Open Letter to Google: Our Concerns Over “Project Dragonfly…


To: Sundar Pichai
Chief Executive Officer, Google

Dear Sundar Pichai,

I am writing from PEN America, the writers’ group dedicated to literature and free expression. As part of our mandate to cherish and safeguard the liberties that make free expression possible, we have been engaged in research and advocacy on the state of free expression in China for over a decade. Working in concert with colleague PEN organizations around the world, we have spotlighted the cases of individual dissidents and fought—at times successfully—for their freedom, carried out research and reporting on a broad array of policy issues, supported writers and artists under pressure in China, and engaged with an array of governments and multilateral institutions. Our research includes the March 2018 report, Forbidden Feeds: Government Controls on Social Media in China, an exhaustive analysis of the contemporary state of digital rights in China with a focus on social media and other internet service providers.

Given our work and research, we were concerned to learn that Google is pursuing the possibility of launching several major services for use within the People’s Republic of China (PRC), including, as we understand it, a filtered search engine, currently named “Dragonfly”; a filtered news app for Chinese markets; and a Google cloud storage service to be operated within China as a joint venture with a Chinese domestic company.

Based on our research and analysis, we have serious concerns about the ramifications of services proposed for launch within China. We understand that plans for these potential services have not been finalized, and we are aware of your own comments that the search engine in particular remains in an “exploration phase.” Additionally, we recognize that Google has vast experience in—and resources devoted to—acting ethically within difficult national contexts. We hope and trust that any final decisions about plans for entry into the Chinese market will be informed by due consideration for the serious human rights issues implicated, as well as by the values that have long been associated with the Google brand.

In light of our work on these issues, we feel compelled to express our concern that the current legal and regulatory structure within China would make it exceedingly difficult, if not functionally impossible, for Google to offer services in China while avoiding deleterious effects for free expression and other human rights. We acknowledge that there was a time when many believed that the entry of Western companies—including particularly those grounded in free expression and the spread of ideas—would inexorably lead to a gradual opening of Chinese society to allow more individual freedom. Over the last decade or more, however, that theory has been conclusively debunked as the expansion and globalization of China’s economy has corresponded with a period of tightening repression and state control.

Under these circumstances, the presence of a major, censored Google service within China runs the significant risk of further normalizing and fortifying the country’s censorship regime, sending a signal both to Chinese citizens and to autocratic neighbors that civic freedoms are secondary to market considerations, not only for the Chinese government but for Western companies as well. Additionally, a Google cloud storage service within China would be impossible to maintain without surrendering all legal safeguards protecting private user data from Chinese investigators and prosecutors who could use such data as evidence of “crimes against the state.”

We write this letter in order to voice these concerns in the hope that you will reconsider any plans that would further exacerbate the already grave climate for expression in China. In our assessment, it would not be possible for Google to launch these services within mainland China without enabling and legitimizing China’s censorship regime as a de facto accomplice. Furthermore, Google’s compliance with Chinese regulatory structure may place it in the position where it will be unable to guarantee the privacy of its users’ data, potentially exposing consumers to persecution by the Chinese state. Based principally on our research for our Forbidden Feeds report, we outline our principal concerns below:

Google Compliance with Censorship Directives
Google’s entry into China would require it to comply with local law, including censorship directives—estimated to number in the thousands annually—issued by both government and Chinese Communist Party organs.[1]

Given the obligations that all internet service providers operating in China are expected to uphold,[2] Beijing’s censorship apparatuses will foreseeably call upon Google to censor a variety of major issues, including ongoing human rights abuses, health and safety issues, and other “sensitive content,” including:

  • The pervasive forced “re-education” of hundreds of thousands of ethnic minorities in Xinjiang, western China, one of the most serious human rights abuses taking place globally. Human rights reporting on the subject is censored, while government media outlets promote an unchallenged, whitewashed narrative.[3]
  • Articles that call into question the voluntary nature of China’s “confessional videos,” where human rights defenders, journalists, and others publicly confess to crimes. It is widely acknowledged that these are forced confessions,[4] though skeptical coverage is widely censored.

