Sunday, November 14, 2010

Avoiding Corporate Complicity in the Human Rights Violations of States--Microsoft and Software Licensing

Traditionally, the conventional wisdom centered the regulatory function in states, and the form of governance in "law" understood narrowly as the product of legitimately constituted legislatures or delegated to legitimately constituted regulatory agencies, to the extent the "law" so enacted fell within the delegated authority vested in such entities.  At the apex of this cluster of governance institutions was "the state"--a construct conflating a territorial and its political system with the institutional apparatus (usually but not always a "government") constituted to exercise political power within the territorial limits of the state.  Increasingly, however, states have sought to move beyond the conventional forms of the exercise of its power.  States now govern beyond the traditional parameters of "law"--focusing on the techniques of managing behavior once reserved to non-state actors:, especially religious organizations, corporations, and social or economic communities  non-binding principles. systems of disclosure, information gathering, observation, recording and surveillance.  These are used to monitor, judge and control subject populations to ensure appropriate behavior by means of a control of the environment in which human activity occurs, rather than by the traditional use of command.  See, e.g., Larry Catá Backer,  Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley (August 25, 2010). Law Review of Michigan State University-Detroit College of Law, 2004.

One of the reasons for this movement away from law to management was the availability of technologies of control previously unavailable.  The ability to monitor individual and communal action has become much more extensive and less costly.  Another reason was the loss of the power of states to affect behavior in the traditional way.  Law and regulation become less meaningful when the extent of the power to control is smaller than the territory within which the objects of control operate.   The process of opening borders to facilitate the increasingly free movement of capital, services and enterprises (and less so for labor) conventionally understood as economic globalization has forced states to seek control through those techniques traditionally the province of non-state actors.  States  control within their territories  through "law" to be sure.  But especially  with respect to those movable components of economic activity, states increasingly use the techniques of the corporation or the church as a means of managing behavior and controlling  those who occupy space within its borders.

Yet this move toward governance through the techniques of non-state actors is significant for a more important reason. It has exposed exposed a functional reality that academics and states had ignored--that non-state actors govern, noth through law and the institutions of states but through their own governance systems.  Understood as "soft" law from the perspective of the state,these assumed a more compelling character within the "social" space within which these actors operated. See, e.g., Larry Catá Backer, Corporate Social Responsibility and Voluntary Codes: Apple, its Stakeholders, and its Chinese Laborers, Law at the End of the Day, June 16, 2006. More importantly, non-state actors govern using the very techniques now at the heart of the governance efforts of states.  These governance frameworks, like those of states, can be understood, in their most well developed forms, as self-referential constructs with its own constitution, rules derived from its governing framework, an institutional framework for the organization of the governance unit and effective means for the interpretation of these rules and their enforcement through mechanisms of dispute resolution.   See, Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007.

Most important, the recognition of the existence and power of these autonomous systems of governance founded on the values and  objectives of these functionally differentiated communities has found its way back into important efforts to organize  important aspect of transnational governance.  Of greatest significance has been those of the United Nation's Secretary General's Special Representative for Business and Human Rights, John Ruggie, and his critical role in the development of the U.N. Framework for the governance of business and human rights, the "Protect, Respect and Remedy Framework"--described as "a framework that clarified the relevant actors’ responsibilities, and
provided the foundation on which thinking and action could build over time."  The U.N. "Protect Respect, Remedy" Framework for Business and Human Rights (Sept. 2010).

