[governance] US requests China website censoring details

[William Drake]

Hi Hong

On Oct 20, 2011, at 11:42 AM, Hong Xue wrote:

> 
> Hi, Bill, very interesting discussion. It's been quite a lot of discussions on whether filtering/denial of access to certain online locations constitute TBT in WTO. I recently raised this issue at UNESCAP trade facilitation forum and discussed with a group of people from WTO and UNECE. The basic consensus is that technical barriers to trade is merely for trade for (physical) goods, not service.

Yes, the trade facilitation discussion on TBT focuses more on the material world---customs and related exciting stuff.  But I don't think the argument being made is that censoring sites is a TBT or a matter of  trade facilitation.

> As you know, WTO is still pretty messy on how to categorize e-commerce in the dichotomy. Basically it depends largely on the actual "subject matters" of the transaction.
> However and most unfortunately, no agreement can be reached on "digital things"  (well okay under copyright, such as downloading via itune).

Messy indeed.  A main polarity has been between the EU and US.  The EU has argued that "digital things" must be classified as services and under the GATS for various reasons, ontological as well as consistency with its single market agenda, its exclusion of audio-visual services from its liberalization commitments in the Uruguay Round, privacy protection, and ultimately because GATS disciplines are weaker and more flexible than GATT's.  The US has inclined toward the arguments from the software & other content industries that it doesn't matter if one ships across a border in shrink wrap or in bits if the things function like goods.  A colleague and I did a piece over a decade ago arguing that negotiators should define clear criteria differentiating goods from services rather than having dispute settlement panels legislate this, and that products delivered electronically should be considered goods if they are locally stored and transferable between buyers (that is if their function and contractual value become independent from the intervention of the supplier at the time of transaction).  But probably we're drifting off topic for this list...

> I personally tend to deem them services, which cannot be subject to trade restriction categories. The openness for service trade, such as telecom, is very much subject to each country's specific commitments made through negotiation.   

Not sure i understand the first sentence, but as stated I agree with the second.

Cheers

Bill
> 
> 
> 
> On Thu, Oct 20, 2011 at 4:05 PM, William Drake <william.drake at uzh.ch> wrote:
> Hi Sala
> 
> This is indeed an interesting development.  During the WSIS and thereafter, WTO staff and other trade people were rather equivocal when some of us argued that since the multilateral trade regimes apply to Internet commerce they constitute a form of global Internet governance.  They didn't want trade policy issues drawn into the IG space, inter alia because like the IPR people involved in WIPO & WTO they preferred to keep these solely within their institutional space.  But over the past couple years a growing number of trade analysts have begun to view FOE restrictions as trade restrictions, and Google & industry groups like the Computer & Communications Industry Association have picked up and pressed the argument.  This might present a little bit of a conundrum for folks who are both proponents of FOE and opponents of the WTO system…
> 
> China's restrictions on foreign-based websites & related operations may well be a violation of the GATS if its schedule of commitments doesn't carve them out under the relevant modes of supply like via networks or commercial presence.  China could try to argue that the restrictions are legal under the General Exceptions escape clause that allows measures necessary "to protect public morals or to maintain public order," but that works only if it can be shown that the services pose a genuine and sufficiently serious threat to the fundamental interests of society and the measures are nondiscriminatory and not a disguised restriction on trade in services.  If this goes to a dispute settlement panel, an important legal precedent, potentially backed by the option of trade sanctions, could ensue.  
> 
> Whether anyone would want to take the risk of acting on that option, and whether it'd even prove necessary, are other questions.  A couple years ago the  Appellate Body ruled against China in a dispute with the US over the importation of material publications and audiovisual products, finding that China's actions violated its accession agreement, the GATT, and the GATS, and specifically said that China had failed to show its actions were necessary to protect public morals.   I don't recall that this gave rise to sanctions though—I think they undertook some relaxation of restrictions in their distribution system.  Who knows if that could be a precedent…
> 
> Bill
> 
> 
> 
> On Oct 20, 2011, at 5:36 AM, Salanieta T. Tamanikaiwaimaro wrote:
> 
>> Dear All,
>> 
>> I read with interest the following:
>> 
>> US requests China website censoring details
>> http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10760429
>> 
>> -- 
>> Salanieta Tamanikaiwaimaro aka Sala
>> 
>> Tweeter: @SalanietaT
>> Skype:Salanieta.Tamanikaiwaimaro
>> Cell: +679 998 2851
>>  
>> 
>> 
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> 
> -- 
> Dr. Hong Xue
> Professor of Law
> Director of Institute for the Internet Policy & Law (IIPL)
> Beijing Normal University
> http://www.iipl.org.cn/
> 19 Xin Jie Kou Wai Street
> Beijing 100875 China

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