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EPIC --- Privacy and Human Rights Report 2006

People's Republic of China

Constitutional Privacy Framework

There are limited rights to privacy in the Chinese Constitution. Article 38 states that the personal dignity of citizens of the People's Republic of China (PRC) is inviolable and that insult, libel, false accusation or false incrimination directed against citizens by any means is prohibited.[1691] Articles 37 and 39 define, respectively, the protection of freedom of the person and the residence. Article 40 provides for the freedom and privacy of correspondence of the citizen.[1692]

Despite these provisions and those set out in more detailed laws, the Chinese government itself admits that it has room for improvement in applying any laws fairly and systematically. "The Chinese society is now in the process of transition from too much emphasis on the rule of person and insufficient emphasis on the rule of law to establishing concept of the rule of law, from supremacy of the power to supremacy of the law."[1693] In 2006, “[t]he party and state exercised strict political control of courts and judges. A lack of due process and new restrictions on lawyers further limited progress toward rule of law.”[1694] China exerted stricter controls on the press, Internet, academics, lawyers, and NGOs during 2006. Domestic observers believe that these constraints will remain in place at least through the 2008 summer Olympics being hosted by Beijing.[1695]

China has promised to ensure human rights in the amendment of its Constitution.[1696] The amendment reflects a growing awareness of human rights concerns. However, the legal system, with its vague protections and the questionable independence of its judiciary, remains a source of human rights violations.[1697] The Congressional-Executive Commission on China found that China had made limited progress in human rights related-issues.[1698]

Privacy

China's Central South University recently released a report that indicates an increase in expectations of privacy in China. Earlier attitudes toward privacy were shaped by traditional living arrangements whereby families of several generations often lived together in small homes.[1699] The study notes that the average living space for urban Chinese had risen from 3.6 square meters in 1978 to 11.4 square meters by 2003. This increase has played an important role in fostering expectations of privacy within the family. A number of academics are going so far as to call openly for stronger privacy laws.[1700]

Statutory Rules on Privacy

Article 101 of the General Principles of Civil Law (1986) provides a "right of reputation" to citizens and corporations, stating "[t]he personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited."[1701] Article 246 of the provides a further basis for the protection of the right, stating "[t]hose openly insulting others using force or other methods or those fabricating stories to slander others, if the case is serious, are to be sentenced to three years or fewer in prison, put under criminal detention or surveillance, or deprived of their political rights."[1702 ]

The Law on the Protection of Minors (1991) provides that "no organization or individual may disclose the personal secrets of minors" and "with regard to cases involving crimes committed by minors, the names, home addresses and photos of such minors as well as other information which can be used to deduce who they are, may not be disclosed, before the judgment, in news reports, films, television programs and in any other openly circulated publications."[1703] In a recent case, a high-school principal in Shanghai showed a videotape of two students kissing in a classroom. The teenage couple, humiliated by the incident, launched a lawsuit for invasion of privacy. They lost their court action, but won considerable public sympathy.[1704]

The Law on the Protection of Rights and Interests of Women (1992) provides that "women's right of reputation and personal dignity shall be protected by law. Damage to women's right of reputation and personal dignity by such means as insult, libel or giving publicity to private affairs shall be prohibited."[1705]

Recently, the police in Shenzhen organized a parade of 100 prostitutes, pimps, madams and their customers.[1706] Government authorities planned the event to kick off a two-month anti-prostitution campaign. The shackled defendants were marched through Shenzhen's Shazui neighborhood in government-issue yellow shirts and black pants. Photos by local journalists showed the women trying to cover their faces. However, police began calling out the names and addresses of each alleged offender to a crowd of 1,000 or so, announcing a 15-day sentence and ushering them to waiting prison vans.[1707] Several regional state-run papers on their websites condemned the move as an ineffective, unacceptable violation of privacy.[1708] "The police may have had good intentions, but what they did was illegal," said Song Yixin, an attorney with a Shanghai law firm, citing a regulatory change in the 1980s that banned public humiliation of suspects.[1709]

The Law on Lawyers (1996) requires lawyers to protect the personal secrets of their clients;[1710] the Law on Statistics (1983) provides that data collected from investigations shall not be disclosed without the consent of data subjects;[1711] and, the Provisional Regulations Relating to Bank Management (1986) provide that all information concerning the savings of clients shall not be disclosed.[1712]

These provisions taken together provide a minimum level of protection for the privacy of the citizen. However, in practice there has been a degree of confusion in applying these provisions in cases concerning privacy. Consequently, the Supreme People's Court has issued two general judicial interpretations regarding the application of The General Principles of Civil Law to privacy. In Opinions on Several Questions concerning the Implementation of the "General Principles of Civil Law of the PRC" (1998) the Court held:

The cases in which a person discloses personal secrets in written or oral way, or fabricates facts to publicly vilify the personal dignity, or damages the reputation by such means as insults and defamation of the others, and these acts have caused a certain negative impact on the persons concerned, shall be treated as an invasion of the right of reputation.[1713]

There is no general data protection law in China and very few laws that limit government interference with collection, use and disclosure of personal information. Furthermore, there are no laws or regulations that limit the ability of Internet Service Providers (ISPs) in using and distributing personal data gathered through the Internet.

