BROOKE GLADSTONE:
This is On the Media. I'm Brooke Gladstone.
BOB GARFIELD:
And I'm Bob Garfield. If any one situation has come to symbolize the promise and pitfalls of Internet access, it's the ongoing battles between China and American Internet service providers. Companies like Google, Yahoo and Microsoft have found the Chinese market irresistible but have lost the goodwill of much of the world for complying with Chinese law, which forces them to turn over information about their users.

That practice resulted this week in a lawsuit brought against Yahoo on behalf of a jailed Chinese political prisoner who claims he was apprehended and tortured after Yahoo identified him.

The suit employs a novel legal approach, but Internet law monitors like Jonathan Zittrain, who holds the chair in Internet governance and regulation at Oxford University, argue that winning this lawsuit may be beside the point.
JONATHAN ZITTRAIN:
My guess is that this will be not an easy case to bring and that it's not being brought in the hopes of truly recovering damages but, instead, to be able to make a point both to the Chinese government and, most especially, to Yahoo.
BOB GARFIELD:
Since Nixon, engaging with China, and the idea of gradually drawing it towards the West, has always been politically controversial in the United States. And companies like Google and Yahoo and Microsoft have always made basically the same claims – that the advantages of having any kind of Internet activity in China far outweigh the disadvantages of dealing, however cravenly, with an authoritarian regime.
JONATHAN ZITTRAIN:
That's right. At the time that Google went into China, in January of 2006, they really did say they basically made an evil scale and decided that it would be less evil to go in and bring some of the benefits of modern information technology, even understanding there'd be tradeoffs, such as, in Google's case, censorship, than to stay away entirely.

The other thing you hear from companies are that this is essentially above their pay grade; that they're providing basic services in a state, and when the authorities come to them – in Yahoo's case they would say with a document that says, please turn over the following information on this person – they're not in a position to second-guess why the government might want that information. That's what Yahoo has said.
BOB GARFIELD:
Now, Amnesty International and Reporters without Borders, and now the World Organization for Human Rights, have made it quite clear that, you know, they just don't buy those arguments. Do you think that they're being too absolutist?
JONATHAN ZITTRAIN:
Well, I think it's actually a well-played role for Amnesty International and Reporters Without Borders and other human rights organizations to put the heat that they're putting on, so that in the past 12 months or so we've seen these companies, and, in particular, Microsoft, Google and Yahoo, engaging in a process so that they're not making decisions about where the line should be in an ad hoc way.

They've actually been in informal discussions with each other, with academics, including myself and some of my colleagues, and with some of these human rights organizations, to figure out what they can do in a structured way so that, on balance, the kind of role they're playing in a place like China turns out to be a positive one.
BOB GARFIELD:
What about China itself? China really is the one that wields the power here, no? They can kick any of these guys out, and that's an outcome that none of these companies can afford to live with.
JONATHAN ZITTRAIN:
Well, in the first instance, that's true, and it may even come to the point where some of these companies, under particular circumstances, decide that they're ready to cut loose their commercial ties and simply forego the market for a while.

But short of that, I think there's actually a role that maybe even, say, the U.S. government can play. In the House of Representatives there's been some draft legislation floating around for two sessions now – I think the most recent incarnation is the Global Online Freedom Act – and, among other provisions, it gives companies both the mandate, and therefore the cover, to avoid being complicit with regimes that are seeking information of this sort.

I don't think there's a sense yet that there's momentum for that act to pass, but in the meantime I do think we've seen some movement by some Internet companies to store the data in places, or simply not to collect it at all, or to alert the people using the service that the data may well be compromised, so that you're not in a position of assisting the regime in the manner that this suit says they are.
BOB GARFIELD:
Now, Jonathan, I do [LAUGHS] understand that you're not clairvoyant, but I would like you to look at the future, just maybe three or four years down the road, and tell me how you think this case and the overarching issue will be resolved.
JONATHAN ZITTRAIN:
Well, I think over the next few years, the real action will shift from Internet service providers and online service providers, like Yahoo, quite possibly to the makers of devices that we use to access the Internet. So it would be very worthwhile to keep an eye on companies like RIM – that make BlackBerry – where, as the BlackBerry is being introduced, say, in a place like China, those kinds of devices, the BlackBerrys, the mobile phones, even certain Internet applications, like Skype, the government sees an opportunity to shape the way they work so that surveillance or censorship can be built right in.
BOB GARFIELD:
Jonathan, thanks very much for joining us.
JONATHAN ZITTRAIN:
Thanks so much.
BOB GARFIELD:
Jonathan Zittrain is cofounder of the Open Net Initiative, a collaboration among researchers at Oxford and Cambridge, Harvard Law School and the University of Toronto.