Don Marti

Thu 12 Jan 2006 05:49:26 PM PST

Censorship and jurisdiction shopping

Rebecca MacKinnon points out an encouraging Hiawatha Bray piece on Congressional hearings about the PRC net censorship issue.

I run a mailing list, and I have a pretty detailed set of rules about what I do and don't let people use my list server for. So, clearly, the answer to the censorship problem isn't the Your ToS Must Allow Falun Gong Posts In The Bunny Care Forum Act Of 2006. But it's just as clear that companies, given half a chance, will jurisdiction-shop and take a box that serves US-origin Chinese-language content to US readers and put it in the PRC when it suits them.

The big picture isn't about whether or not a company has to obey a given censorship order. It's about whether the company had to put the content where it's subject to the order in the first place. (Register your oil tanker in Liberia, open your bank account in the Bahamas, install your web server in the People's Republic of China! It's the American Way!)

So when the US Congress looks at the issue, the main issue has to be giving companies some disincentive to host content in censorable jurisdictions, to balance out the incentives they have now.

Thankfully, it's still a free country, and our Congress doesn't have a censorship tool in its toolbox. Here are some that it does have.

"Content subject to foreign censorship may not be copyrighted in the USA."

"Expenses related to buying and maintaining any computer systems subject to foreign censorship are not tax-deductible."

"Public companies must maintain archival copies of all censored content, and provide a copy to any shareholder upon request."