In June 2008, after three years of extensive research and consultations with governments, business and civil society on five continents, the Special Representative concluded that one reason cumulative progress in the business and human rights area had been difficult to achieve was the lack of an authoritative focal point around which actors’ expectations could converge—a framework that clarified the relevant actors’ responsibilities, and provided the foundation on which thinking and action could build over time.
The Special Representative presented such a framework to the Human Rights Council in June 2008. The “Protect, Respect and Remedy” Framework rests on three pillars: the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur; and greater access by victims to effective remedy, both judicial and non-judicial.  The U.N. "Protect Respect, Remedy" Framework for Business and Human Rights (Sept. 2010).
The foundation of the Second Pillar corporate responsibility to respect human rights is grounded in the understanding of the principles that corporations govern--each governs itself internally and is subject to governance rules from the complex of stakeholders that make up its operating constituencies. Corporations thus sit within state "law" systems" and non-state behavior norm systems, each binding to the extent of its jurisdiction--states within their territories, stakeholders within the extent of their power to affect each other.  "In addition to compliance with national laws, the baseline responsibility of companies is to respect human rights. Failure to meet this responsibility can subject companies to the courts of public opinion - comprising employees, communities, consumers, civil society, as well as investors - and occasionally to charges in actual courts. Whereas governments define the scope of legal compliance, the broader scope of the responsibility to respect is defined by social expectations - as part of what is sometimes called a company’s social licence to operate. . . . The corporate responsibility to respect exists independently of States’ duties." United Nations Human Rights Council, 8th Sess Agenda Item 3, Protect, Respect and Remedy: a Framework for Business and Human Rights Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, A/HRC/8/5 (7 April 2008) (at Paras 54-55).  Indeed, the very description of the responsibility acknowledges both the relationship to and the autonomy from the domestic legal systems of those states within which a corporation or other economic enterprise may operate.

The responsibility to respect, thus understood, does not exist as a free floating obligation with an ambiguous relationship to public international law or to corporate obligations imposed by the domestic legal orders of states in which corporations operate. . . . . The responsibility is defined by reference to norms in international norms, but is grounded in the social license of corporations.  Corporations are legitimated as creatures of law by complying with the requisites of the law applicable to their organization and operation.  Legitimation provides a corporation with certain rights under the domestic law of a state--legal personality, limited liability, the right to access the formal system of dispute resolution and the like.   Corporations are legitimated as economic entities by the actions of their principal stakeholders . .  .investors purchase securities, customers purchase products, employees work, trade creditors extend credit, and the like.  A corporation cannot exist as a viable entity in the absence of either legal or social  "validation."  The expectations of stakeholders as well as those of states, bind corporations as a matter of law and economics.  Human rights touches on the relationship of the corporation to its stakeholders in the context of the social license within which they operate. Those rights, sourced in global norms developed as consensus among the community of nations, apply beyond the particular laws of a state.  In some contexts, corporations face compliance with a multiple set of norms--state law and social license norms (the responsibility to protect).  In other context, especially where corporations operate in states with weak of ineffective government, or where corporations operate in conflict zones, the only norms that may guide corporate behavior may be those arising from their social license (and grounded in human rights). Larry Catá Backer, Business and Human Rights Part I--Thoughts on the Corporate Responsibility to Respect Human Rights, Law at the End of the Day, Feb. 1, 2010.
The existence of multiple sources of obligation, each derived from its own constitutive governance framework does not suggest an anarchic systems of unconnected and disaggregated obligations., nor does it suggest disconnect or incompatibility among these systems.  Within a framework of economic globalization, one grounded in the movement of significant economic forces, trans-systemic activity could be long sustained in the absence of communication and harmonization.  Communication makes it possible to move between borders--physical or conceptual.  Globalization requires a common language. Harmonization suggests the necessity of shared understanding of the meaning of words and the expectations of behaviors to facilitate activity. Globalization requires at least the recognition of a common set of standards of behaviors and expectations, or at least of the consequences of deviating from them within particular localities.  To some extent, then, substantive values tend to be trans-institutional.  The same values that are reproduced as global social consensus on appropriate behavior tend to find themselves incorporated into the law of the domestic legal orders of states.

Conversely, failures to observe consensus based substantive norms can arise when either states or corporations fail to respect those "norms" central to systems of law or social regulation.  Just as corporations can breach its obligations under national or "social license" norm structures, so can a state breach their obligations under either.  The issue of complicity arises when states or corporations work together or are involved in such transgressions together. Within the context oif the U.N. Framework, the importance of complicity has been underscored:
73. The corporate responsibility to respect human rights includes avoiding complicity. . . .  Complicity refers to indirect involvement by companies in human rights abuses - where the actual harm is committed by another party, including governments and non-State actors. Due diligence can help a company avoid complicity.