Surveillance

China has had a long-standing policy – dating back to the 4th Century B.C. – of keeping close track of its citizens. Even in those early times, many Chinese provinces were often successful in keeping records of their whole populations, so that they could be taxed and conscripted: "The state had the surname, personal name, age and home place of every subject and was also able to ensure that nobody could move far from home without proper authorization."[1714]

China’s law states that the "freedom and privacy of correspondence of citizens are protected by law."[1715] Furthermore, warrants are required before law enforcement officials can search premises. However, this requirement is frequently ignored; moreover, the Public Security Bureau and prosecutors can issue search warrants on their own authority without judicial consent, review, or consideration.[1716]

China's General Principles of Criminal Law include Article 252, which states that "[t]hose infringing upon the citizen's right of communication freedom by hiding, destroying, or illegally opening others' letters, if the case is serious, are to be sentenced to one year or less in prison or put under criminal detention."[1717] Article 245 also provides that "[t]hose illegally physically searching others or illegally searching others' residences, or those illegally intruding into others' residences, are to be sentenced to three years or fewer in prison, or put under criminal detention."[1718]

"During the year, authorities monitored telephone conversations, facsimile transmissions, e-mail, text-messaging, and Internet communications. Authorities also opened and censored domestic and international mail. The security services routinely monitored and entered residences and offices to gain access to computers, telephones, and fax machines. All major hotels had a sizable internal security presence, and hotel guestrooms were sometimes bugged and searched for sensitive or proprietary materials."[1719] The growing number of Chinese Internet sites accelerated the government’s effort to tighten control on topics of discussion that are subject to monitoring.[1720]

China's Internet regulations and legislation are guided by the principle of "guarded openness" – seeking to preserve the economic benefits of new information and communication technologies, while guarding against foreign economic domination and the use of technology to coordinate anti-government activity.[1721] According to Human Rights Watch, China has enacted at least 60 sets of regulations aimed at controlling Internet content – or access to content outside of China – since commercial Internet accounts were first authorized in 1994.[1722]

To carry out the task of regulating the Internet, the Bureau of State Security and the provincial and municipal state security bureaus began retiring older personnel and recruiting large numbers of university students and graduate students to man their cyber police force. Most of the new cyber-police are computer science graduates with computing and Internet skills. The main task of the cyber police is to inspect and control the Internet. They continuously search Web sites and critical nodes within Web sites (particularly online discussion forums) and block or shut them down whenever they come across content the government disapproves of, including potential state secrets, “anti-Party and anti-socialist speech” and criticism of the country’s leadership.[1723]

In recent years, the Chinese government has spent huge sums buying cutting-edge tools from foreign companies to set up a powerful and unprecedented system to control and monitor the Internet.[1724] The Western trade journal Security World predicts a 20 percent annual increase over the next few years in China’s expenditure on “security,” a roundabout term for the Chinese government’s control of the Internet.[1725]

China's Ministry for Public Security (MPS) passes all international connections through proxy servers at official gateways. Numerous multinational telecommunications giants, including US-based Lucent, Motorola, and Sun Microsystems, Germany-based Siemens, Canada-based Bell Northern Research and Nortel Networks, have cooperated with the Chinese government in introducing these technologies to China, with Cisco Systems providing a large proportion of the routers and firewalls in China’s network.

MPS officials identify individual users and content, define rights, and carefully monitor network traffic into and out of the country.[1726] China’s 30,000 strong Internet police force is dedicated to specifically monitoring China’s Internet traffic.[1727] Derisively termed the "Great Firewall" by activists and journalists worldwide, the Ministry of Information Industry also uses the firewall to periodically filter access to Western websites, particularly media organizations, such as the Washington Post and Voice of America;[1728] human rights organizations, such as Amnesty International; or any other website deemed subversive.[1729] Recently, the government has taken public steps to relax filtering on a case-by-case basis.[1730]

The pace and scale of the development of the Internet has reduced the significance of the Great Firewall. Economic modernization is leading to exponential growth in the demand for international bandwidth and the sheer volume of Internet traffic today poses a serious challenge to state control at the network level. China observers hold out the existence of many anti-government postings on the Internet as evidence that censorship regulations are inconsistently enforced. However, heavy restrictions on international connectivity remain a key principle in China's nascent Internet security strategy and penalties for Internet-related offences include life imprisonment or the death penalty.

Rather than relying solely on a national intranet, separated from the global Internet by a massive firewall, China is now building surveillance intelligence into the network, allowing it to "see," "hear" and "think."[1731] Content-filtration will shift from the national level to millions of digital information and communications devices in public places and people's homes.[1732] This project is dubbed the "Golden Shield." The technology behind Golden Shield is complex and is based on research developed largely by Western technology firms. The Ministry of Public Security required Chinese Internet service providers to install “black boxes” monitoring devices dedicated to tracking the content and activity of individual e-mail accounts. The "black box" device is derived from technology previously used in airline cockpit data recorders, and broadly similar to the Carnivore system developed by the US government.[1733] Once attached to a server at the ISP, Carnivore works by intercepting all incoming transmissions and then parsing out pertinent material, based on keywords provided by the administrator. Chinese Internet police would use the black box technology to monitor dissidents and collect evidence on illegal activities.[1734] Human rights advocates express concern that the Golden Shield project combines Internet filtering with others forms of surveillance technology, such as cameras with face-recognition software, fingerprint databases, and speech-recognition software to monitor telephone conversations, and may be used to create a computerized national network of citizens in the future.[1735]

Chinese authorities are also working with technology experts at Shenzhen University to develop an e-mail filtration system that is able to detect and delete “unwanted” e-mails without the recipient’s knowledge or consent. The Ministry of Public Security has also been involved in creating fake proxy servers to conduct surveillance of surfers who try to circumvent official firewalls.

