Another legal affairs article has gotten me thinking. One of these days, I should really subscribe to the actual print version or something, but in the mean time, Derek Bambauer has written an interesting missive on regulating software and technology sales to China, and by implication, other repressive regimes.
The timing of the article aside, Bambauer focuses on two primary issues.
To begin, I want to examine (2), since it’s the most oft-cited yet lease compelling condemnation the layperson tends to make of companies like Cisco, who does $500 million of business per year with the Chinese government. One of the examples cited by Bambauer is Burma, where the government uses US-produced firewall technology to prevent citizens from using encrypted internet e-mail sites, like Hotmail or Gmail, making it substantially easier for the powers that be to monitor and censor citizens’ communications.
Put by Bambauer, “Market freedom does not necessarily lead to personal freedom. We must at times limit the first to safeguard the second; the right to sell must sometimes yield to protect the right to speak.”
The simple question, in these circumstances, is just: is the alternative a production of additional freedom? That is, if this software wasn’t sold to Burma or China, which is more likely: that the oppressive autocracy throws up its hands and lets it go, or the bad men decide to either make accessing the internet at all much more difficult, or they make an overly-inclusive filter that is less well designed? Personally, it seems likely that a country like Burma would have no compunction about banning private use of the net. On balance, it seems as if the products, while stifling some measure of expression, are generally going to engender a more informed country. The article itself references Zheng, who managed to use the internet to report on conditions in China to the western world. Granted, he was later sentenced to seven years imprisonment for this and other acts, but without the (albeit limited) transparency the net provides, does anyone doubt he would have received a harsher sentence?
The more interesting, and complex, issue is (1). Bernbaum tries to draw distinctions between so-called “dual-use” technologies, items that could be used either for good or for bad, and ‘useless’ items that can only be used for harm, such as thumbscrews or, one presumes, an iron maiden. Or Iron Maiden CD. He presumes that there can be no argument about the prohibiting the sale of strictly ‘harmful’ items, without offering comment – so I won’t go too much into it except to say that, unless the technology in question is particularly pernicious (ie: fissionable material), or is widely available, it’s not necessarily a closed question as to whether or not the US needs to ban it. Take oil, for example. Given that a human-rights violating country (we’ll call it “Korth Norea”) is going to purchase oil, would we prefer they be doing so from us, or would we prefer they be doing so from Iran, possibly exchanging weapons in the latter instance? Having competing countries rely on us makes influencing them significantly easier, so if the ultimate goal is a reduction in abuses, taking the moral stand that we need to prevent abuses while facilitating them is sort of bizarre.
When it comes to dual-use items, however, he proposes a fix:
First, export licenses from the U.S. government should be required for all dual-use items and denied when companies know or should know that the items will be used to violate human rights, as defined in the Universal Declaration of Human Rights or in U.S. foreign policy. For example, selling software that enables the Burmese government to monitor and censor e-mail and web traffic should be illegal, given Burma's appalling human rights record. The law could require that a company demonstrate through the licensing process that it has made a good faith effort to determine who will ultimately employ a dual-use item and for what purpose. Violations of these requirements would carry substantial penalties, perhaps including criminal liability for the executives who authorized an offending sale.
Putting aside for a moment the somewhat obvious fact that nearly anything internet or production related is going to fall under this category, and such a law would be a de facto destruction of any understood freedom of commerce, would this actually have the desired effect? It seems that, if I were a company like Cisco, intent on maximizing my market share via security tools, and this sort of law were in effect, I would just focus my R&D on maximizing modularity within my software. Rather than narrowly tailoring the desires of a customer, knowing that if the government does not approve of those uses, I’ll make it easier for them to do it. Bambauer even says,
”…criminal penalties should apply to a seller of dual-use goods who makes it easier for the buyer to use them for illicit purposes. If Saudi Arabia's Internet Services Unit, which censors information offered online in the country, adds its own list of political opposition websites to the "block list" included with SmartFilter software, this may be difficult for the manufacturer, Secure Computing, to control. But the company should not be allowed to make the Saudi unit's task easier by, say, including in the software a "Saudi Arabian political dissent" category that would automatically block any website that promoted opposition to the Saudi government.”
What use would this have? Great, it takes them roughly three extra hours after installing – and makes it much, much easier for the government to alter it in response to new groups or new dissents in the future. One of the biggest advantages rebelling groups have over the government is the pace at which bureaucracy tends to function.
Moreover, this gets the US government in the somewhat sticky situation of determining the old “terrorist/freedom fighter” thing. Many ‘dissent’ groups legitimately do threaten the governments’ power, and have the stated goal of ending the contemporary regime. So some countries want security software to stamp out Mujahideen, and some want it to crush Falun Gong. Extreme examples, but illustrative nonetheless – the US has gotten in trouble in the past for exactly this sort of moral duck/duck/goose. Even coupled with the good faith requirement, is there any belief that the Chinese government is really going to be prevented from either developing their own tools (as they have done in supplement to Cisco), or acquiring the software illegally, if necessary? It wouldn’t exactly be a stretch for China to set up a dummy company, purchase the software, and then alter it for their own needs. I mean, as much as I’m sure the US would economically punish the Chinese or international bodies would try to enforce copyright law, I don’t see any specific reason why this wouldn’t work.
And, yes, let me just say for the record: depriving the domestic economy of income without any tangible increase in even the likelihood of a reduction of rights abuses abroad is just silly. One of the first thing any debater learns is that, in the abstract, practical benefits like income are less rhetorically effective by far than talking about the sweeping need for ensuring the liberties of the downtrodden and all that. But in real terms, the practical enforcement and enjoyment of these rights actually requires material support.
Finally, I’d like to note that the only practices we’ve yet devised that seem to actually promote change in oppressed countries have been war and trade; and war hardly comes without its drawbacks. Dictators don’t willingly give up power, and the best we can do is engender the circumstances that tend to bring about their downfall. Unilateral sanctions, especially when those sanctions are partial and vague, as in this case, are not only ineffective in their practical outcome, but fail to even amount to a moral victory.
The logical outcome of these sorts of regulations is going to be the government of the United States restricting its own companies and its own citizens from using their property in a way that doesn’t affect anyone within the delegated province of authority over which that government has power, in an effort to benefit rights. It’s perverse. If such a right did exist, the biggest benefit we give to other nations is our consumption. As if spending $150 billion in the Chinese economy each year is a negligible contribution to their regime, but filters are suddenly a moral hazard we cannot endure. Yet, as with the internet, the short term malice the government has wrought on its citizenry with the funds garnered from this exchange have sown the seeds of Chinese liberalization, and the capital has made the day-to-day life of a Chinese citizen measurably better.
Is China more Americanized now than they were thirty years ago, when they reversed their isolationist position towards the US? Without question. So why not continue the process, stop isolating autocracies and inciting backlash, and allow the burgeoning middle class in these places to undermine the power of the government by extracting themselves from the status of mendicants?
As a rule, pointless moral high ground seeking tends to make the seeker feel better, but doesn’t accomplish actual change. Doing the moral thing is often difficult, as I acknowledge watching human rights abuses taking place might be, but moral posturing is not the same as taking a real stand, and doing what will help the abused more than our own superficial conscience.
cranked out at 8:30 AM | |
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