By: Jianli Yang
As debates over the power of global technology companies unfold, it is worth keeping in mind–and appreciating–the relatively free, vigorous, and public nature of that debate, at least in the democratic world.
Perhaps the best way to appreciate that freedom is to juxtapose two sets of lawsuits implicated in that debate. The first was filed last week by former president Trump against Twitter, Facebook, and Google, all companies based in the United States. The second was filed by my pro-Chinese democracy organization earlier this year against WeChat (its parent company Tencent), a company headquartered in the People’s Republic of China.
On the surface, both sets of lawsuits deal with censorship. But that is a relatively superficial similarity; not only do the lawsuits advance radically different legal theories, they involve radically different facts. And, at bottom, they highlight the difference between free and democratic governance on the one hand, and unfree, autocratic governance on the other.
To grasp these differences, imagine if Twitter were essential to the daily life of English-speaking Americans, but banned users who espoused support for the Democratic Party, while giving their private information to the Republican Party (or vice versa). Whatever one’s views of the content moderation policies of US tech companies, no one alleges that they are engaged in such oppressively partisan conduct. Yet such conduct is not so different from what we allege Tencent (WeChat) is doing in favor of the Chinese Communist Party—including with respect to Chinese-speaking Americans in California.
What explains these differences? A large part of the answer is the nature of the state in the companies’ home jurisdictions.
Twitter and Tencent (WeChat) may both be private entities, but practically speaking the latter is less of one. Indeed, they are in a sense opposite: Twitter is so free of the state that it can kick the paramount political leader of its own home country off its platform without much fear of government retribution. Tencent, by contrast, is so beholden to the state that it cannot survive unless it demonstrates unconditional political obedience.
This can be better understood in the context of China’s National Intelligence Law, enacted on June 27, 2017. The law stipulates that “any organization or citizen shall support, assist, and cooperate with state intelligence work according to law.” It at the same time grants intelligence agencies authority to insist on this support: “state intelligence work organs, when legally carrying forth intelligence work, may demand that concerned organs, organizations, or citizens provide needed support, assistance, and cooperation.”
As Murray Scott Tanner analyzes, “companies could face even more serious burdens if the law is applied in concert with the new Cybersecurity Law, which accords officials far more specific authority to access and regulate many features of corporate networks that might be useful for intelligence-gathering. ”
To be sure, Americans of all political stripes are increasingly wary of how much wealth and power are being concentrated in the hands of private tech companies. But again, the reason they are worried is that such a concentration undermines the ideal of self-government–that is, of a democratic state. As Justice Louis Brandeis once warned, “We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.”
The difficulties posed by WeChat, by contrast, come from the opposite direction. Indeed, there can be little doubt that but for the CCP’s political prerogatives, Tencent would prefer a wider range of speech on WeChat–that is, to behave more democratically—as that would yield a larger and more diverse user base. Indeed, even WeChat users in the PRC routinely grumble about censorship, indicating that they too would prefer freer speech. But that would be anathema to the CCP, so neither Tencent’s preferences nor that of its users matter all that much.
Indeed, the biggest difference between Tencent (WeChat) and Twitter may lie in the very existence of the pending lawsuits, and in the existence of numerous articles like this one discussing the issues they raise. These phenomena are mostly bottom-up processes, driven by citizen engagement the likes of which would be unimaginable in today’s PRC. In fact, consider a recent lawsuit benefiting Tencent, when ordinary Chinese Americans took the Trump administration to court over the latter’s attempt to ban WeChat–and won. Can anyone imagine anyone in the PRC successfully suing the Xi administration over the inability to easily access Twitter? Of course not.
The point is, whatever one’s views on the power of global technology companies, those of us in the democratic world are free to advance those views, in institutions like the press and independent courts. That is worth savoring–and defending.