Microsoft laboratories based in China are carrying out research on software that can analyze the behavior of Internet users with precision and draw up a profile of them.[1736] Microsoft is working on software capable of guessing an Internet user’s age, sex and even geographic origin by analyzing their surfing habits. It would enable verification and clarification of the information voluntarily provided by Internet users when registering for online services. The study says the information would be acquired by analyzing the browser cache and cookies on the Internet user’s computer. This Microsoft study comes amid efforts by the Chinese authorities to combat online anonymity.[1737]

Freedom of association remains tightly controlled. Although the law provides for freedom of association, the Chinese government restricts this right in practice.[1738] All social organizations – from book clubs to congregations and visiting relatives – must be reported and registered with the Ministry of Civil Affairs. Any group that operates without registering risks prosecution.[1739] Failure to notify local authorities concerning visiting guests is also punishable by fine.[1740] Labor unions remain illegal.[1741] Government authorities systematically monitor[1742] some individuals and groups more closely than others, including advocates of democratic reform,[1743] human rights activists,[1744] minorities,[1745] and members of Falun Gong.[1746]

The Chinese government created a task force to increase surveillance over NGOs, especially those with links overseas, with the aim of blocking NGOs from fomenting political change.[1747] Since 2005, the number of registered NGOs in China has increased substantially. NGOs are required to register with the government. To register, an NGO must find a government agency to sponsor the NGO, have a registered office, and hold a minimum amount of funds.[1748]

China is currently installing surveillance cameras within its cities. Shanghai alone has 200,000, and plans to double that number within five years. The city of Guangzhou has budgeted $26 million US to install security and traffic-monitoring cameras on all its main streets. Beijing, where road cameras, equipped with night-vision capabilities, are paired with radar guns and can snap the number plates of speeding motorists at any time of day or night. Drivers are then notified of their infractions via text messages sent to their mobile phones.[1749]

Medical Privacy

Chinese citizens are increasingly asserting their privacy rights. Several privacy lawsuits have been filed in Chinese courts. In one case, a farmer sued a local hospital for plastering his X-rays on hospital brochures. In another case, a 22-year-old single woman won $1,200 in a privacy suit in Xinjiang after a doctor allowed 20 interns to witness her abortion.[1750]

The Practicing Physician Law requires that doctors not reveal health information obtained during treatment. Doctors who violate the law face criminal penalties. In May 1999, the Ministry of Health, with the approval of the State Council, published an administrative order declaring that personal information about HIV/AIDS sufferers be kept secret and that the legal rights and interests of those people and their relatives should not be infringed. In 2001, Ministry of Health officials again called for more attention to the protection of the right to privacy of HIV/AIDS patients, following a court ruling that a hospital damaged a patient's reputation by releasing false HIV-related information about her.[1751]

The Maternal and Child Health Care Law requires premarital and prenatal examinations to determine whether couples have acute infectious diseases or certain mental illnesses (not including mental retardation) or are at risk for passing on debilitating genetic diseases. Based on medical advice, the Ministry of Health can recommend sterilization or abortion. The law forbids the marriage of persons with certain acute mental illnesses, such as schizophrenia. If doctors find that a couple is at risk of transmitting disabling congenital defects to their children, the couple may marry only if they agree to use birth control or undergo sterilization. The law stipulates that local governments must employ such practices to raise the percentage of healthy births. Media reports publicized the forced sterilization of mentally challenged teenagers in Nantong, Jiangsu Province.[1752]

No laws criminalize private homosexual activity between consenting adults. Societal discrimination and strong pressure to conform to family expectations deterred most gay individuals from publicly discussing their sexual orientation. Published reports stated that more than 80 percent of gay men married because of social pressure. In what officials said was a campaign against pornography, authorities blocked the overseas Web site gaychinese.net for three months. Other Internet sites on gay issues that were not sexually explicit were also blocked during the year.[1753]

Financial Privacy

In 2006, the People’s Bank of China (PBOC), China’s Central Bank, developed a database that links up information on consumer credit. The nationwide database system includes credit records for 340 million Chinese residents, and covers 97.5 percent of all consumer loans granted by Chinese banks, worth 2.2 trillion yuan (US$271 billion). It is capable of generating personal credit reports that will provide information on a person's borrowing from different banks, including credit card transactions.[1754] The bank plans to include such information as tax payments, legal disputes and social security payments.[1755] Some individuals are worried about PBOC holding such information. Although most Chinese appear to believe the police and central government have their best interests in mind, they're also increasingly worried about data leakage by corrupt officials.[1756]

The Chinese website Souren, or "personal search," and many of its competitors advertise access to 90 million ordinary people's incomes, marital status and other sensitive information for as low as 12 cents per request. Many believe government departments are to blame for misappropriation of data. Authorities with access to personal information sell it to commercial entities seeking potential customer data.[1757]

National Identity System

Since 1985, all Chinese citizens over the age of 16 have been required to carry identification cards issued by the Ministry for Public Security. Identification cards include name, sex, nationality, date of birth, address and expiration date, which varies depending on the age of the cardholder. The ID cards can be used as driver’s licenses, library cards, storage of digital certificates or used to update the government on any changes relating to contact information. China’s ID cards are also used to monitor underage drinking and illegal movement of its citizens.[1758]

