Over the past year, authoritarian governments have been cracking down on “subversive” Internet activity, attracting disapproval from human rights groups. However, U.S. technology companies have played an important role in such incidents. In the case of Chinese dissident Shi Tao, Yahoo! surrendered identifying information that allowed the Chinese government to arrest and jail him. To make matters worse, Yahoo! claimed to know less about the situation than they actually did, provoking criticisms that they were negligent (or worse) in handling the order. In response, U.S. congressman Chris Smith has pushed for legislation (the “Global Online Freedom Act”) that would prevent Internet companies from cooperating with repressive governments.

The law has since stalled in the U.S. Furthermore, the European Telecoms Commissioner rejected the need for such legislation. As she told the Washington Post:

I believe that we should not put European companies in an invidious position where their choice appears to be to break the law or leave the market to more unscrupulous operators … Rather, our goal should be to find ways to allow operators and service providers to respect human rights without doing either.

This raises a jurisdictional challenge that is common in both human rights cases and Internet regulation. The international nature of this problem may prevent such regulation from protecting human rights. Democratic countries that pass such legislation may only undermine their own companies from doing business internationally, while local or regional companies reap the benefits of complying with repressive governments. If these authoritarian nations become closed to business from democratic countries, it may even slow down the spread of democratic ideals.

The EU official also raised another important aspect of such legislation:

Reding said the U.S. State Department and Department of Justice were cautious about the Global Online Freedom Act as even democratic countries in Western Europe could be subject to restrictions foreseen in the draft bill.

A legitimate concern is how such legislation will be applied, and if it could become too discretionary. The proposed U.S. Global Online Freedom Act makes an exception for companies who turn over identifying information for the purpose of “legitimate foreign law enforcement”. While the law would be a valuable weapon against authoritarian regimes, it is unclear how this would apply to controversial law enforcement efforts by otherwise democratic governments.

Even more peculiar is that the U.S. government could exempt itself from such legislation in the name of national security. Recall that telecom companies cooperated with U.S. government requests for warrantless wiretaps and surveillance. This warrantless surveillance program attracted criticism for violating the U.S. constitution.

Without a clear, consistent distinction between legitimate and abusive national security purposes, a law with such international impact could undermine itself with the appearance of hypocrisy. Such a law needs international cooperation in order to be effective, and thus needs to be seen as legitimate and fair beyond its borders. Thus, democratic nations should build a consensus around the kinds of online freedoms they are trying to protect, and draw a clear line that applies to everyone. For such an international problem, there is strength in numbers.