Book Symposium The Electronic Silk Road: The Unexpected Alliance of Trade and Human Rights

[Molly Land is Professor of Law at the University of Connecticut School of Law]

I’m delighted to be able to take part in this online symposium dedicated to Anupam Chander’s new book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. Chander’s book masterfully brings together a set of debates about technology, privacy, and human rights to consider the pitfalls and promise of regulating Internet trade. In an accessible and engaging way, Chander reorients our thinking about the Internet by locating it firmly in the trajectory of global commerce. While attending carefully to the unique challenges posed by both digitization and networks, he persuasively demonstrates the continued vitality of established doctrines in conflict of laws, trade, and international human rights with respect to some of the most pressing problems we face today in Internet regulation.

To my mind, one of the book’s most interesting and compelling contributions is its discussion of the relationship between trade in services and human rights. Chander rightly notes that trade in goods and human rights have long been in tension with one another, as liberalization of trade is often associated with labor rights violations and other human rights abuses. Trade in services, however, might be an unexpected ally of human rights causes. Information and communication technology companies are providing services, and liberalizing the flow of those services across borders promotes human rights both directly (in the form of freedom of expression) and indirectly (in the form of greater political liberalization). Chander argues that given this relationship, the General Agreement on Trade in Services (GATS) might be considered a human rights document.

Trade law can be an ally of human rights causes in two ways, Chander argues. First, the principle of national treatment limits the extent to which states can discriminate against foreign service providers, including information services. Second, the transparency provisions of GATS could be used to require states to disclose how they are regulating information goods. I think the second of these—the transparency argument—could be incredibly powerful in challenging repressive policies because it will enable advocacy and organizing. It is especially difficult for citizens to hold states accountable for their policies in the area of information and communication technology because such regulation is often invisible. To the extent trade law can be used to make some of this regulation more transparent, that would be a significant gain. This is particularly the case with respect to governments like China that use vague censorship restrictions to incentivize Internet service providers to overblock.

I was also intrigued by the argument that national treatment could be employed in service of human rights. As I’ve argued elsewhere, the drafters of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) included the language “regardless of frontiers” to prevent states from unduly burdening foreign speakers. That said, this approach may be of somewhat limited applicability. States that restrict freedom of expression and information likely do so with respect to both foreign and domestic speakers alike, so the practical effect of national treatment might be limited. It could be a powerful tool, however, in situations in which states seek to create national “intranets” cut off from the global Internet by affirmatively discriminating against foreign content providers.

The book also addresses the pressures on global corporations and the states that seek to regulate them and develops a framework for resolving questions about compliance with local law. The question of local law is one of the toughest in the context of global information flows. Following local law can have spillover effects in the jurisdiction of origin. Moreover, in some instances, it can also result in companies being complicit in human rights abuses. Failure to comply with local law, on the other hand, creates conflict with local preferences and intrusions on sovereignty.

Chander’s pairing of glocalization and harmonization is one of the most sensible and balanced approaches I’ve seen with respect to this set of tensions. His approach navigates the two extremes of “no law” and “all law,” arguing that global telecommunications companies should provide international services that comply with local laws—“glocalization”—but only where such laws comply with human rights norms (“do no evil”). He also advocates harmonization with the goal of developing a lex mercatoria for Internet commerce as a way of minimizing the costs of trans-border service provision. As he notes, “Harmonize where possible, and glocalize where necessary.”

I wonder, however, if it will be possible for companies to distinguish between legitimate and illegitimate state regulation in many cases. For example, Chander argues that his approach “will require companies to try to avoid becoming the surveillance arm of the repressive state.” Although the book was published before the revelations about the National Security Administration’s domestic cybersurveillance program, I wondered whether companies truly attempting to “do no harm” would need to relocate assets out of the United States in light of these developments. Both the United States and the Chinese governments are eager for technology companies to build their products in ways that enable surveillance and eliminate the ability of individuals to be anonymous online. Both argue this is necessary in order to protect national security. How can technology companies draw the necessary distinctions? Are there such distinctions?

I don’t mean to suggest equating imprisoning dissidents for criticizing the government with mining emails for patterns related to suspected terrorist activities. My point is only to highlight the challenge for companies faced with the demands of local law seeking to avoid complicity in human rights abuses. In part, this is what I’ve come to think of as the “truck” problem. At a conference several years ago, David Post challenged my reliance on Article 19 of the ICCPR on the ground that the exceptions to this article were “big enough to drive a truck through.” It is difficult to challenge the purpose of particular policies because almost any policy can be reframed in ways that make it sound legitimate. This is where proportionality analysis becomes most useful, of course, and Chander makes this point. I merely raise the “truck” argument to ask whether in today’s cyber-environment it will be possible for companies to consistently identify “evil” so they can avoid it.

In addition, although I agree with Chander’s basic point that a kind of lex mercatoria for trade in services would ease exchange, I also wonder if we might not end up losing something in the process. Harmonization does not mean the erasure of diversity, of course, but even something as mundane as the details of professional credentialing and regulation can be tied to important historical and cultural contexts. With respect to the legal profession, for example, recent debates about multidisciplinary practices and the purpose of legal education have brought to the fore deeply held cultural beliefs about professional independence and the role of lawyers in society. It may be that the kind of change that would come with greater harmonization is necessary, appropriate, and well worth any associated cost, but we must also be aware of what could be lost with greater convergence.

Chander’s analysis, bringing together issues of privacy, security, and conflicts of law online and considering these issues through the lens of trade regulation, is both refreshing and insightful. Despite a few questions about the application of his approach at the margins, the book’s account of the various and contending pressures on Internet commerce moves the discussion about global Internet regulation forward in important ways. I look forward to continued conversation about these issues both in this symposium and in coming years.