We’re Number Two

It’s a when-not-if announcement:  China Passes U.S. as World’s Biggest Energy Consumer:

[A]ccording to new data from the International Energy Agency . . .  whose forecasts are generally regarded as bellwether indicators for the energy industry, China devoured 2,252 million tons of oil equivalent last year, or about 4% more than the U.S., which burned through 2,170 million tons of oil equivalent. The oil-equivalent metric represents all forms of energy consumed, including crude oil, nuclear, coal, natural gas and renewable sources such as hydropower.

The linked Wall Street Journal article notes that then years ago, China’s energy consumption was half that of the U.S.  China passed the U.S. in a related category three years ago, when its reliance on coal-fired electrical plants made it “the world’s largest emitter of carbon dioxide emissions and other greenhouse gases.”  Still, head-to-head, we are far greater energy hogs:  “the average American burn[s] five times as much energy annually as the average Chinese citizen.”  We also consume far more oil, 19 million barrels a day compare to second-place China’s 9.2 million barrels a day.  By 2025 China is expected to add power generation capacity of 1,000 gigawatts, which is equal to the entire current power-generation capacity of the U.S.

Maybe I’m wrong, but I think the implications of these facts, inevitable as they may be, are more significant to our national security than Afghanistan, Iraq, the BP oil spill, and immigration–and that how the U.S. responds to China’s energy-consumption dominance will shape how we respond to all of these challenges.

If a Sapling is Cut Down as Soon as it’s Planted . . .

One form of Chinese censorship is to block searches for “sensitive info” such as Tiananmen and Falun Gong. If a web post is made in a forest and no one can find it, does it convey information? Another is to scour domestic websites for sensitive info such as Tiananmen, Falung Gong, –and Google, and instruct webmasters to delete it.  Around the time that Google stopped censoring Chinese search results and began referring Chinese searches to its Hong Kong servers

[]he Chinese State Council Information Office . . . ordered all news sites to “carefully manage the information in exchanges, comments and other interactive sessions” and “clean up text, images and sound and videos which support Google, dedicate flowers to Google, ask Google to stay, cheer for Google and others that have a different tune from government policy.”

Playing the China Card

In a speech a few weeks ago Hillary Clinton criticized China and other nations for their Internet censorship, warning that what she called an “information curtain” might prevent the citizens of such countries from the free flow of information.  Her speech came shortly after Google reported it was the victim of computer hacking that it believed originated in China, announced that it would no longer censor references to the Tiananmen Square Massacre and other taboo topics from its Chinese search engine, and said it might withdraw from China altogether.  Clinton said “[i]n an interconnected world, an attack on one nation’s networks can be an attack on all.  Countries or individuals that engage in cyber attacks should face consequences and international condemnation.”  China responded the next day, saying “the Chinese Internet is open” and the U.S. should “respect the truth and to stop using the so-called Internet freedom question to level baseless accusations.”  Most interesting to me was China’s characterization of “[t]he American demand for an unfettered Internet” as “information imperialism:”  “[t]he U.S. campaign for uncensored and free flow of information on an unrestricted Internet is a disguised attempt to impose its values on other cultures in the name of democracy.”

One might dismiss China’s rhetoric but this diplomatic fray involves a fundamental problem of Internet governance, which is whose law should apply to resolve Internet disputes? In the U.S. we often regard First Amendment rights to speech, press, assembly, religion, and petition as the manifestation of natural human rights that are fundamental to human dignity and liberty.  (That is, we often talk about First Amendment rights in such terms.  In practice we are woefully ignorant of the scope of legal protection these rights.  Legislatures, with little apparent awareness, pass laws that violate the First Amendment, citizens urge legal sanctions against unpopular ideas, and religious fundamentalists denounce non-believers.)  We believe benighted citizens of nations without free-speech traditions await liberation.  That may certainly be true, but it is not inevitably, universally true.  Imagining how we would react as a nation if another nation prosyletized about its superior beliefs can help one understand China’s reference to information imperialism.  Indeed France has been saying much the same thing for years about the effect of American language and culture on French culture.  I am not defending moral relativism.  I believe that transparency and the free flow of information are better politically, socially, economically, and ethically than secrecy and censorship, but we cannot impose those values and expect cultures in which they have no foothold to embrace them at once.

