“River Crabbing” Chinese Search Engine Battles for Freedom of Expression in the U.S.

by Greenberg Glusker Fields Claman & Machtinger LLP
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In 2004, the Chinese Communist Party announced a new national goal of building a “Harmonious Society.” Since then, this goal has often been cited by the Chinese government as a reason for Internet censorship.  In Mandarin, the word “Harmonious” is pronounced héxié (the accent marks here indicate rising tones).  However, by changing the tones slightly to héxiè (a rising tone followed by a falling tone) the word changes from harmonious to “river crab” – which has become Internet slang for government censor.  So when something suddenly disappears from the Internet in China, people often joke that it has been “river-crabbed.”

Although river-crabbing does not happen here in the United States, last week a federal judge had to address a related problem:  Does the First Amendment allow Baidu.com (China’s version of Google) to censor political speech from its search results for users here in the United States?

The scope of the concern is not insignificant.  While Baidu.com does not approach Google in terms of users, it is still the third largest search engine on the planet.  And, according to a group of New York plaintiffs, Baidu.com censors its U.S. search results to filter out anything related to the Democracy movement in China and related topics such as the Tiananmen Square Incident.

In China, such censorship is normal.  Even the word “government” is a sensitive Internet term there.  This has caused crafty Chinese Internet users to come up with allusions like George Orwell’s “Ministry of Truth” to refer to the government.  The Chinese also have other clever terms such as “scaling the wall” (to circumvent the Great Firewall), “West Korea” (slang for China, pejoratively comparing it to North Korea’s repressive regime) and, of course, even more complicated steganographic techniques.  [And before you ask, no, steganography has nothing to do with stegosauruses].  Perhaps the most chilling expression is when people respond to subversive posts by telling the poster to “check the water meter,” which (half-jokingly) suggests that the authorities will soon show up at the door to arrest him or her under false pretenses.

In 2005, I remember thinking about this sort of thing while sitting in my Beijing apartment watching an episode of Star Trek: TNG.  In the episode, Captain Picard gets transported to an alien world where he encounters a civilization that speaks entirely in metaphors.  At a certain point, one of the aliens throws Picard a dagger and utters the phrase “Darmok and Jalad at Tanagra.”  Picard initially thinks the alien is challenging him to a duel, but eventually deduces that the phrase is actually a metaphor referring to a past battle in which two guys named Darmok and Jalad had to work together to battle a common enemy on the island of Tanagra.  It then occurs to Picard that the alien is asking for his help to battle a predator that is currently stalking the two of them.  The most bizarre part about watching the episode in China was that many Chinese people must talk to each other this way when using the Internet to discuss sensitive topics.  Otherwise, someone might show up at the door to check the water meter.

Like me, you may have been ready to hoist the nearest Gadsden flag when confronted with the question of whether Baidu.com should be allowed to censor search engine results to filter out pro-democracy content.  But as Judge Furman observes in his opinion, “[t]here is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech.”  As the United States Supreme Court has explained, “[t]he First Amendment does not guarantee that … concepts virtually sacred to our Nation as a whole … will go unquestioned in the marketplace of ideas.”  Judge Furman goes on to comment that “the Court’s decision – that Baidu’s choice not to feature ‘pro-democracy political speech’ is protected by the First Amendment – is itself a ‘reaffirmation of the principles of freedom and inclusiveness that democracy best reflects, and of the conviction that our toleration of criticism…is a sign and source of our strength.”

Judge Furman also points out some obvious alternatives:  If you don’t like Baidu.com, you can use Google, Microsoft’s Bing, Yahoo! Search, or, if you rock your khakis with a cuff and a crease, Gizoogle.  The point is:  our society is made great by the marketplace of ideas.  Conservatives will tell you that if you value your Second Amendment freedoms, you don’t have to waste your time watching Real Time with Bill Maher if you don’t want to.  Bill Maher will tell you that if facts matter to you, you don’t have to watch Fox News.  And so on and so forth.

The one interesting footnote in the case is Judge Furman’s mention of the anti-trust laws.  The decision notes that “[g]iven the allegations in this case, there is also no need to address whether laws of general applicability, such as antitrust laws, can be applied to search engines without implicating the First Amendment.”  While this may be true for this particular case, the intersection of anti-trust laws, the First Amendment, and network neutrality, may be of great concern in the near future, particularly in light of the recent Federal Appeals Court decision ruling that the FCC exceeded its authority in the way it was attempting to enforce network neutrality.  If, for example, network neutrality in this country goes the way of the stegosaurus, and media conglomerates control both the content and the distribution channels (including search engines), consumer choice and innovation will both suffer.

It may be a bit premature for Americans to start worrying about river crabs, but we must be vigilant in our attention to these issues.  Otherwise, we too may one day find strange men at our doors asking to come in to check the water meter.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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