Additional examples of ongoing human rights abuses that will certainly be censored include:

  • Self-immolations in Tibet;[5]
  • An epidemic of political activists dying during or shortly after their time in prison;[6]
  • Politically-motivated criminal charges and farcical trials against human rights lawyers, democracy activists, ethnic minority academics and writers, and others;[7] and
  • A continued trend of extrajudicial rendering of both Chinese and foreign citizens.[8]

Censorship also extends to social concerns; for example, within China, #MeToo and related hashtags are censored, including through filtered search results, by governmental mandate.[9] We recognize that Google has been at the forefront of lauding the role of the #MeToo movement as a catalyst for vital conversations on sexual violence and assault. If Google is forced to censor #MeToo within China, as seems virtually impossible to avoid given the strictures of government censorship, it will be enmeshed in silencing survivors of sexual assault and other forms of sexual abuse in a setting where their voices are in urgent need of a hearing.

Beyond this, Google’s compliance with censorship regulations has implications for the right to public access of health and safety information, given how Chinese regulators have imposed censorship of public health stories involving matters of life and death.

The most recent example is the vaccine safety scandal in which it was discovered that the drugmaker Changchun Changsheng Bio-Technology had sold hundreds of thousands of inferior vaccines for use in vaccinating children against life-threatening diseases. Internet censorship hampered public reporting on the story, delaying parents from learning that their children may have received inferior vaccines.[10] In situations like these—situations which will inevitably repeat themselves in the future—compliance with Chinese governmental censorship entails deliberately withholding health and safety information essential to public welfare and safety.

We understand that Google often has to weigh different considerations when operating—or exploring the possibility of operating—in difficult national contexts. China is not the only country in which internet freedom is unduly restricted. In China, however, the issue is far more than the fact that Chinese internet censorship exists; it is that Chinese internet censorship is dynamic, constantly updated, and aggressively wielded by authorities as a tool for social and political control. Our research helps demonstrate the fact that Chinese regulators continually ramp up their enforcement of restrictions,[11] shrinking the space for corporate discretion while simultaneously placing new categories of speech as off-limits. In other words, Chinese regulators will continually re-draft the obligations to which companies like Google must adhere, with the goal of forcing these companies into ever-more-extensive compliance with its censorship regime.

Google Services and China’s Criminalization of Free Speech and Opinion 
Beyond participation in China’s censorship regime, Google’s offering of services within China—most notably its Google cloud services—would place large quantities of personal user data within the jurisdictional reach of Chinese investigative and prosecutor authorities.

As you are no doubt aware, Chinese law criminalizes vast categories of free expression.[12] Additionally, the Chinese Communist Party is engaged in an increasingly strident campaign against dissidents, minority rights advocates, and others that authorities view as “troublemakers.”[13] In this campaign, the judicial system is wielded as an instrument of state control, often resulting in outrageous criminal penalties for those who peacefully exercise their right to criticize the government.

Given all this, we are gravely concerned that Google data would be used by Chinese authorities to target those it deems to be acting as “enemies of the state,” including through criminal prosecution. While all countries have legal processes to compel internet companies like Google to turn over user data, China’s extensive criminalization of free speech means that internet companies would almost inevitably facilitate human rights violations if they complied with government requests to hand over private user information.

The 2007 cases of writer Wang Xiaoning and journalist Shi Tao, who were sentenced to 10 years imprisonment on the basis of private emails criticizing the government—information that Yahoo! handed over to criminal investigators—remain a painful example of the dangers of internet service providers’ cooperation with Chinese authorities.[14] Today, the political restrictions on speech have only gotten worse, while China’s legal framework to compel such corporate cooperation has been dramatically strengthened.

There is ample legal basis for Chinese prosecuting authorities to demand users’ search history—as well as other electronic data—from Google for use in criminal proceedings.[15] Additionally, search and/or click-through results could conceivably be used as evidence of severity in libel cases, given the Chinese Supreme People’s Court’s 2013 holding that “severe criminal libel” is dependent on how many times offending speech has been clicked on or forwarded.[16]

Further, China’s Cybersecurity Law not only compels foreign firms to store Chinese user data within Chinese legal jurisdiction, but also—at Article 47—obligates network operators to stop or prevent the transmission of “illegal” information, including free expression that nonetheless violates Chinese law.[17] The Cybersecurity Law also imposes an affirmative obligation on these operators to disclose such “illegal” speech, upon its discovery, to relevant authorities.