Green Dam

Despite domestic and international opposition (e.g. “China Faces Criticism Over New Software Censor“) China is proceeding with its requirement that the Green Dam Youth Escort content-filtering software be installed on, or included on a compact disc accompanying the purchase of, all new computers sold in the country as of July 1.  The name “Green Dam Youth Escort” conjures an image of a responsible elder guiding a youngster through a landscape dotted with levees holding back reservoirs of Internet yuckiness–or perhaps an image of an escort service that caters to minors.  China’s ostensible purpose is to stem exposure to violent and pornographic content.  Some critics fear the software is a vehicle for greater government monitoring of and control over dissident or other politically-unacceptable speech.  Manufacturers are concerned the new software won’t play nice with operating systems and other software.  The Beijing News reported the software is both over- and under-inclusive, blocking content it should permit and permitting content it should block.  Computer scientists have said the software contains flaws that third parties could exploit.  China, nevertheless, continues to say that July 1 compliance deadline is firm.

I’m following this story because it is interesting on its merits and because of what it says about the state of Internet law.  I’m pointing my Internet law course in a new direction for the coming academic year, reducing its emphasis on theories of regulation.  Current events, like this story, reflect powerful forces contending over the future of the Internet.  I want students to understand these forces and what is at stake.  “Code is law” continues to be an important message, but the playing field of 2009 is far more complex than that of a decade ago.

Trade Polls

A friend sent me a link to a compendium of polls an American views of the economy and foreign trade: http://www.pollingreport.com/trade.htm. There’s a lot of information but even a brief look reveals how we perceive our role in the world economy. Many Americans fear China, free trade, and global competition and would like to erect a wall, dig a moat, and raise the drawbridge on the rest of the world.

Hacking the Great Firewall

In Who Controls the Internet Jack Goldsmith and Tim Wu describe the Internet in China as a “national intranet, ” an internal network with carefully-monitored connectivity to the rest of the world. Chinese refer to it these controls as the “Great Firewall of China” and, as described in this story, are starting to rebel. Opposition to government censorship is manifested in lawsuits–the article mentions a breach of contract suit against China Telecom “because of the service provider’s unacknowledged restrictions on Web content–, technological work-arounds, and a growing network of activists who share tips on evading network controls, oppose censorship policies, and support one another’s protests. In the predictable never-ending escalation of tactics between censors and hackers the Chinese government is trying to ratchet up its control but according to activist Yuan Mingli “[t]hat’s impossible, fundamentally, because people’s hearts have changed . . . [the system will] “eventually break down precisely because China cannot be completely disconnected to the outside world anymore.”

China and the Internet

China comes to mind when one considers how geography has extended its dominion over the supposedly borderless Internet of the early 1990s. Two recent articles together make the point that Chinese control over the Internet is pervasive, but not as infallible as commonly believed. The first from E-Commerce News highlights China’s effort to control Internet content: China employs 14 governmental agencies plus additional outside companies to monitor the Internet, jails dissidents for long prison terms, executes thousands of people every year, and conditions access to Chinese markets on cooperation with its pervasive control. Complicity with Chinese abuse of human rights may make companies such as Yahoo! and Google queasy, but “[w]ith some 1.3 billion people in its emerging economy, the lure of China’s market is compelling.” However, according to this article from BBC News, China’s national firewall is not as monolithic as we might think. Computer science researchers from the U.S. examined how far into the Chinese network messages with banned terms such as Tienanmen Square and Falun Gong could penetrate before Chinese filters spotted the terms and terminated their transmission. “The researchers found that the blocking did not happen at the edge of China’s network but often was done when the packets of loaded data had penetrated deep inside . . . On about 28% of the paths into China’s net tested by the researchers, blocking failed altogether suggesting that web users would browse unencumbered at least some of the time.” The filters functioned least effectively during periods of heavy web usage.

