
tarian regimes from the world’s free- Four key elements make up the
tionally.
flowing current of information and Great Firewall of China:
ideas. Since Secretary Clinton’s visit IP Blocking—The government
Legal Challenges to Great
to China, the State Department has can block a unique computer ad-
brought the issue of online freedom dress if it hosts prohibited content. Firewall of China
to the forefront in its diplomacy The United States
Keyword Filtering—The govern-
around the world and joined with Difficulties arise when U.S. Inter-
ment monitors all international In-
Internet providers and social-media net companies venture into foreign
ternet gateways and blocks specific
companies to forge a public-private markets to reach out to millions of
pages based on keywords and con-
partnership in Internet freedom. Such additional Internet users. In the case
tent matched against a “blacklist.”
collaboration is key, since authoritar- of China, companies that want to pro-
Self-Censorship—The govern- vide Internet services in the country
ian regimes so often contract out the
ment requires all Internet compa- must become subject to the laws and
daily work of censorship to private
nies operating within China to self- regulations of the Chinese authorities.
companies. But it may not be enough.
censor their content or face harsh Because most of these regulations are
Alternative solutions in U.S. domestic
penalties and possible shutdown if contrary to the liberal approach of
laws and international-trade law have
they fail to do so. Internet regulation found in Western
fallen short of posing a viable chal-
lenge to digital censorship in China. Enforcement—It is estimated states, U.S. companies are caught in a
In the final analysis, voluntary corpo- that approximately 30,000 Chinese vice-grip between the demands of the
rate codes of conduct may be the only “Internet police” are monitoring Chinese government and the marked
viable force to bring down the Great Internet traffic and blocking pro- displeasure of the U.S. government
Firewall of China. hibited content. and human rights organizations. The
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most popular examples of companies host of reasons, it nonetheless points for example, Google’s search engine is
caught in this grip are U.S. software to a promising U.S. trend to look for being squeezed out by Baidu, Face-
giants Google, Microsoft, Yahoo!, innovative legal solutions to put an book by Ren Ren Wang, and Youtube
and hardware maker Cisco Systems. end to digital censorship in China. by Tudou and Youku.
Microsoft and Yahoo! both censor the Another legal innovation recently Although there may be some chal-
results of their Chinese-language employed in the U.S. to chisel away lenges related to audio-visual media
search engines to varying degrees by at the Great Firewall of China is the content under the General Agree-
removing politically sensitive content Alien Tort Claims Act (ATCA). The ment on Trade and Tariffs (GATT),
from the search results. Google left ATCA provides a private cause of the more logical approach relevant to
China earlier this year but recently action for aliens for torts committed search engines and social network-
renewed its license with the Chinese in violation of the law of nations or a ing services would be to challenge the
government. The search giant, how- treaty of the U.S.5 In April 2007, the practice under the General Agree-
ever, did not make any concessions U.S.-based NGO “World Organiza- ment on Trade in Services (GATS).
regarding censorship—for now. For its tion for Human Rights” filed a major Given the crucial structural differ-
part, Cisco Systems has been accused lawsuit in a U.S. district court against ence between GATT and the GATS,
of supplying the Chinese government Yahoo! based on the Alien Tort Claims however, the arguments are far from
with some of the hardware used to Act, accusing the Internet corporation straight forward.8 One of the most
build the Great Firewall. of aiding and abetting the Chinese difficult challenges to overcome
The tension between China’s strict authorities to arrest and torture a regarding the filtering of online
Internet censorship regime and the Chinese journalist.6 content by the Chinese government
United States’ decidedly hands-off According to the Complaint, Yahoo! is the General Exceptions clause
approach to the Internet prompted revealed, at the request of the Chi- in Article XIV of the GATS. Unless
the U.S. Congress to consider pass- nese authorities, the name of the jour- the contested measure constitutes a
ing a statute to promote freedom of nalist who was using a Yahoo! Inter- means of unjustifiable discrimina-
expression on the Internet: the Global net account to disseminate his calls tion, the GATS cannot be invoked to
Online Freedom Act.2 The primary for democracy in China. Use of the prevent the adoption of laws that are
purpose of the bill is to establish an ATCA could add some pressure on In- “necessary to protect public morals or
Office of Global Internet Freedom ternet service providers to show more to maintain public order.” It is pos-
empowered to draft a list of “Internet- respect toward basic human rights sible, however, that a challenge to the
restricting countries.” The bill aims and democratic standards of free measure could prevail under the WTO
“[t]o prevent United States businesses speech. Given the Supreme Court’s framework if it is shown that there
from cooperating with repressive recent trend toward narrowing the exists a reasonably available alterna-
governments in transforming the applicability of the ATCA, however, tive that is less restrictive.
