White House opposition likely dooms anti-China Internet bill

The text of the letter that the U.S. Justice Department sent the sponsors of the Global Online Freedom Act is now available, and it shows why the bill probably can't be salvaged.

Earlier this week we told you about the Bush administration opposing a bill that would slap extensive regulations on technology companies doing business in China and other nations deemed to be unreasonably "Internet-restricting."

That is likely to doom the legislation, which was written by Republican Rep. Chris Smith and enjoys the support of journalist and human rights groups.

We've now posted a copy of the U.S. Department of Justice's letter to Capitol Hill opposing the so-called Global Online Freedom Act. One key section of the proposed law limits the ability of U.S. companies to place servers with customer data in "restricting" nations.

(My colleague Charles Cooper and I also talked about the bill on our podcast, if you're interested.)

Some of the points that the Justice Department makes in its letter to Rep. Howard Berman, the Democratic chairman of the House Foreign Affairs Committee, include:

• The bill talks about nations restricting Internet posting of "the "peaceful political, religious or ideological opinion or belief"--which would apply to much of western Europe, where making peaceful, political statements about the Holocaust that the government deems untrue can be a crime. (This is what ensnared Ernst Zundel, the neo-Nazi sympathizer who is serving a five-year prison term in Germany.)

• Foreign nations could retaliate against the United States by ceasing to cooperate with law enforcement requests for information. "This could have the unintended effect of creating 'cyberhavens' through which terrorists and other criminals can route their communications, knowing that the data will not be turned over to the United States," the letter says.

• American businesses could face retaliation directed against them as well by countries "sensitive to being perceived as 'second-class'" nations.

• In addition, American businesses could be squeezed into the impossible position of trying to comply with two contradictory laws at once. "Even low-level data handlers...would be forced to choose between following the law of their own country and U.S. law."

The U.S. State Department also opposes it; here's an excerpt from its letter:

The Administration shares the view reflected in H.R. 275, the Global Online Freedom Act, that freedom of expression on the Internet must be protected globally. However, the bill's key provisions--calling for labeling Internet-restricting countries and penalizing certain affected U.S. firms in such countries--are likely to undermine U.S. diplomatic efforts and to interfere unjustifiably with such U.S. firms' commercial engagement in those countries. For these reasons, the Administration would oppose the bill, as reported to the House.

Taken together, these points raised by the pair of letters are not minor ones. They're carefully aimed at the heart of the bill. They appear to make it impossible to salvage its current approach, which tries to force U.S. Internet companies to accomplish what even the State Department has been unable to do.

No wonder that Berman told us through a spokesman that he wants to "carefully study" the "ramifications" of this bill--a response that glossed over the fact that his committee painstakingly assembled a formal report and voted to approve it months ago. Still, better late than never.

This legislative exercise shows that it's easy to throw around insults, as the late Tom Lantos liked to do when executives visited from Silicon Valley. It's easy to speechify about morality. But actually writing legislation that makes sense--and complies with the demands of the U.S. Constitution, which does not seem to give Congress the authority to legislation in this area--is far more difficult.

 

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