THE UNIVERSITY OF CHICAGO REGULATING REPUTATION IN CHINA: PRIVACY, FALSEHOODS, AND SOCIAL CREDIT A DISSERTATION SUBMITTED TO THE FACULTY OF THE LAW SCHOOL IN CANDIDACY FOR THE DEGREE OF DOCTOR OF JURISPRUDENCE BY XIN DAI CHICAGO, ILLINOIS JUNE 2018 Copyright © 2018 by Xin Dai, all rights reserved. For my family. Table of Contents List of Tables…………………………………………………………………………..v Acknowlegments……………………………………………………………………...vi Dissertation Overview…………………………………………………………………1 Chapter One: Privacy, Reputation, and Control: Public Figure Privacy Law in Twenty- First Century China…………………………...……………………………………….8 Chapter Two: Legal Regulation of Networked Falsehoods: A Comparative Perspective………………………………………………..………………………...105 Chapter Three: Toward a Reputation State: China’s Social Credit System Project………………………………………………………………………………210 iv List of Tables Table 1.1: Four Approaches to Regulating Public Figure Privacy, and Examples…...23 Table 1.2: China’s Status-Based Public Figure Privacy Regime……………………..61 Table 3.1: Four Paradigms of Government Strategies to Use Reputation…………..234 v ACKNOWLEDGMENTS Writing the acknowledgments section is widely recognized as the best part of writing a dissertation. To make sure the best of the best part is saved for the very last, let me say first that, with utmost sincerity, all errors are mine. Generally speaking, thanking people for contributing to one’s own written work can be a clever way to imply that others bear secondary liability for such work’s shortcomings. But that really is not what I mean with the below. With that caveat, I want to thank first Professor Tom Ginsburg and Professor Lior Strahilevitz for advising me on this dissertation project. Their own scholarship has in many ways inspired the entire project, and their always thoughtful and enlightening comments and suggestions have significantly shaped the agenda, structure, and presentation of the three articles included in these pages. Importantly, their kindness, patience, and generosity have also motivated me to strive to finish this dissertation sooner than later; I constantly blame myself for having diverted so much of their precious time from being put to other more socially productive use. One other factor motivating me not to drag my JSD studies any longer is the new policy adopted by the University of Chicago Law School last summer that JSD students no longer get tuition waivers if they do not finish after five years in the program. Given that financially I should be able to afford the Chicago JSD tuition (not substantial as compared with the JD tuition, to be fair) for another year or two, the new policy from my perspective is more in the nature of a nudge rather than a hard push. Here I am providing a case that attests to the effectiveness of such nudge. vi Aside from its paternalistic policies, there are many other things about this Law School, allegedly ruled by libertarians, that I am deeply grateful for. Professors Daniel Abebe, Chris Fennell, Anup Malani, Tom Miles, and other faculty members at the Law School have helped me with the dissertation project in various ways, such as pointing directions, answering specific questions, and commenting on drafts. More generally, having the opportunity to closely observe how Chicago scholars operate in and outside of the classrooms and workshops on a daily basis is such an invaluable experience that, were I asked to, I would have been more than happy to pay out of pocket for it, perhaps at least in the amount of the JSD tuition. A truly humbling place, the Law School has reminded and will continue to remind me in the years to come of how far an intellectual distance I still have to travel from where I am to where I should aspire to be. Besides other kind assistance, I thank Dean Richard Badger for his help five years ago that made it possible for me to study in the JSD program. To keep the story vague and suspicious enough, when I first considered applying for Chicago’s program in 2013 I was technically not eligible; Dean Badger sorted something out so that I applied and got in, and nothing he did then, I think, was illegal. This opportunity for me to study in Chicago has also led to much-treasured friendship, especially that with my fellow JSD students, whose presence was most indispensable at the lunch workshops because that had me reassured that I was not regularly crashing faculty-only parties. Numerous friends in the academia back in China have, over the years, shared with me their expertise and thought on issues related to this dissertation. To name names (and not to miss anyone) is too difficult, so let me find an excuse for not doing so: In vii China, law journal editors almost universally edit out the acknowledgments from the articles in their published form, and as a result my contribution to my friends’ work rarely gets printed. Hopefully that somehow mitigates the injustice I am doing to them here. Special thanks are due, nonetheless, to Professor Zhu Suli, for his inspiration and encouragement over all these years, and to Professor Sang Benqian, for chaperoning me through the start of my academic career and making it so much easier than it would otherwise have been. Without the generous help from my colleagues and students at the Ocean University of China, I cannot imagine how I would have been able to juggle through the past five years my teaching responsibilities and the JSD work. Through the last thirty years, my parents have unconditionally and in all ways possible supported me to pursue my interest, which is going to school. I can never do enough to pay them back. They probably are happier now that I am finally not registered somewhere as a student anymore. I will just keep hiding from them the truth that a job in the academia, in fact, is not so much different from being a student for the rest of one’s life. My wife and in-laws joined my support team before I started working on the JSD. The sacrifice they have since made for me wakes me up at night,1 as I constantly wonder for what do I deserve their selfless love. My wife, in particular, suspended her promising career in finance to move to Chicago with me in those two years I stayed in residence. Through attending a humanities program at the English Department of the 1 Figuratively, as I generally sleep quite well. viii University, she became more determined that finance is her thing. Heartfelt thanks to the English Department to absolve me from feeling guilty to my family for not choosing to work for a better-paying job. My daughter was born in the middle of my second year in the JSD program. She has since added tremendously to the workload all members of our family have to share among ourselves. I, of course, have shouldered only the least substantial part. But still for the past three years or so my daughter has distracted me quite much from focusing on my dissertation work, because most of all she is just too cute for me to ignore. That said, there are probably two things I should thank my daughter for: First, time spent with her must have generally contributed to my mental health; second, every time after playing with her for say an hour or so I become so eager to return to my desk and work. ix DISSERTATION OVERVIEW This J.S.D dissertation consists of three articles that critically examine a series of important and intriguing institutional developments in contemporary China in relation to its regulation of the social and informational practices of reputation. With the rise of powerful technologies that have dramatically augmented the human society’s collective memory, the economic and political stakes in who gets a good reputation and who gets a bad one are growing ever higher. Scholarly literature in law and social science for the most recent decade has considered the proliferation of reputation information and reputation systems as driven primarily by market and technological forces, with practices such as credit reporting and consumer feedback being the paradigmatic and most popularly referenced examples. Through such a market-centered lens, the making and breaking of a person or an entity’s reputation are dependent to the greatest part upon how such reputation subject’s information becomes accessed and processed by other players in the relevant business and social transactional context. Where the market-based reputation systems function well, both theories and real- world experiences have established that they improve efficiency in the broader socio- economic system in which they are embedded. But since the reputation market from time to time could “fail,” at least in the sense that many in the society may find unsatisfactory or even objectionable the pattern in which good and bad reputation ends up being allocated, the question of whether and how legal intervention is needed for addressing those apparent failures will then naturally arise to become topical in public 1 discourse. In fact, notwithstanding the dominance of the market-centered discourse in recent literature, the law has never been absent from the scenes of reputation. For centuries, legal regulation has cast its shadow over reputation by policing boundaries for the various types of underlying informational and social practices. In modern Western societies, for example, the two best-known pillars of the legal structure that regulates reputation must be the law of defamation and that of privacy. Defamation law generally seeks to address a range of information problems that can be caused by falsehoods. As it concerns reputation, such regulation conceivably answers to such common problem that some who “deserve” a better name fall victim to attacks by falsehoods, whereas others, having little “actual” ground for a good name, nonetheless manage to procure one through misleading self-promotion or utter lies.