Human Rights and Information Technology, Doing Well and Doing Good
Historically, telephony has been highly regulated while the Internet has not. With the convergence of mobile telephony and the Internet, a host of regulatory and legal frameworks that manage spectrum and protect individual rights are being challenged for inadequacy. In the developed world, governments fighting the war on terror want access to individual mobile phone and internet data. In the developing world, oppressive governments from the Arab world to China, seek to aggressively suppress dissent by monitoring individual mobile phone and internet activity. Human rights advocates worldwide are vigorously resisting governmental attempts to access individual data and often vilify the companies that comply with governmental requests, calling on companies to increase individual security and anonymity on mobile devices and resist government law enforcement requests.
What are the implications for companies like Google or AT&T? Google was praised by human rights activists for pulling out of mainland China rather than comply with the government’s censorship requirements. But Google’s decision was made easier because it was a distant 2nd in search queries behind Baidu and because it could provide uncensored service, albeit more limited, by shifting it from the Chinese mainland to Hong Kong. Would Google have made a similar decision in countries where it enjoyed more significant market power? In turn, AT&T has been criticized in the U.S. for compliance with Patriot Act requests, but has experienced more muted criticism overseas.
AT&T operates in over 150 countries via licensing agreements for spectrum access, and has more phones operating internationally than any other U.S. carrier, due primarily to large business customers. Subsequently, one might assume that AT&T must wield great influence over resisting requests by governments seeking access to information on mobile phone customers. But I was surprised to learn during the Silicon Valley Human Rights Conference that mobile phone companies like AT&T, when confronted by governmental requests for individual customer data, are limited contractually.
To gain access to a country’s spectrum, mobile telephone companies must operate under the terms of a government’s license, which customarily includes requirements to provide support to government’s law enforcement as needed. As with law enforcement requests under the U.S. Patriot Act, phone companies providing support to law enforcement is a thorny issue, but at least individual rights enjoy greater legal protections from government intervention in the developed world. Not so in the developing world, as countries from China, Egypt, and Syria apprehend those they deem dissenters who are identified by monitoring individual telephone and Internet activities via consent of telephone companies.
There is a significant cost for a mobile phone company to secure licenses to operate in multiple countries and they in turn, make commitments to their individual and business customers to ensure access. So when faced with a request from a law enforcement agency, one that might enable a government to suppress dissent that in the Western world would be commonplace and legal (e.g. Freedom of Expression), what should a mobile phone company do?
First, a company has an obligation to ensure it’s a legitimate request, that it is issued pursuant to a country’s laws, that it comes from the appropriate government authority, and that the request fits the requirements outlined in the licensing agreement. But is that enough? Some companies would argue that they are duty bound under a country’s licensing agreement to respond to the law enforcement request or risk losing its license. And losing that license would have a material impact on operating performance, which may put corporate management in conflict with shareholders.
But most human rights activists rightly dismiss companies who say they are simply following the laws of the country in which they operate. If lead paint is illegal in the U.S. but legal in a country overseas, should a U.S.-based toy company allow application of lead paint on its toys in that overseas country? If freedom of expression is legal in the U.S. but illegal in an overseas country, should a U.S.-based mobile phone company like AT&T assist a foreign government in suppressing individual freedom of expression?
These are highly complex issues, uniquely nuanced for each country, and it is too simplistic to argue that a company must always take the moral high ground and refuse government requests, sacrificing their operating license if needed. But should more companies like Google take stands when faced with what they perceive as law enforcement requests that violate human rights, even if legal by that country’s norms?
Most human rights advocates recognize the complexity of the issues but argue that companies like AT&T have an obligation to wield their power to ensure their customers’ anonymity and security, resisting law enforcement requests that seemingly violate basic human rights, to delay compliance as long as possible. Some note that with Arab Spring, governments fell so quickly that if mobile phone companies delayed compliance, some human rights activists might still be alive today.
For human rights activists, the stakes can be life or death; for companies, it’s their brand reputation. But with the advent of social media, this brand reputation damage can be immediate, impacting employee morale, incurring investor ire and increased media scrutiny and consumer backlash via grassroots campaigns. So it’s incumbent upon companies to be at the table. At the Silicon Valley Human Right conference, I was pleased that representatives from companies like AT&T, Google, Twitter, and Facebook, were present and engaging in robust dialogue. For it is only through such dialogue, between corporate and stakeholder opinion leaders, that we will be able to identify and effect the systemic solutions, protecting individual freedoms and enhancing brand reputation, that we need to see.