The Law of Citizen Identification Cards stipulates that no organization or individual has the right to check or hold a citizen's ID card except for the police, who are required to keep confidential any personal data obtained from the ID cards.[1759] However, public security agencies have the right to demand the production of identification at any time.[1760] Failure to register for an ID card, forging or otherwise altering a residence registration, or assuming another person's registration are all prohibited by law and punishable by fines. The law also mandates that citizens use the cards for such events as opening a bank account, purchasing flight tickets, and registering a marriage.[1761]

There have been several documented problems with Smart cards. There have been instances of card theft, forgery, identify theft and misappropriation of data. A Chinese wine merchant ran into a string of bad luck following the theft of his card. He was suspected of robbery, accused of evading a medical bill and even arrested, convicted and fined for jaywalking. It was later discovered that a number of imposters committed the crimes using his card number and details but managed to change the photo.[1762]

The US State Department reports that China's national identification system is being liberalized and the ability of most citizens to move around the country to live and work continues to improve.[1763] However, authorities have retained the ability to restrict freedom of movement through other mechanisms, and increased restrictions on movement during the year, particularly during politically sensitive anniversaries and to forestall Falun Gong demonstrations.[1764]

Censorship

It is well documented that the Chinese government is committed to monitoring media – online and in more traditional channels – for information that might harm unification of the country, endanger national security, or subvert government authority.[1765] In February 1999, the government announced the creation of the State Information Security Appraisal and Identification Management Committee that "will be responsible for protecting government and commercial confidential files on the Internet, identifying any net user, and defining rights and responsibilities. . . . [t]he move is intended to guard both individual and government users, protect information by monitoring and keep them from being used without proper authorization."[1766] In 2004, the Chinese government continued to impose restrictions on news reporting and publishing[1767] by censoring publishers and punishing unauthorized publishers. Authorities continuously oppressed the expression of opinions that the Party deemed objectionable.[1768]

In addition to Internet filters, which are dynamically updated and block sites on topics ranging from politics to religion to entertainment, the government monitors discussion forums in real time.[1769] A recent study documented in detail government monitoring and censorship of discussion forums, where controversial postings are removed within minutes or hours.[1770] Both the study and other commentators question how long it will be possible to maintain such labor-intensive controls as Internet use increases in China,[1771] especially since people are reportedly successful in circumventing Internet censorship mechanisms to access foreign news sources.[1772]

The Internet Information Services Regulations controls Internet usage. Promoting "evil cults" is prohibited, as was providing information that "disturbs social order or undermines social stability." One regulation, covering chat rooms, requires all service providers to monitor content and restrict controversial topics. Content providers must keep files of what they post and who reads it, for 60 days. Other regulations make it illegal to store, process, or retrieve information deemed to be "state secrets" from international computer networks. Authorities do not consider persons who receive dissident e-mail publications responsible, but forwarding those messages to others is illegal.[1773]

As of 2007, 50 people have been placed in detention for posting messages or articles on the Internet that were considered subversive.[1774] Since May 2003, 17 have been tried and sentenced to terms of up to 14 years in prison. Chinese intellectuals have criticized the authorities for applying Article 105 of the Criminal Code, declaring "subversion" to be punishable with imprisonment.[1775] In a joint letter, 13 retired officials, academics and lawyers, called for the easing of censorship, new laws to protect press freedom and the reopening of Freezing Point, a leading Chinese publication closed down by officials in the beginning of 2006.[1776]

Since 2003, China saw a 60 percent increase in the number of people detained or sentenced for Internet-related offences.[1777] Four student activists who posted essays critical of the government were given prison sentences of up to 10 years for subversion.[1778 ]Internet essayist Luo Yongzhong was sentenced to three years in prison after publishing articles on overseas websites calling for democracy and human rights.[1779] Reporters Without Borders named China "the biggest jail in the world for cyber dissidents," stating that the country has jailed over 48 persons for their Internet writing in recent years.

There have been several calls for the release of Shi Tao, a jailed Chinese journalist. Tao was arrested during the continuing crackdown on those who defend the memory of the Tiananmen Square victims. Tao was convicted in 2005, with evidence provided by search engines that worked in cooperation with the Chinese Government.[1780] "The Chinese authorities must quickly review the decision to impose a 10-year prison sentence on this journalist," Reporters Without Borders said.[1781] Tao’s lawyer, Guo Guo-Ding, famous for taking human rights cases, stated that the search and seizure and subsequent arrest were illegal. As a result, Ding’s license to practice law was suspended for one year by Shanghai's Department of Law. Ding was later put under house arrest, and one of his co-workers had to take over the case.[1782]

The Computer Information Network and Internet Security, Protection and Management Regulations stipulate that individuals must be registered, that transferring accounts is prohibited and all those engaged in Internet business are subject to security supervision, inspection, and guidance, including assisting in incidents involving law violations and criminal activities involving computer information networks."[1783] Another provision of the regulations require internet café patrons to register with "software managers" and produce a valid ID card to log on.[1784]

As signatories to the "Internet News Information Service Self-Discipline Pledge", major Chinese online news and information providers, including the largest websites sohu.com and sina.com.cn, agreed to cooperate with the authorities to regulate the Internet and "resist firmly the transmission of information that violates the fine cultural traditions and moral codes of the Chinese nation."[1785] A similar statement was signed by more than 300 companies offering Internet-related services in China. International signatories of the pledge ("not to produce or disseminate news . . . likely to jeopardize national security or social stability") include Yahoo, which provides e-mail services to many of China's estimated 87 million Internet users.[1786]