Internet into a tool of censorship and it remains to be seen whether new While there are valid points to
surveillance, to fulfill the responsibili- claims brought under the Alien Tort challenging the Great Firewall of
ty of the United States Government to Claims Act will exert any meaningful China in the WTO context, the incen-
promote freedom of expression on the pressure of China to reconsider its diary political fallout from bringing
Internet, to restore public confidence current regime of Internet censor- such a claim would undoubtedly fuel
in the integrity of United States busi- ship.7 While the U.S. continues to a trade war unprecedented in scale.
nesses, and for other purposes.”3 develop alternative ways to address Given the political volatility of such
Section 20 of the Act states that a Internet regulation in China, some an approach, other less-confronta-
“United States business that creates, compelling arguments are being made tional solutions must be considered.
provides, or hosts any Internet search at the international level. Corporate codes of conduct present
engine or maintains an Internet con- such an alternative.
tent hosting service may not locate, International Trade Law
within a designated Internet-restrict- Many in the international com- Corporate Codes of Conduct
ing country, [any materials] involved munity have argued that China’s a Viable Means to Challenge
in providing such search engine or firewall system is a barrier to entry Digital Censorship in China
content hosting service.” Under the and violates international trade law. Corporate codes of conduct played
Act, Internet companies are also The thrust of this argument is that a major role in the collapse of apart-
prohibited from altering their search the Chinese government is using the heid in South Africa and are a viable
engines to produce different results “Great Firewall” as an instrument of means to end digital censorship in
for users accessing the search engine online protectionism, by systemati- China.9 Secretary Clinton’s remarks
from different countries.4 Although cally excluding foreign providers in concerning the “information curtain”
the bill is unlikely to be enacted for a favor of domestic services. This is why, dividing the world, echoes the in-
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justices of the apartheid era where bring every American company I times gone by, the Great Firewall of
much greater injustice and unspeak- can out of South Africa.3 China may one day become one, too.
able acts against humanity were
Given the success of the Sullivan
challenged and ultimately overcome Santiago A. Cueto is founding
principles in ending apartheid, we
through the use of corporate codes of partner of the Cueto Law Group, P.L.
should look at applying the same
conduct. His practice includes complex litiga-
principles to lift the information cur-
These corporate codes of conduct, tion in federal and state courts. He is
tain in China.
which came to be known as the Sul- currently the lead attorney in a class
livan Principles, were pioneered by action lawsuit against two of the
Why Multinationals Should
the African-American minister Rev. world’s largest Internet domain name
Adopt Corporate Codes of
Leon Sullivan, a zealous promoter of providers. The case has been featured
Conduct
corporate social responsibility.0 in The National Law Journal, the
Google, to its credit, has pio-
In 977, Rev. Sullivan was a mem- ABA Law Journal, CNBC, Forbes and
neered the corporate-code movement.
ber of the board of General Motors. At PC World magazines. Mr. Cueto at-
Google’s defiance of China’s censor-
the time, General Motors was one of tended law school at the University of
ship mandate illustrates the power of
the largest corporations in the United Florida and Université de Montpellier,
corporate social responsibility initia-
States. General Motors also happened France. While in law school, Mr. Cueto
tives to influence and reshape the
to be the largest employer of blacks was an executive editor of the Florida
repressive policies of authoritarian
in South Africa, a country that was Journal of International Law. Prior
regimes.
pursuing a harsh program of state- to attending law school, he received a
While most major multinational
sanctioned racial segregation and dis- Master’s degree in international rela-
companies consider a presence in
crimination targeted primarily at the tions from the University of Miami.
China critical to their future success,
country’s indigenous black population. Mr. Cueto’s international education
Google has demonstrated that even
the largest of corporations are will- and experience has enabled him to
Corporate Codes of Conduct counsel companies operating through-
Originally Developed to ing to forgo short-term gain in the
interest of an ultimate triumph over out the world. He currently serves as
Challenge Apartheid executive counsel to companies in the
Rev. Sullivan developed the codes censorship—similar to how corpora-
tions sacrificed profits to challenge global supply and communications in-
to apply economic pressure on South dustries. In addition to his work as an
Africa in protest of its system of apartheid in the 970’s and 980’s. In
Google’s case, this will come at a cost attorney, Mr. Cueto volunteers his time
apartheid. Before the end of South by assisting impoverished communi-
Africa’s apartheid era, the principles of an estimated $300 million a year in
revenue.4 Although this will hardly ties around the world. He has traveled
were formally adopted by more than to India to help establish literacy pro-
25 U.S. corporations with operations make a dent in Google’s coffers, it is a
step in the right direction. grams for primary schools. Mr. Cueto
in South Africa. Of those companies has also worked to distribute micro-
that formally adopted the principles, loans to struggling entrepreneurs in
many completely withdrew their ex- Conclusion more than fifteen countries across
isting operations from South Africa.2 Corporations adopting codes of the globe, including Peru, Tajikistan,
The principles eventually were widely conduct must be unified and patient Ukraine, Cambodia, Indonesia, So-
adopted by United States-based cor- in their approach. The challenge moa and Nepal. He may be reached by
porations and played a significant role now will be to put these ideas into email at sc@cuetolawgroup.com.