Government regulators have already taken significant action against Chinese companies, including search engine company Baidu, for insufficient enforcement of Article 47.[18] We are concerned that, should Google launch its above-mentioned services within China, it would become exceedingly and increasingly difficult for Google to risk its investments through a principled stand against government access to private user data.

In Xinjiang and Tibet, two areas of China under severe religious and cultural restriction, indications of “separatist” or “subversive” inclinations can result in government harassment and punishment. In Xinjiang, particularly, evidence of religious “radicalization” is enough to land one in a “re-education” camp, with no due process and no opportunity for redress.[19] 

In such situations, even search information could conceivably be used as evidence of a crime; for example, a Uyghur may mark him or herself as potentially “infected” with “religious extremism”[20] simply by searching out message boards to discuss Quranic verses. A Tibetan monk may draw the suspicion of the State simply for Google searching “Dalai Lama birthday celebrations,” given that Tibetans have been imprisoned for holding such celebrations.[21]

China’s digital regulatory structure has been designed to deny companies like Google any meaningful discretion to refuse authorities’ data requests. However, if Google accedes to these orders, it may enable the further victimization of people and populations already under unjustifiable restriction. PEN America can list a series of examples of Chinese citizens who have been prosecuted for their online speech. This list includes people like Uyghur scholar Ilham Tohti, who is serving a life sentence for writing about Uyghur minority rights; Tibetan poet Shokjang, who was imprisoned for years for his online essays on freedom of religion; and of course Nobel Peace Prize winner Liu Xiaobo, who was sentenced in part for his role in drafting the online “Charter 08” petition. The prospect of Google being involved in aiding the Chinese government to build cases against the likes of these minority voices and human rights advocates is grievous.

PEN America’s Queries 
Given these concerns, we would like to pose the following questions to Google regarding specific policies and practices with which we believe Google would be called upon to comply in China should it mount its reportedly considered operations there. We hope these queries are helpful in elucidating some of the dilemmas that we can expect would arise, and would appreciate any response that you can provide.

Google and Censorship Directives Compliance

  1. Would Google comply with censorship directives from agencies of the Chinese government?
  2. Would Google comply with directives from the Central Propaganda Department of the Chinese Communist Party?

Google Filtering

  1. Would Google filter critical information regarding Xinjiang “re-education camps” from its search results?
  2. Would Google filter critical information regarding coerced confessions from its search results?
  3. Would Google filter out coverage of other ongoing human rights concerns from its search results?
  4. Would Google filter information regarding #MeToo from its search results?
  5. Would Google filter information relevant to ongoing health and safety concerns, including information that may have life-or-death implications, on the orders of the Chinese government?

Google and Search Requests Compliance

  1. Would Google comply with requests for search history and related information from Chinese authorities? Would Google comply with requests for data on how often a website has been accessed through Google Search or Google News?
  2. Would Google comply with Chinese regulators’ requests for search data in Xinjiang, knowing that even search terms like “nearby mosques” are sufficient to result in a person’s extra-legal detention?
  3. Would Google comply with Chinese regulators’ requests for search data in Tibet, knowing that even search terms like “Dalai Lama birthday” are sufficient to result in increased scrutiny and possible prosecution?

Google Data and Cybersecurity Law

  1. Would Google comply with the Cybersecurity Law by keeping private user information related to its developed Google search engine and news aggregator on servers located within the jurisdiction of the PRC?
  2. Would Google comply with Chinese authorities’ orders to turn over private user data in connection with criminal investigations, including in cases where the alleged “crime” is related to freedom of opinion and expression?
  3. Does Google intend to comply with Article 47 of the Cybersecurity Law, which requires that it affirmatively report “illegal” speech to government regulators?

We are sending this letter in the spirit of open, honest discourse to present our concerns at an early opportunity as Google reportedly continues to evaluate its potential course of action. We know you are currently conducting ongoing conversations with civil society organizations through the Global Network Initiative, of which PEN America is a member, as well as in other fora. We appreciate those efforts and welcome the possibility of dialogue with you as you evaluate these essential issues.