Monitoring of Cybercafés

By law, all Internet cafés must be licensed. However, due to the labyrinthine licensing requirements and registration – for both the operator and the user – and high demand, it is estimated that more than 60 percent of China's 200,000 plus Internet cafés remain unlicensed. Licensed cybercafés require patrons to provide identification and register each time they visit. It is unsurprising that a significant percentage of China's Internet users log on – using prepaid, anonymous phone cards – through unlicensed Internet cafés.[1787] These cafés offer inexpensive access and an unregulated degree of freedom that might not otherwise be possible.[1788]

More than 1,700 Internet cafés in Chongqing operate "security management" software distributed by the local bureau of public security. The program filters materials deemed to be objectionable by the government and is capable of "capturing" computer screens and "casting" them onto screens at local public security bureaus.[1789] The program was designed in part to keep "unhealthy" information, such as cults, sex, and violence, off the Internet. Local police departments stated that strengthening the administration and control over the Internet cafés would benefit the healthy development of this fledgling industry.

China began to license Internet café "chains" that would serve as an alternative to the privately held cafés that were the target of previous crackdowns.[1790] This has been widely viewed as an attempt to promote consolidation in to the hands of fewer, larger, easier-to-control organizations. The Xinhua News Agency, the Chinese state news agency, reported that the government shut down 8,600 "illegal" Internet cafés between March and April 2004.[1791]

In another move to control online browsing in 2005, the Beijing Internet Safety Service Centre of the Beijing Public Security Bureau recruited 4,000 web watchdogs to put cybercafés and Internet service providers in Beijing under surveillance.[1792] Human rights groups estimated that the Chinese government employs 30,000 people to monitor Internet traffic.[1793] More than 50 Internet users are serving prison terms for posting opinions online in 2007.[1794]

In June 2007, China’s State Administration for Industry and Commerce announced that no new Internet cafés will be licensed. Chinese officials are concerned that online material is harming young people.[1795] Authorities believe the internet is giving children access to violent games, sexually explicit material and gambling websites. Regulators will carry out an industry-wide inspection to see whether the Internet cafés are improperly renting out their licenses or failing to register their customers' identities.

President Hu Jintao and the Communist Party political bureau met on April 23, 2007 to discuss how to improve control over the Internet, saying they wanted to “purify” it. The rapid growth in Internet use in China is worrying the authorities and they have been trying to regulate it by all means possible.[1796]

The monitoring of Internet activity has led to numerous arrests and long jail sentences for online activists. However, despite near-constant government monitoring and filtering, China's Internet usage continues to surge. As of 2007, more than 130 million regular Internet users were estimated, up 84 million from 2004.[1797]

In 2005, Kong Youping and Ning Xianhua were arrested and convicted as cyber-dissidents. They were sentenced to 15 and 12 years in prison for posting articles online in support of the Chinese Democratic Party (CDP), an underground opposition group.[1798] He Depu, a member of CDP, continues to serve eight years imprisonment for signing an open online letter that appealed for political reform in November 2002.[1799] The Chinese government also arrested Zhang Lin, a cyber-dissident, for posting lyrics of a punk song.[1800] Human Rights in China (HRIC) questioned whether song lyrics constitute a serious threat to national security.[1801]

The number of bloggers in China has grown from a few thousand in 2002 to anywhere from 100,000 to half a million in 2004 to millions in 2007.[1802] In March 2004, the government temporarily shut down four leading blogging sites – Blogbus.com, Blogcn.com, Blogdriver.com and Typepad – for allowing politically sensitive content to be posted.

In June 2005, the Chinese government announced a new initiative that closes down all non-officially registered websites and blogs.[1803] The new initiative was announced in a Ministry for the Information Industry decree. The initiative required all China-based websites to register by March 20, 2006. According to Reporters without Borders, the requirement was designed to identify those who are responsible for site contents and to control information that "endanger[s] the country."[1804] However, the Internet Society of China, a subsidiary of the Ministry of Information Industry recently introduced a bill where blog services will be encouraged but not forced to adopt a system for registering bloggers by their real names. Under an initial draft, it would have been mandatory for bloggers to register under their real names.[1805]

China’s rural residents’ access to telecom infrastructure is lacking, but greater investment in access are planned. More than 20 percent of urban residents have access to the Internet, compared with only 3 percent in the countryside, according to China Internet Networks Information Center, a quasi-government organization. The country is now drafting its first telecom law and will soon set up its first universal service fund, which subsidizes telecom operators for providing services in rural areas.

China also plans to issue new rules to keep mobile phones in line. According to news reports, the government plans to issue rules to require people buying pre-paid mobile phone cards to submit proof of identity: over half of China's mobile-phone accounts are not registered in any name, making it easy for criminals, or dissidents, to use them without being identified by the police.[1806]

Unsolicited Commercial E-mails ("Spam")

The China Internet Network Information Center, reported that 130 million Chinese are online – which is over double the amount of users since 2002. About 70 percent of Chinese Web users are under the age of 30.[1807] The Internet Society of China, a Beijing trade association, reported that China received 46 billion junk e-mails – 30 percent of all e-mail – in 2003, making it second to the US in spam receipt. China has no spam laws.[1808] Despite a lack of spam legislation, the Ministry of Information Industry recently handed out a number of undisclosed punishments against some of China's top wireless value-added service providers because of coercive ordering and group sending of spam text messages. More than 30 information service providers have been included in this new round of sanctions.[1809]