China’s Information Duality

A decade ago a common belief was that the Internet would inevitably free societies from governmental regulation, John Perry Barlow’s “weary giants of flesh and steel.” Times change. In chapter 6 of Who Controls the Internet? Jack Goldsmith and Tim Wu describe how China has created what is, in essence, a national intranet, “an Internet that is free enough to support and maintain the world’s fastest-growing economy, and yet closed enough to tamp down political threats to its monopoly on power.” A network that provides market-sensitive information on German fixed-income rate fluctuations and bars information on Falun Gong is not supposed to be possible, information wanting to be free* and all that, but there you have it. Perhaps the tensions inherent in such a network are irresistibly fatal, yet meanwhile China continues to pursue information-control duality. It was widely-reported this week that China has barred licensing of new Internet cafes for the rest of the year to allow investigation of existing cafes’ compliance with licensing and customer-registration requirements and to “clean up ‘Internet culture.'”

*If Wikipedia is an appropriate source for anything, it is for a cyberworld quotation such as this.

Keeping the Moat Up

Earlier this week the China Internet Network Information Center issued its annual report, estimating China had 137 million Internet users aged 6 or older who spend at least one hour a week online. That’s about ten percent of China’s population and represents growth of over 23% compared to 2005’s numbers. The next day Chinese Premier Hu Jintao, in a speech to a Communist Party Internet study group, urged creation of more content “that is in good taste” and promotes Chinese culture. The goal, he said, is to “promote civilized running and use of the Internet and purify the Internet environment.” (See stories here and here.)

“Purify”–that’s a loaded word to western ears. China maintains strict control over the Internet within its borders, blocking access to certain foreign websites and running what is, in essence, an intranet. In the words of Jack Goldsmith and Tim Wu in Who Controls the Internet, “physically, the Internet within China looks more and more like a giant office network, centralized by design.” What is paradoxical, from a western perspective, is that China’s political control goes hand-in-hand with dynamic utilization of the Chinese network as a platform for e-commerce. Businesses, online and offline, must accommodate–or, at least, not alienate–China’s control over political expression.

In light of that, the Yahoo story linked above ads an interesting note: Microsoft, Google, Yahoo, and Vodafone Group recently agreed with the Berkman Center for Internet & Society, the EFF, Reporters Without Borders, and other organizations to establish a Code of Conduct to promote freedom of expression and privacy rights around the globe. It is unclear how participation in the Chinese market will square with this code’s objectives.

For posts on global press freedom see here and here

Is a Hug Evidence of Bad Faith?

The Associated Press carried a recent cybersquatting article with a title that tells the whole story: Woman willing to give up Yao Ming’ domain address – for a price. The young Chinese woman’s price is “a hug and an autograph.” She says she registered the domain from China Internet Network Information Center (CNNIC) to protect it from “those who want to take advantage.” CNNIC said it would cancel the registration if Yao could prove he suffered economic harm.

If Yao Ming cares to assert his right to the name, he is entitled to get it back only if he has a case under ICANN’s Uniform Domain Name Dispute Resolution Policy. The UDRP applies to all domain name registrars. CNNIC cannot arbitrarily decide to give the domain name to Yao just on a showing of economic harm unless he can prove the other elements of a valid UDRP cybersquatting claim. The facts satisfy the first two prongs of the UDRP test: the domain name is identical or confusingly similar to a mark in which he has rights and the registrant does not appear to have any rights or legitimate interests in the domain name. Whether the young woman’s registration and use is in bad faith is more problematic. It would be bad faith if her price were $10,000 and four court side Houston Rockets season tickets but a hug and autograph, a devoted fan’s sweet payback, are harder to characterize as “bad faith.” Still, one could construe any condition imposed on release of the name to be “selling the name at a profit” to the mark owner, which is enough to prove bad faith under the UDRP.

This is how the world looks when I’m preparing the coming semester’s courses.