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Obama should back up Google with more than rhetoric: The US should challenge China's "firewall" before the WTO.

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By Peter Scheer

The US government is not powerless to influence China's policies concerning censorship of the internet. This week, as Google has taken extraordinary steps--bordering on corporate civil disobedience--to challenge China's stranglehold on information, the Obama administration's response has been a study in timidity. In reality, however, the administration is not without options.

One option is to file a complaint with the World Trade Organization, contesting China's internet censorship as a breach of the international trade rules to which China, as a new WTO member, is subject. The argument is that China's "Great Firewall"--a system of filters and bottlenecks that effectively shutters the country within its own intranet--is an illegal restraint on international trade because it bars foreign companies from competing, via the internet, in the vast Chinese market.

To understand how this strategy would help Google (and Yahoo, eBay and myriad other US internet companies that have lived to regret their physical entry into the China market), it's important to understand that Google did not freely choose to build a vast physical presence---complete with office buildings, server farms and thousands of local employees---inside China. Google would have much preferred to compete in China with a Chinese language version of its search service operating from servers and offices in the US, Taiwan, Japan or elsewhere---safely beyond China's borders.

But Google didn't have that choice because China's firewall degrades the performance of websites based outside the country. Non-Chinese websites take extra seconds to load, relative to competing sites inside the firewall. In the online world (and particularly in the highly competitive Chinese market), a few seconds mights as well be a few hours. The websites of Google's indigenous Chinese competitors (Baidu, Sina and others) loaded instantly. Google was toast.

As much as any other factor, this performance deficit, a direct consequence of the firewall, forced Google to physically relocate its Chinese language search service inside China, where government bureaucrats could compel Google, upon penalty of withdrawal of its operating license (or worse!), to self-censor. Google knew the risks of its move, and it deliberately and conspicuously sought to protect its customers' data files by keeping OFFshore the Chinese versions of its email business (gmail), its blogging service and YouTube.

China's firewall thus stands as a barrier to international trade. It halts commerce at China's borders just as surely and effectively as a regulation requiring perishable agricultural exports from the US to sit for days on China's docks prior to transhipment to internal distribution facilities. Whether it is a barrier that violates international treaties is for administration lawyers to argue to the WTO. The First Amendment Coalition, a nonprofit organization (of which I am executive director) has already presented detailed legal briefs on this matter to the US Trade Representative.

The advantages of a WTO strategy are considerable. WTO sanctions have teeth, and China in other trade disputes has shown it will abide by WTO rulings it disagrees with (so that it can use the WTO, to its benefit, in other matters). For the US government, playing the WTO card also demonstrates seriousness about curbing Chinese censorship, while confining the dispute to an international adjudicative body and avoiding a direct confrontation with Chinese government leaders.

Google's refusal to censor itself and its threat to quit the China market create an opportunity to change China's policy for the better. It is an opportunity that the Obama administration should not miss.
Peter Scheer, a lawyer, is executive director of the First Amendment Coalition, a nonprofit free speech organization that has petitioned the US Trade Representative to invoke WTO treaties to curtail China's censorship of the internet.

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