Anti-spam organization SpamHaus listed China as the second-largest originator of spam in the world. China has recently announced its intention to join the U.S. and U.K. led London Action Plan on Spam Enforcement Collaboration, a group of 29 governmental agencies and 17 private sector groups promoting information sharing and evidence exchange. The London Action Plan is an effort to increase spam enforcement cooperation among countries. Members provide points of contact to their counterparts in other countries and work to improve coordination and communication among participants to find spam operations.[1810]

Open Government

Freedom of Information (FOI) legislation within Chinese local governments has developed substantially since 2004. On January 20, 2004, Shanghai, home to 16 million people, adopted "The Provisions of Shanghai Municipality on Open Government Information." This was China's first provincial-level open information legislation, and it could "represent the most comprehensive framework to date in China for accessing government-held information."[1811] The Shanghai provisions provide that citizens, legal persons and other organizations have the right to request "government information" from government agencies, including information about individuals themselves.[1812] Furthermore, the law imposes a legal obligation on government agencies to disclose information that is not covered by six exemptions for information.[1813] The legislation is significant not only for advancing the concept of open government information in China, but also because of the inclusive process – that included posting a draft for public comment – by which the Shanghai provisions were formulated. Eleven local governments have introduced FOI legislation since 2004.

The provisions of China’s new federal Disclosure of Government Information law were adopted on January 17, 2007, and will come into force on May 1, 2008.[1814] Government information that will be disclosed includes: information concerning the vital interests of citizens, legal persons or other organizations; information that should be widely known by the general public or concerns the participation of the general public; information reflecting the structural establishment, duties, procedures for handling affairs and other situation of the administrative organ; and other information that shall be voluntarily disclosed by the administrative organ as prescribed by laws, regulations and the relevant state provisions.[1815]

Open Government Information (OGI) Regulations puts the discretion of disclosure into the hands of government agencies. The scope and timeliness of disclosure is uncertain and is not guaranteed by law. Freedom of information includes proactive disclosure by the government, and requests from the public. Freedom of information is allowed by legislation and a review system is provided.[1816]

International Obligations

On February 28, 2002, China ratified the International Covenant on Economic, Social and Cultural Rights but took a reservation on the right to freely organize and join trade unions. China still has not ratified the International Covenant on Civil and Political Rights, which its government signed in 1998.[1817] China has participated in APEC’s privacy initiative through its Privacy Subgroup, and was involved in the drafting of the Privacy Framework in 2004.[1818]

[1691] People's Republic of China Constitution (Constitution Act, 1993) Chapter II (Fundamental Rights and Duties of Citizens), Article 38, translation available at <http://www.usconstitution.net/china.html#Article38>.
[1692] Id. at Articles 37, 39-40.

[1693] Human Rights Achievements in China, April 9, 2000 <http://www.china-embassy.ch/eng/ztnr/rqwt/t138833.htm>.

[1694] US State Department Human Rights Report 2006 - China, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm>

[1695] Human Rights Watch World Report 2007 - China, available at <http://hrw.org/englishwr2k7/docs/2007/01/11/china14867.htm>.

[1696] Human Rights Watch World Report 2005 - China, available at <http://hrw.org/english/docs/2005/01/13/china9809.htm>; Congressional-Executive Commission on China, Annual Report (2004), available at <http://www.cecc.gov/pages/annualRpt/annualRpt04/index.php>.
[1697] Id.
[1698] Congressional-Executive Commission on China, Annual Report (2004), supra.

[1699] The Economist, “ The Long March to Privacy,” January 6, 2007.
[1700] Wang Zongyu, a law professor at People's University in Beijing, is one of the growing number of Chinese legal experts who are calling for laws to protect the people's right to privacy. He feels the trend in China is increased surveillance. The Chinese authorities are installing more and more cameras, because there are no laws or regulations to govern it. See Geoffrey York, “Smile, You’re on Communist Camera,” The Globe and Mail, June 23, 2005, at A3.

[1701] General Principles of Civil Law, Article 101, available at <http://www.abailaw.com/mingshang/mingfa-english.htm>. This right would Seem to roughly correspond with the American tort of invasion of privacy, as defined by Prosser, of placing a person in a false light in the public eye, See W. Prosser, The Law of Torts 863-866 (St. Paul: West Group, 5th ed. 1984).
[1702 ]General Principles of Criminal Law, Article 246, available at <http://www.cecc.gov/pages/virtualAcad/exp/explaws.php>.

[1703] Law on the Protection of Minors, Article 30; Zhu, supra.
[1704] York, supra.

[1705] Law on the Protection of Rights and Interests of Women, Article 39; Zhu, supra.

[1706] Mark Magnier “Campaign of Shame Falls Flat in China; Public Humiliation as Punishment Sets Off a Debate Over Individual Privacy and the Limits of State Intrusion,” Los Angeles Times, December 18, 2006 at A4.
[1707] Magnier, supra.
[1708] Id.
[1709] Id.

[1710] Law on Lawyers, Article 23; Zhu, supra.
[1711] Law on Statistics, Article 14; G. Zhu, The Right to Privacy: An Emerging Right in Chinese Law, supra.
[1712] Provisional Regulations Relating to Bank Management, Article 47; Zhu, supra.

[1713] Opinions on Several Questions concerning the Implementation of the ""General Principles of Civil Law of the PRC" at para. 140; Zhu, supra.

