By Marco Garbero

 

While Donald Trump’s plans for a border wall continues to garner widespread media attention and concern, a different type of border wall located across the world continues to be fortified. The aptly named “Great Firewall of China” is a term used to describe the legislation put in place by the Chinese government to censor the internet. This legislation continues to be the subject of much controversy as large internet corporations have dealt with significant trouble in maintaining business in China. Recently, in the anticipation of the 19th congress, the Chinese government has revealed its new plans for a “cleanup” of the internet and specifically the disallowance of VPNs.

 

VPNs, or virtual private networks, allow users to circumvent much of the laws the government have put in place, but also makes it so that various corporations can keep their sensitive data protected while maintaining service in China. With these new laws, VPN providers must request special permission from the government to continue to provide these services. This dismantling of VPNs will effectively end any potential for the average user to maintain privacy.

 

The continued effort by the Chinese to maintain censorship has serious ramifications for foreign businesses attempting to access the 233 million internet users located in the country. A disruption in service of VPNs as a result of government interference could cost foreign providers millions, and operating under this potential threat can be an enormous risk for these providers. A bigger business risk, however, may be the decision by a company not to access such a large market. After all, can any service provider really afford to miss out on 233 million users?

 

This potential problem leaves many wondering whether there is any legal recourse available should the Chinese government’s censorship laws actively interfere with the provision of outside services to users. Unfortunately, while there may not be a clear way to take the Chinese to court for damages, a reliance on trade relations is one of the few ways to effectively advocate that China’s use of censorship acts as a trade barrier. As an example of a company that has recognized this, Google has publicly advocated for the U.S. government to aggressively pursue the recognition of internet trade in any newly negotiated trade agreements. Google makes a valid point, and in order to properly handle challenges such as the ones posed by China’s censorship laws, there will need to be mechanisms for governments to address the issues on an international stage. At present, while the World Trade Organization (WTO) offers this to some degree, the trade law is vague and requires a push from its members to become useable.

 

Without the proper legal mechanisms to address the issue, it seems that China will continue to tighten its control over the internet to the detriment of foreign business interests and the global trade market. The only likely way to break down the “Great Firewall” may be to pursue aggressive tactics in negotiating trade agreements, but it will take a consolidation of efforts from WTO members to begin better defining internet trade laws. If the WTO is ever able to institute real severe economic consequences resulting from the use of censorship, the Chinese government may begin to think twice about the persistent use of these regulations.

 

Student Bio: Marco is a Staff Member of the Journal of High Technology Law.  He is currently a 3L at Suffolk Law, Vice President of the Italian-American National Bar Association and enrolled in the Intellectual Property Concentration.  He possesses a B.S. in Political Science from Boston University.

 

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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