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Regulating the Internet: China's Law and Practice

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Regulating the Internet: China's Law and Practice Beijing Law Review 2013. Vol.4, No.1, 37-41 Published Online March 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.41005 Regulating the Internet: China’s Law and Practice* Haiping Zheng School of Law, Renmin University of China, Beijing, China Email: [email protected] Received November 26th, 2012; revised December 27th, 2012; accepted January 4th, 2013 Though internet was not commercially available in China until 1995, it has been growing tremendously over the years. At the same time, the Chinese government has never ceased regulating or even censoring internet. This paper provides an overview of the development of internet in China, and the major regula- tory schemes that have a direct impact on internet speech. Further, it describes some of the specific meas- ures the Chinese government uses to control the internet: filtering and blocking, imposing liabilities on private parties, access control, internet “police”, and “guiding” public opinion. Finally, it concludes that internet censorship does more harm than good. Keywords: Internet; China; Freedom of Speech Introduction Like many other areas of China’s economic development since 1978, development of internet was largely driven by the China’s internet censorship has drawn much international government. As a result, China’s internet hardware infrastruc- criticism. For example, in 2006, the Reporters without Board ture is highly centralized. Currently, there exist nine state-li- included China as one of the 13 “enemies of the Internet” (Re- censed Internet Access Providers (IAPs), each of which has at porters without Borders, 2006). Then in 2010, Google decided least one connection to a foreign Internet backbone. All the to withdraw from Chinese market, claiming that Chinese gov- IAPs are required to be “at least fifty-one percent controlled by ernment’s attempts to limit free speech on the web, combined State-owned companies”. These IAPs, in turn, grant regional with other factors, had led the corporation to make such a deci- Internet Service Providers (ISPs) access to backbone connec- sion (Official Google Blog, 2010). tions. All these entities (IAPs and ISPs) are required to register On the other hand, the picture is not that gloomy. By 2008, with the designated government agents. Those who fail to com- the number of internet users in China has reached 220 million, ply with the regulations face the threat of being shut down making China the nation with the largest number of internet (ONI, 2005). users. Furthermore, due to the very nature of internet, it is often The government’s monopolistic position in internet infra- difficult for the government to control the information trans- structure facilitates censorship. Because all Internet traffic mitted through internet. Despite Chinese government’s efforts passes through the nine IAPs, the government can censor the to censor the internet, it is doubtful how much success it can information flow by adding filtering system “at the gateways.” achieve. Moreover, as Part 3 will show, the government requires ICPs This paper examines China’s internet censorship and its ef- and ISPs to filter internet content, resulting in severe self-cen- fects. Part 1 provides a general introduction to the development sorship. of internet in China. Such background information is necessary International companies have been playing a significant role for the understanding and analysis of internet censorship in in the development and maintenance of China’s internet infra- China. Part 2 introduces some of the regulations that have a structure. The Cisco system, in particular, has been integral to direct impact on internet speech. Part 3 describes some spe- China’s Internet development. It specifically implemented the cific measures (or techniques) the Chinese government utilizes backbone networks for at least three of China’s nine IAPs. to control the internet: filtering and blocking, imposing liabili- Western corporations’ such “conspiring” activities have been ties on private parties, access control, internet “police”, and subjected to the criticism of human rights activists (Newbold, “guiding” public opinion. The final part is the conclusion of the 2003). paper. Chinese Government’s Attempts to Control Development of Internet in China the Internet: An Overview Although China began to be connected to the internet as Before the introduction of internet, the Chinese government, early as 1987, internet was not commercially available in China under the leadership of the Chinese Communist Party (CCP), until 1995. From then on, internet has been growing tremen- essentially controlled all the traditional mass media, including dously over the years. By 2008, infrastructure has extended newspapers, magazines, television, radio, etc. Unsurprisingly, broadband Internet access to 92 percent of townships (Zhao, the government sought to control the new media even before 2008). internet became commercially available. Over the years, the *This article is one of the research results of the Project sponsored by China government promulgated numerous regulations to control the National Social Science Foundation (No. 12CFX020). internet. This part provides an overview of the regulations that Copyright © 2013 SciRes. 37 H. P. ZHENG have a direct impact on internet speech. However, certain contents are regularly filtered: for example, On February 1, 1996, China’s State Council promulgated the the Tiananmen Square protests of 1989, the independence of Interim Provisions Governing Management of Computer In- Tibet, Xinjiang and Taiwan, and the Falun Gong movement, etc. formation Networks. It prohibits four categories of information (Zittrain & Edelman, 2003; ONI, 2005). from being produced or transmitted online: information that With respect to filtering technology, China’s technology is would harm national security, disclose state secrets, threaten “the most sophisticated effort of its kind in the world”. (ONI, social stability or promote sexually suggestive material (art. 2005) As early as 1998, the Chinese government began to in- 13). vest in the notorious Gold Shield software project. The main On September 20, 2000, the State Council issued the Meas- function of the Gold Shield software is to censor “illegal” con- ures for Managing Internet Information Services (Measures, tents. It can pick the sensitive words and block the relevant 2000), which significantly extended the scope of prohibited content. However, the effectiveness of filtering technology is contents. Article 15 of the 2000 Measures provides: unclear. The filtering systems can not foresee all the sensitive ISPs (internet service providers) shall not produce, reproduce, words. In addition, sophisticated internet users can often access release, or disseminate information that contains any of the blocked contents through various circumvention technologies. following: 1) Information that goes against the basic principles Moreover, in recent years, as more and more individuals be- set in the Constitution; 2) Information that endangers national gan to use internet, the resistance against such blocking and security, divulges state secrets, subverts the government, or filtering practices also increases. The controversy over the undermines national unity; 3) Information that is detrimental to “Green Dam Youth Escort” (“Green Dam” hereafter) provides the honor and interests of the state ··· 6) Information that dis- a revealing example. The “Green Dam” software was a filtering seminates rumors, disturbs social order, or undermines social device that was supposed to be very powerful in filtering inter- stability ··· or 9) Other information prohibited by the law or net contents. In May 2008, the Minister of Industry and Infor- administrative regulations. mation (MII) spent more than 41 million yuan (about 6 million It is easy to see that provisions like this are “vague, confus- US dollars) to purchase the “Green Dam” software from two ing and inconsistent” (Li, 2004). Yet similar provisions are companies that had “cooperated” with Chinese government in present in many other internet regulations. Indeed, these provi- the past. The MII then offered the software to internet users for sions are so common that many Chinese seem to have “ac- free downloads. However, few individuals bothered to install cepted” them. Few people attempted to challenge the legiti- the “free” software (Chao, 2009). macy (or constitutionality) of such provisions. Obviously, such On May 19, 2009, the MII went further by sending a notifi- vague provisions can deter individual citizens from spreading cation to computer manufacturers of its intention to require all “sensitive” information that may fall into one of the prohibited new personal computers sold in China after July 1 to pre-install categories. the “Green Dam” software. However, soon after the notification was released, there was a surge of online criticism. At the night Internet Censorship and Its Resistance of June 30, just several hours before the requirement was to become effective, MII issued a notice, declaring that the re- This Part introduces some specific measures (or techniques) quirement to install the “Green Dam” software was to be post- that China uses to control the internet. Although these measures poned. Till day, the MII has not re-set the requirement for in fact overlap with one another, for purpose of clarity, they are compulsory pre-installation of the software. to be discussed separately here. Controlling the ISPs and the Resulting
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