[1714] W.J.F Jenner, "China and Freedom" in D. Kelly and A. Reid, Asian Freedoms: The Idea of Freedom in East and Southeast Asia (Cambridge University Press, 1998).

[1715] Postal Law of the People's Republic of China 1987, at art.4, available at <http://www.worldlii.org//cgi-bin/disp.pl/cn/legis/cen/laws/pl1987110/pl1987110.html?query=privacy>.
[1716] US State Department Human Rights Report 2006 - China, supra.

[1717] Criminal Law of China, Part I, Chapter IV, Article 252 (October 1, 1997), available at <http://www.eastlaw.net/service/datacnlaw/code/criminal/criminal.htm>.
[1718] Id. at Part I, Chapter IV, Article 245.

[1719] US State Department Human Rights Report 2006 - China, supra.
[1720] Human Rights Watch World Report 2005 - China, supra.

[1721] G. Walton, China's Golden Shield: Corporations and the Development of Surveillance Technology in the People's Republic of China 9, (Rights and Democracy, 2001), available at <http://www.totse.com/en/privacy/pucc.html>.
[1722] Human Rights Watch, A Human Rights Watch Backgrounder (2001), supra.

[1723] He Qinglian, “The Hijacked Potential of China’s Internet” 2006. China’s Right’s Forum. Special Book Review 33, at 35.

[1724] Id. at 36.
[1725] Id. at 38.

[1726] Walton, supra at 9.
[1727] Richard Taylor, “The Great Firewall of China,” BBC News, January 6, 2006, available at <http://news.bbc.co.uk/2/hi/programmes/click_online/4587622.stm>.
[1728] See, e.g., J. Lee, "United States Backs Plan to Help Chinese Evade Government Censorship of Web," The New York Times, August 30, 2001, at A10. At other times, the Australian Broadcasting Corporation, The New York Times and the BBC have been blocked.
[1729] M. Cohn, "China Seeks to Build the Great Firewall; Controlled Modernization the Mantra," Toronto Star, July 21, 2001, at A01.
[1730] The Australian Broadcasting Corporation and The New York Times were separately removed from the "blacklist" after complaints to the PRC government. See, e.g., D. Miklovic et al., "Internet Shutdown: 200,000 China Cybercafes Shut in a Day," Gartner Group, June 25, 2002, available at <http://oracle1.cba.hawaii.edu/chismar/BUS615/Internet%20Shutdown.pdf>.

[1731] Walton, supra.
[1732] B. Rappert, "Assessing the Technologies of Political Control," 36(6) J. of Peace Research 741 (1999). The Golden Shield Project contemplates automated voice recognition through digital signal processing, distributed network video surveillance, and content-filtration of the Internet.
[1733] EPIC Carnivore FOIA Litigation page <http://www.epic.org/privacy/carnivore/>.
[1734] See, e.g., L. Weijun, "China Plans to Build Internet Monitoring System," China News Daily, March 20, 2001, available at <http://www.cnd.org/Global/01/03/20/010320-3.html>. For more on current discussions of Carnivore, see B. Krebs, "Groups Urge Ashcroft to Act On Carnivore, Privacy Issues," Newsbytes, May 3, 2001.
[1735] F. Guterl, "Surveillance," Newsweek, March 8, 2004.

[1736] “Concern about Microsoft research in China,” Reporters without Borders, June 1 2007. <http://www.rsf.org/article.php3?id_article=22379>.
[1737] Id.

[1738] US State Department Human Rights Report 2006 – China, supra.
[1739] M. Jendrzejczyk, "China: Human Rights and US Policy," Statement to Congressional Human Rights Caucus, May 15, 2001, available at <http://www.hrw.org/press/2001/05/chinastatement.htm>, eight members of a book club were arrested in May 2001 for failing to register with local authorities.
[1740] Regulations of the People's Republic of China on Administrative Penalties for Public Security, September 5, 1986.
[1741] China ratified the International Covenant on Economic, Social and Cultural Rights in February 2002, but reserved the right to freely organize and join trade unions.
[1742] For a discussion of possible modalities of class-based surveillance see J. Young, On the Fringe: State Surveillance and Differential Privacy Rights in Canada," Lex Informatica, April 2000, available at <http://www.lexinformatica.org/dox/panopticsort.pdf>.
[1743] In June 2000, authorities arrested Huang Qi, operator of a website on missing children at <http://www.6-4tianwang.com> for posting an article critical of the PRC leadership's handling of Tiananmen Square. On May 9, 2003, a Sichuan court sentenced Huang Qi to a five-year prison term on charges of subversion. See "Human Rights Defenders: Internet Dissenters," Human Rights Watch, 2003, available at <http://www.hrw.org/advocacy/internet/dissidents/7.htm>; see e.g. V. Pik-Kwan Chan, "Amnesty Says 200 in Prison over June 4," South China Morning Post, May 31, 2002.
[1744] No independent watchdog organizations were permitted in China, see Human Rights Watch World Report 2003 at "Defending Human Rights," available at <http://www.hrw.org/wr2k3/asia4.html#defending>.
[1745] Authorities monitor and regularly detain "splittist" activists in Tibet and Xianjiang, see Human Rights Watch World Report 2003, supra, at "Tibet," "Xinjiang."
[1746] T. Ee Lyn, "HK Bars More Falun Gong Members before Anniversary" Reuters, June 29, 2002, quoting one Australian Falun Gong member: "As soon as the authorities punched my name into the computer, [the Customs Officer] sent for guards right away and I was taken to a waiting room.” R. Callick, "Out of China to Outer Melbourne" Australian Financial Review, June 21, 2002, documenting the story of Zeng Zheng, a Falun Gong supporter, who was arrested when she tried to explain the movement to her parents in an email, which authorities intercepted.