74. The legal meaning of complicity has been spelled out most clearly in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime . . .

75. In non-legal contexts, corporate complicity has become an important benchmark for social actors, including public and private investors, the Global Compact, campaigning organizations, and companies themselves. Claims of complicity can impose reputational costs and even lead to divestment, without legal liability being established. In this context, allegations of complicity have included indirect violations of the broad spectrum of human rights - political, civil, economic, social, and cultural. United Nations Human Rights Council, 8th Sess Agenda Item 3, Protect, Respect and Remedy: a Framework for Business and Human Rights Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, A/HRC/8/5 (7 April 2008) (at Paras 73-75).
Complicity suggests the ways in which breaches of both the state duty to protect and the corporate responsibility to respect can occur in concert.  Concerted breaches can be more dangerous than a breach of either a duty to protect or a responsibility to respect precisely because the breach crosses regulatory borders.    "More importantly, though, complicity analysis is useful beyond its substantive implications.  It also highlights the links between the state duty to protect, the corporate responsibility to respect and the remedial pillar.    See, Larry Catá Backer, Business and Human Rights Part II--Thoughts on the Corporate Responsibility to Respect Human Rights, Law at the End of the Day, Feb. 2, 2010.  Anna Triponel recently noted both the extent of this connection and the  danger of relying solely on the state and legal frameworks for  effectively meeting the challenges posed by complicity among states and transnational actors.  See Anna Triponel, "Business and Human Rights Law: Diverging Trends in the United States and France", 23 American University International Law Review 855 (2008)
 Triponel reminds us that though international actors have been attempting to change global legal culture to embrace the notion of state liability for complicity in the human rights violations of private actors, "it is improbable that France or the United States would be held liable under this standard." Id., at 879. On the other hand, French courts will enforce supra national law directly in French courts to a much greater extent than American courts. But those direct obligations generally extend to the specific obligations of France under the European Convention on Human Rights, and the legal framework of the European Union. For Americans, the pickings are slim. . . .   Beyond that there are voluntary codes., but enforcement is private and subject to substantial criticism among civil society actors eager to impose more direct obligations on corporate entities. Id., at 885-891.  Larry Catá Backler, Yelling Loudly and Carrying a Small Stick: The Nation State and the Enforcement of Global Human Rights, Law at the End of the Day, June 30, 2009 (reviewing Anna Triponel, "Business and Human Rights Law: Diverging Trends in the United States and France", 23 American University International Law Review 855 (2008)
Triponel notes that "plaintiffs increasingly use the theory of corporate complicity in domestic law suits against corporations. As such, defining the parameters of corporate complicity is especially important." Triponel, supra, at 904 ("The International Commission for Jurists, for example, was created in 2006 to 'develop the legal and public policy meaning of corporate complicity in the worst violations of international human rights and humanitarian law that amount to international crimes.'” Id (quoting in part Business & Human Rights Resource Centre, International Commission of Jurists - Expert Legal Panel on Corporate Complicity in International Crimes)). More interesting, perhaps, is the emergence of a soft law framework for remediation for harms stemming from corporate complicity in human rights abuse. ID., at 898-904. The National Contacts Point in the UK has taken this up recently under the OECD Guidelines for Multinationals. See Larry Catá Backer, Rights and Accountability in Development (‘Raid’) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, Melbourne Journal of International Law Vol 10:258-307 (2009).  See also Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon, 20 BERKELEY J. INT'L L. 91 (2002); Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE. L.J. 443 (2001).

