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

by Greenberg Glusker Fields Claman & Machtinger LLP

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.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.