US-based companies could be held liable for helping officials in other countries censor the Internet, if a bill proposed by House Representative Chris Smith (R-NJ) is approved. Smith recently announced his plans to push the Global Online Freedom Act (HR 275) to the House floor for voting after having lobbied human rights organization Reporters Without Borders for support. Among other things, the Global Online Freedom Act will bar US companies from disclosing personally-identifiable information about a user, except for "legitimate foreign law enforcement purposes."

"American high-tech firms have produced the technology and know-how that has led to a modern-day information revolution," Smith said in a statement. "Sadly, however, instead of working to allow everyone to benefit from these advancements, these same high-tech firms are colluding with dictators and tyrannical regimes such as China to suppress human rights information and punish pro-democracy advocates."

Among other things, the Act appears to be a direct response to the furor over Yahoo's involvement in outing a number of Chinese dissidents to the government, resulting in their arrest and imprisonment. At least two Chinese pro-Democracy advocates have filed lawsuits against Yahoo for turning over their e-mails to the government, but Yahoo has said repeatedly that it simply complied with the requests of local law enforcement and was not aware of the nature of the investigations.

Yahoo was embarrassed by human rights group Dui Hua soon thereafter after the group published a translation of the Chinese government's request for one dissident's information that clearly stated the nature of the investigation. This infuriated members of Congress, as it appeared to show that Yahoo had lied about what it knew. Yahoo apologized for the "misunderstanding," but Congress remained unimpressed.



Rep. Chris Smith

The Global Online Freedom Act would not only prevent companies like Yahoo from giving up the goods to totalitarian regimes, but would also prohibit US-based Internet companies from blocking online content from US government or government-financed web sites in other countries. When it comes to non-government sites, the Act would require companies to disclose to the newly-created Office of Global Internet Freedom the terms that they do filter, and for the Office to continually monitor these filtered terms.

If the companies violate any of these new restrictions, they could face civil and criminal penalties of up to $2 million, and aggrieved citizens (those who have suffered from the companies' violations, like the Chinese dissidents discussed above) are free to pursue punitive damages and other legal remedies from the offenders.

There are just a couple of catches that make this bill not quite as great as Smith and the handful of human rights groups that support it make it out to be. For one, the term "legitimate law enforcement" is extremely vague, and is left up to the US Department of Justice to decided on a case-by-case basis. If complying with the requests of law enforcement officials to turn over information on what they consider illegal in specific countries does not count as legitimate, then what does, exactly?

Secondly, you guessed it—the bill has a convenient exit plan for anyone who tries to apply its rules to the United States. The President would have the authority to waive the provisions of the Act as long as "the important national interest of the United States requires the exercise of such waiver authority." As TechDirt points out, the US has done its own share of requesting data for questionable purposes, such as when it subpoenaed Google for 1 million random web addresses and all search records from an unspecified one-week period. It wouldn't be surprising to see the US waive the Act in the name of national security at the drop of the hat, so it seems dubious that our government would be take on the responsibility of holding others to these standards.