Free Speech Group Petitions U.S. Trade Representative to File WTO Complaint to End Chinese Internet

The California First Amendment Coalition (CFAC), a free speech and government transparency group, has launched an initiative to use international trade laws to force the government of China to end its censorship of the Internet and to remove its barriers to U.S. companies supplying goods and services to the Chinese market via the Internet.

In a presentation to the Office of the U.S. Trade Representative (USTR) in Washington, D.C., CFAC and its lawyers petitioned for the filing of a complaint with the World Trade Organization (WTO), of which China became a member in 2001. The free speech group contends that China's censorship of the Internet--which has been described as the most sophisticated and effective system of censorship in the world-- violates China's obligations under agreements that it signed when it joined the WTO.

"China's censorship of the Internet, while fundamentally an issue of free speech and individual liberty, is also a significant barrier to U.S.-China commerce and, therefore, very much a trade issue," said CFAC executive director Peter Scheer. "In infringing the rights of its 1.2 billion citizens, China is also infringing the rights of American companies to sell goods and services to consumers in China, via the Internet," he said.

Among the agreements that China is alleged to have breached are the General Agreement on Tariffs and Trade (GATT), covering trade in goods, and the General Agreement on Trade in Services (GATS). The WTO has the authority to decide claims brought by member-nations alleging violations of the GATT and GATS agreements and to impose trade sanctions to enforce compliance. CFAC's initiative is, in effect, an effort to persuade USTR to file such a claim with the WTO, targeting China's censorship of the Internet and corresponding market access barriers.

"United States rights under the WTO include rights of market access and the right to take full advantage of U.S. strength in the service economy sector. U.S. Internet companies and U.S. companies that sell goods over the internet should have full access to the Chinese economy," said Gilbert Kaplan, an international trade partner at the law firm of King & Spalding, which represents the CFAC.

Whether the Internet is covered by the GATT and GATS agreements has not been addressed by the WTO. The idea of using the agreements to curb sovereign governments' censorship of the Internet was first floated in a 2006 law review article by Timothy Wu, a law professor at Columbia Law School, who is a consultant to the CFAC initiative.

"China is the second biggest Internet market, and will soon be the biggest," Scheer said. "While U.S. Internet companies have a strong interest in dismantling censorship as a barrier to that huge market, they can't risk taking on the Chinese government," Scheer said. "The likelihood of reprisals is too high."

CFAC is represented by Gilbert Kaplan, Steve Orava and other lawyers specializing in international trade law in the Washington, D.C. office of King & Spalding LLP. CFAC also is supported in this initiative by a consortium of organizations, including the UC Berkeley Graduate School of Journalism, the Center for Internet and Society at Stanford Law School, the National Freedom of Information Coalition, and the China Internet Project at UC Berkeley, among others.

Based in San Rafael, Calif., CFAC is a nonprofit organization focused on free speech and open-government rights. CFAC's activities include educational and informational programs, participation in "test case" litigation and oversight of legislation affecting free speech. CFAC's members are newspapers and other news organizations, libraries, civic organizations, freelance journalists, bloggers, and ordinary individuals seeking help in asserting rights of citizenship. CFAC was founded in 1988.

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