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Who’s Right: Debating Internet Censorship

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Derek Bambauer: We live in a world of ubiquitous Internet censorship and surveillance. Tech companies confront these questions not just when doing business in China or Egypt or Pakistan, but in Australia and India. America requires telecommunications companies to build wiretapping capabilities into their products and services; once spying is part of the core functionality of, say, Internet telephony, it’s available to countries whose snoops are far less restrained than the FBI.

We should acknowledge that China, Australia and Ethiopia do the same thing: They restrict access to content online through both technology and law, and they spy on Internet communications. Thus, we need a new way to guide business decisions about when to participate in filtering and surveillance, because the binary world — censorship or freedom — no longer exists.

My response to this is a bit radical: I think there are circumstances under which countries can legitimately censor the Internet. (It’s less controversial to concede that states can spy on their own citizens at times — every country has a long history of doing so.) I argue that the key factors determining legitimacy are found in the process by which a country arrives at the decision to filter the ‘net, and how precisely it blocks content in practice.

Richard Epstein: You suggest that it is hard to tell which reasons are valid because nations filter different kinds of Internet content. I am not so sure this is correct. Do we have one attitude toward the Chinese who restrict political speech? Another to the folks in Mumbai who block the speech only of extremist Hindu groups? A third to the French who ban images of white supremacist groups? What about New Zealand’s decision to block child pornography? And yes, the United States’ decision to block the unauthorized use of copyrighted material? Five countries with five different agendas. …

You suggest that we turn instead to procedures — how the governments made these decisions. … I disagree. My entire constitutional career as a classical liberal scholar has persuaded me that we should judge legislation and other government action by what it does. I am more confident that we can find the right principles to look at the output of the process than by guessing about the many ways that different nations make their laws. I see no reason why a bad law that comes out of good processes should be tolerated. At the same time I see no reason why good laws that emerge, as if by chance, from less democratic political processes should be condemned.

Derek Bambauer: Your methodology is appealing because it looks at ends and not means. I would be interested to hear more — what values should we prioritize in assessing censorship? Do they derive from American thinking, or are they more universal? I worry that an approach grounded explicitly in U.S. values is likely to draw resistance from outside actors whose help we need. Other countries are often reluctant to appear to yield to overtly American standards, whether due to conflicts with their own values or because their governments fear being painted as lackeys. Yet, a universal approach risks weakening core commitments as the price of achieving consensus. An approach driven by one country’s ideas about information seems impractical.

Substance-based decisions call upon tech firms to make very fine-grained decisions about what is inflammatory and what is simply critical. Should YouTube, for instance, accede to demands from Iran’s government to take down video of Neda Salehi Agha Soltan’s shooting on grounds it could inflame protests in that country? The line between inflammatory material and content that critiques a government is hard to draw.

The British and the American colonists certainly disagreed about Thomas Paine’s writings, for the same reasons that Burma restricts information from Aung San Suu Kyi and the National League for Democracy. Here, the process-based analysis may provide clearer rules for firms, letting them make faster and cheaper decisions (as well as, we hope, better ones). Iran’s decision-making methods for filtering are arbitrary, lack opportunities for participation, and lack transparency; YouTube should reject any request to take down the video of Neda’s shooting out of hand.

Richard Epstein: I remain a universalist on matters of morals and ethics. My training in Roman law has convinced me that just social relations do not differ in fundamental ways across societies. What do differ are the formalities and institutions used to enforce these bedrock principles. The U.S. Constitution is relatively successful because it accepts the universal standards of sanctity of property and contract that require government control of aggression and fraud. These values are not distinctively American but are found in both Roman and English systems across the globe. Nor did the American founders regard these principles as distinctively American. They were happy to learn and borrow from others.