Concerted breaches also suggest the importance of invoking both the state-law system and the social license systems to seek to manage, and in the best case, remedy these breaches.  Recent approaches to complicity by states and corporations in their respective human rights related harms nicely illustrate the complexity of the interplay between state-based law systems and non-governmental private governance (social license systems in the language of the U.N. Framework).  Complicity also suggests the functional efficiency that marks the growing movement away from law to management governance systems.  This is nicely illustrated by the recent efforts of the Russian Federation to protect the intellectual property interests of Microsoft Corporation.    In early September 2010 reports began be published in leading global newspapers about a curious partnership between Microsoft Corporation and the Russian Federation related to Microsoft's global efforts to manage its intellectual property piracy problem.  On the one hand, the stories were all about the use of law to protect the rights of a corporation to its property in accordance with national and global standards.  On the other hand, the story suggested a partnership of convenience in which the Russian Federation was able to  suppress its critics in civil society and in return Microsoft got state action agonist intellectual property pirates.

It was late one afternoon in January when a squad of plainclothes police officers arrived at the headquarters of a prominent environmental group here. They brushed past the staff with barely a word and instead set upon the computers before carting them away. Taken were files that chronicled a generation’s worth of efforts to protect the Siberian wilderness. The group, Baikal Environmental Wave, was organizing protests against Prime Minister Vladimir V. Putin’s decision to reopen a paper factory that had polluted nearby Lake Baikal, a natural wonder that by some estimates holds 20 percent of the world’s fresh water. Instead, the group fell victim to one of the authorities’ newest tactics for quelling dissent: confiscating computers under the pretext of searching for pirated Microsoft software.Clifford J. Levy, Part V: Unlikely Partners, Russia Uses Microsoft to Suppress Dissent, New York Times, Sept. 11, 2010.

From the perspective of the law-state, Microsoft is a stranger to the actions of the officials of the Russian Federation.  Respect for the law and for its formal application, is a matter for state authorities.  If, as a consequence of the Russian enforcement activities there appears to be a targeting of some classes of violators over others, that is a matter for state concern, and for diplomatic interactions between states.  Yet, it appears that Microsoft has not been entirely passive in the protection of oist property rights, and the enforcement through the good offices of Russian state officials.
Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years. Security officials say the inquiries reflect their concern about software piracy, which is rampant in Russia. Yet they rarely if ever carry out raids against advocacy groups or news organizations that back the government. As the ploy grows common, the authorities are receiving key assistance from an unexpected partner: Microsoft itself. In politically tinged inquiries across Russia, lawyers retained by Microsoft have staunchly backed the police. Interviews and a review of law enforcement documents show that in recent cases, Microsoft lawyers made statements describing the company as a victim and arguing that criminal charges should be pursued.

But Microsoft Corporation also is proud to present another face to its staekeholders.  It announce--to its investors and consumers--that "At the world's largest software company, we create social and economic impact wherever we do business. We are accountable to shareholders, customers, employees, business partners, and in meeting their expectations we are committed to operating responsibly and sustainably." Microsoft Corporation, Investor Relations, Governance and Citizenship at Microsoft. Microsoft also reminds its stakeholders that "Good corporate governance encourages accountability and transparency, and promotes good decision-making to support our business over decades." Microsoft Corporation, Investor Relations, Corporate Governance.

In addition, its "technology innovations, people, partnerships, and day-to-day business operations make a meaningful contribution to the sustainability and prosperity of communities around the world." Microsoft Corporation, Investor Relations, Corporate Citizenship.  Yet, from the perspective of  Microsoft's obligations sourced beyond the law-state system of the Russian Federation, it was precisely these goals there were being compromised by its efforts to help the Russian Federation enforce its law generally, and enforce its law through the targeting of civil society actors that tended to challenge governmental actions, in particular.  Lawfulness, here, appeared to serve as a screen for political activity under cover of law, and Microsoft complicit in the actions for its own narrowly personal economic interests.