Thank you for your time and consideration.

Sincerely,
Suzanne Nossel,
CEO, PEN America

 


[1] See e.g. Forbidden Feeds: Government Controls on Social Media in China, PEN America (March 2018) [Hereinafter “Forbidden Feeds,”] at pp. 30-31.

[2] See e.g. Forbidden Feeds, at pp. 29-30.

[3] See e.g. Liu Xin, “Xinjiang Policies Justified,” Global Times, August 13, 2018.

[4] See e.g. Scripted and Staged: Behind the Scenes of China’s Forced TV Confessions, Safeguard Defenders (April 2018).

[5] See e.g. Nithin Coca, “The Slow Creep and Chilling Effect of China’s Censorship,” The Daily Dot, August 20, 2016.

[6] See e.g. James Tager, “They Killed Him: Denial of Medical Care in China and the Literary Conscience,” HuffPo, November 15, 2017.

[7] See e.g., “China: On ‘709’ Anniversary, Legal Crackdown Continues,” Human Rights Watch, July 7, 2017.  

[8] See e.g. Zach Dorfman, “The Disappeared,” Foreign Policy, March 29, 2018.

[9] See e.g. Forbidden Feeds, at pp. 25, 40, 48-49. See additionally Javier C. Hernandez & Zou Mou, “’Me Too,’ Chinese Women Say. Not So Fast, Say the Censors,” The New York Times, January 23, 2018; Petra Cahill & Dawn Liu, “Chinese Feminists Push #MeToo Movement Amid Censorship,” NBC News, May 3, 2018; Madeleine Ngo, “#MeToo is Growing in China, Despite Government Efforts to Stop it,” Vox, July 27, 2018.

[10] E.g. Kinling Lo, “China censors social media posts about vaccine scandal, monitor says, as tabloid suggests issue has been overblown,” South China Morning Post, July 25, 2018; “Censors jump into action as China’s latest vaccine scandal ignites,” AFP, July 22, 2018; Ben Westcott & Serenitie Wang, “Chinese state pushes back against widespread outrage over vaccine crisis,” CNN, July 25, 2018; Shannon Liao, “Chinese internet users employ the blockchain to share a censored news article,” The Verge, July 24, 2018.

[11] See e.g. Forbidden Feeds, at p. 21.

[12] See e.g. Forbidden Feeds at pp. 18-19.

[13] See e.g. Cholpon Orozobekova, “China’s War on Dissent,” The Diplomat, August 30, 2017; Tom Mitchell, “Xi’s China: Smothering Dissent,” Financial Times, July 27, 2016 ; Julie Makinen, “China’s Crackdown on Dissent is Described as the Harshest in Decades,” Los Angeles Times, August 10, 2016. 

[14] See e.g. David Barboza, “Chinese Dissident, Jailed on Evidence Provided by Yahoo!, Is Freed,” The New York Times, August 31, 2012.

[15] See e.g. Forbidden Feeds at p. 19.

[16] Id.

[17] Article 47: Network operators shall strengthen management of information published by users and, upon discovering information that the law or administrative regulations prohibits the publication or transmission of, they shall immediately stop transmission of that information, employ handling measures such as deleting the information, prevent the information from spreading, save relevant records, and report to the relevant competent departments. Translation from DigiChina Initiative, New America (June 29, 2018), at https://www.newamerica.org/cybersecurity-initiative/digichina/blog/translation-cybersecurity-law-peoples-republic-china/

[18] See e.g. Forbidden Feeds, at p. 22.

[19] See e.g. “China: Big Data Fuels Crackdown in Minority Region,” Human Rights Watch, February 26, 2018.

[20] See e.g. Xinjiang Political ‘Re-Education’ Camps treat Uyghurs ‘Infected by Religious Extremism’: CCP Youth League,” Radio Free Asia, August 8, 2018.

[21] See e.g. “Nine Tibetans Sentenced for Organizing Dalai Lama Birthday Celebrations,” Free Tibet, December 12, 2016.

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