in the collapse of the South African practice by incorporating them into
regime. In reflecting on the success diplomacy and trade policy. Doing so Endnotes:
of his anti-apartheid efforts, Rev. Sul- will apply meaningful pressure on These laws are not applicable in Hong
livan recalled: companies to act responsibly through Kong and Macau, which are designated as
Starting with the work place, I the adoption of corporate codes of special administrative regions not subject to
most of the laws of the People’s Republic of
tightened the screws step by step conduct with respect to their China
China, including limits placed on the free-
and raised the bar step by step. operations. Pressing China to open flow of information. H.K. Basic Law, ch. II,
Eventually I got to the point where the Internet to its people and al- arts. 8, 9.
I said that companies must practice low for freedom of expression will 2 Global Online Freedom Act, H.R. 227,
corporate civil disobedience against not happen overnight. Indeed, the th Cong. (2009-200). This bill is in the
first stage of the legislative process. It has
the laws and I threatened South Chinese experience with the Inter- been referred to the House Foreign Affairs
Africa and said in two years Mandela net is still in the early phases of Subcommittee and the House Energy and
must be freed, apartheid must end, development. Just as the Great Wall Commerce Subcommittee.
and blacks must vote or else I’ll of China became an ancient relic of 3 Id. Preamble.
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4 Id. § 203. acceptance among civilized nations than the proposed to address international environ-
5 28 U.S.C. § 350 (2006). The ATCA states historical paradigms familiar when section mental concerns. See, e.g., Santiago A. Cueto,
that: “The district courts shall have original 350 was enacted.” Id. at 732-33. Within this Oil’s Not Well in Latin America, Curing the
jurisdiction of any civil action by an alien for historical context, the Court struck a balance Shortcomings of the International Environ-
a tort only, committed in violation of the law and set forth a standard which recognized mental Law Regime in Addressing Industrial
of nations or a treaty of the United States.” the evolving nature of international law and Oil Pollution Through Corporate Codes of
provided a modern framework for determin- Conduct, Fla. J. Int’l laW 535 (997).
6 Wang Xiaoning v. Yahoo! Inc., No. C07- ing whether a tort constitutes a cause of
025 C (N.D. Cal. Apr.8, 2007). Under 0 Richard L. Herz, The Liberalizing Effects
action. The framework incorporates four of Tort: How Corporate Complicity Liability
international pressure, Yahoo! settled the
features that approximate the considerations Under the Alien Tort Statute Advances Con-
lawsuit. In a written statement, Yahoo! said
used in 789 to establish a private right of structive Engagement, 2 harv. hum. rts. J.
it will provide “financial, humanitarian and
action: universality, obligatory nature, speci- 207, 224 (2008).
legal support to these families” and create a
ficity and prudential considerations.
separate “humanitarian relief fund” for other Cristina Baez, et al., Multinational Enter-
dissidents and their families. Yahoo Settles 8 The primary structural difference be- prises and Human Rights, 8 u. mIamI Int’l
With Chinese Families, Wash. Post, Nov. 4, tween the GATT and GATS is that the GAT ComP. l. rev. 83, 327 (2000).
2007. applies to all categories of goods except those
a Member specifically excludes, whereas un- 2 John G. Scriven, Corporate Responsibil-
7 See Sosa v. Alvarez-Machain, 542 U.S. 692 ity and Regulating the Global Enterprise, 6
(2004). In Sosa, the U.S. Supreme Court cau- der the GATS, they are obligated only to the
sector-specific commitments they choose to transnat’l laW. 53, 63 (2002).
tioned against liberal expansion of the ATCA
beyond the original scope of offenses con- assume. For example, a Member may accept 3 KevIn mCnamara, the maCBrIde PrIn-
GATS obligations in relation to cross-border CIPles: IrIsh
amerICa strIKes BaCK, n. 30 (U.
templated when it was passed in 789: “[W]e
are persuaded that federal courts should not supply of data processing services but make Chi. Press 200).
recognize private claims under federal com- no similar commitments in relation to finan- 4 Miguel Helft, For Google, a Threat to
mon law for violations of any international cial services. China With Little Revenue at Stake, n.Y
law norm with less definite content and 9 Corporate codes of conduct have also been tImes, Jan. 5, 200 at A-0.
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