The power of this autonomous system was felt almost immediately after the New York Times reported Microsoft's relationship with the government of the Russian Federation:
In an attempt to protect the Russian nongovernmental organizations and the independent news media from attacks by authorities who accuse them of violating Microsoft's copyrights, the company will temporarily legalize their pirated software.
What Microsoft will actually do is issue a “unilateral NGO software license” that will be covering NGOs' software automatically, until 2012, according to Microsoft’s senior vice president Brad Smith.
He added that NGOs and independent news organizations won’t need to take any steps to benefit from the license’s terms, and that this initiative will hopefully prevent NGOs from falling victim to “nefarious actions taken in the guise of anti-piracy enforcement.”
“Now our information will fully exonerate any qualifying NGO, by showing that it has a valid license,” he wrote on his blog.
The next step will come in 2012, when Microsoft will move all NGOs into its existing donation program, Infodonor, and allow them a to possess up-to-date software. Microsoft Legalizes Russian NGOs Pirated Software, Softpedia, Sept. 15, 2010.
The critical role played by powerful media actors cannot be overlooked.   "In response to inquiries from The New York Times about Microsoft’s role in antipiracy inquiries in Russia, Kevin Kutz, director of public affairs at Microsoft’s headquarters in Redmond, Wash., states that one of the additional antipiracy efforts in Russia is to increase awareness of Microsoft’s Infodonor program among NGOs in Russia, particularly outside the capital cities. This program makes software available to NGOs with no charge by Microsoft. Just a few NGOs benefited from it because most Russian organizations didn't know about this possibility."  The New York Times effectively converted a Microsoft Corporation single minded effort to protect its property rights indiscriminately into a more nuanced program that recognized the human rights effects of its decisions. Microsoft changes its policy concerning Russian NGOs, International Network Youth Human Rights Movement, Oct. 21, 2010. On the role of the media in the implementation of non-state autonomous governance systems generally, see, Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008. A

By November, then, Microsoft Corporation had moved to institutionalize its now reoriented program.  The effect was to fine tune Microsoft's approach to the protection of its intellectual property, permitting it to aggressively protect its property while doing it in a manner more sensitive to the needs of civil society elements and the effects of its economic decisions on the rights of individuals within states. "Microsoft will issue a "unilateral NGO software licence" that will run automatically until 2012 and cover "the software already installed on their PCs", Microsoft’s senior vice president Brad Smith said on his blog. The move will hopefully prevent NGOs from falling victim to "nefarious actions taken in the guise of anti-piracy enforcement", Mr Smith wrote. 'Now our information will fully exonerate any qualifying NGO, by showing that it has a valid licence.'" Microsoft blankets NGOs and media in Russia with free licences, Rossiyskaya Gazeta (Russia) from the Moscow Times, Oct. 29, 2010.  That was possible only because Microsoft Corporation was required to meld its rights and obligations within the domestic legal order of the Russian Federation,  with its obligations as an actor within transnational commercial systems.  And Microsoft Corporation was able to do good in this way without breaching the laws of the Russian Federation, or permitting the Russian Federation to use its legal structure to adversely affect the human rights of its civil society sector.  The incentive--compliance with came at little economic cost to Microsoft:  it was reported that "'NGOs only account for a tiny proportion of software users, meaning that anti-piracy efforts will have to continue at full swing,' said Alexei Maximov, editor of the Russian edition of PC Week." Microsoft blankets NGOs and media in Russia with free licences, Rossiyskaya Gazeta (Russia) from the Moscow Times, Oct. 29, 2010.  Complicity avoidance pays in traditional as well as in contemporary terms.

Complicity invokes issues of state duty to protect, the autonomous responsibility of the corporate obligation to respect, and the equally autonomous provision of remedies for complicity violations by entity and state."  Larry Catá Backer, Business and Human Rights Part III: Foundations, Law at the End of the Day, Feb. 3, 2010.  The state alone is incapable of bearing the entire weight of he human rights obligations of all stakeholders in the current system of economic globalization.  Human rights impacts are both borne by and the responsibility of all actors.  It is far too late to construct governance systems on the basis of misplaced nostalgia for a world order (and world ordering system) that like the German and Japanese Empires, were swept away after 1945. The U.N. Framework takes this new set of complex polycentric governance structures into account in constructing systems to meet its specific objectives--the ordering of business and human rights within an ordering framework.  The recent actions of Microsoft Corporation in the Russian Federation suggests both the reality of this emerging system and its functional governance effectiveness.   More importantly, it suggests the depth and reality of governance systems beyond the state, and of their utility as an important part of any framework to manage activities, from whatever source, that may negatively impact human rights. 

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