[1747] US State Department Human Rights Report 2006 – China, supra.
[1748] Id.

[1749] “The Long March to Privacy” supra.

[1750] York, supra.

[1751] Id.

[1752] US State Department Human Rights Report 2006 - China, supra.

[1753] Id.

[1754] "China to Build National Database for Personal Credit Information," Xinhua News Agency, March 17, 2005.
[1755] “Consumer Credit Database Established,” People Daily Online, available at <http://english.people.com.cn/200601/17/eng20060117_236019.html>.
[1756] Magnier, supra.

[1757] China Daily “90% worried privacy divulged: survey” June 5, 2006. Available at: <http://www.chinadaily.com.cn/china/2006-06/05/content_608995.htm>.

[1758] “Hong Kong’s Smart Identity Card” 2003. 4(2) Asian-Pacific Law & Policy Journal 522.

[1759] "Civil Rights Protected in New Chinese Laws, Regulations," Xinhua News Agency, January 1, 2004, available at <http://www.china.org.cn/english/2004/Jan/83740.htm>.
[1760] "Regulations of the People's Republic of China Concerning Resident Identity Cards" Xinhua News Agency, May 7, 1984.
[1761] "One Million Beijingers to Face Problems as ID Cards Expire," Xinhua General News Agency, December 24, 2004.

[1762] Hong Kong’s Smart Identity Card” 2003, supra at 534.

[1763] US State Department Human Rights Report 2006, supra.
[1764] Id.

[1765] See generally, Human Rights Watch, Freedom of Expression and the Internet in China: A Human Rights Watch Backgrounder (2001), available at <http://www.hrw.org/backgrounder/asia/china-bck-0701.htm>. See also Revised Provisional Regulations Governing the Management of Chinese Computer Information Networks Connected to International Networks § 6, May 20, 1997, which prohibits connection to international networks except through approved "access channels," available at <http://web.archive.org/web/20020613133506/http://msnhomepages.talkcity.com/NonProfitBlvd/cnlawyer/netregu0.htm>.
[1766] "China Forms Information Security Oversight Committee," Xinhua News Agency, February 12, 1999.
[1767] Congressional-Executive Commission on China 2004 report. Supra.
[1768] Id.

[1769] J. Zittrain and B. Edelman, "Empirical Analysis of Internet Filtering in China," available at <http://cyber.law.harvard.edu/filtering/china/>. See also J. Zittrain and B. Edelman, "Internet Filtering in China," IEEE Internet Computing, March 1, 2003.
[1770] A Stroehlein, "Internet Censors in China Loosening Their Grip," May 23, 2003, available at <http://web.archive.org/web/20041010021247/http://www.ojr.org/ojr/world_reports/1053660077.php>.
[1771] Rand Center for Asia-Pacific Policy, "China and the Internet: A Game of Cat and Mouse?" available at <http://www.rand.org/nsrd/capp/newsletter/03/mar.html>.
[1772] Congressional-Executive Commission on China, Annual Report (2004), supra.

[1773] "China Enacts Sweeping Rules on Internet Firms," Reuters, October 2, 2000.

[1774] Reporters without Borders “Cyberdissidents imprisoned to date for their activities on the Internet” April 17, 2007. Available at. <http://www.rsf.org/rubrique.php3?id_rubrique=119>.
[1775] Reporters without Borders “China” June 22, 2006 <http://www.rsf.org/print.php3?id_article=10749>.
[1776] “War of the Words,” The Guardian, Feb 20, 2006, available at <http://www.guardian.co.uk/china/story/0,,1713317,00.html>.

[1777] M. Honan, supra.
[1778 ]"China Jails Four Internet Activists for Subversion," Reuters, May 29, 2002.
[1779] US State Department Human Rights Report 2003 – China, supra.

[1780] Reporters without Borders “Renewed call for release of Shi Tao after mother reads Tiananmen poem at Golden Pen Award” June 5, 2007 <http://www.rsf.org/print.php3?id_article=10749>.
[1781] Id.
[1782] “Shi Tao and Yahoo,” Human Rights in China, <http://www.hrichina.org/public/highlight/>.

[1783] “China Enacts Sweeping Rules on Internet Firms,” supra.
[1784] "US Embassy Beijing, Kids, Cadres and "Cultists" All Love It: Growing Influence of the Internet in China" (Beijing 2001), available at <http://web.archive.org/web/20030405111759/www.usembassy-china.org.cn/english/sandt/netoverview.html>.

[1785] G. Kim and N. Tim, "Freedom vs. Regulation: You May Think You Can Do Whatever You Want Online, but Are You Really as Free as You'd Like to Believe?," Internet Magazine, July 1, 2004.
[1786] "China's Internet Users Exceed 87 Million, People's Daily Online," August 11, 2004, available at <http://english1.people.com.cn/200408/11/eng20040811_152529.html>.

[1787] "China Launches Crackdown on 'Harmful' Internet Content," Yahoo News Singapore, May 1, 2002, available at <http://web.archive.org/web/20020807225418/http://sg.news.yahoo.com/020501/1/2otr6.html>.
[1788] The anonymity provided by Internet cafés hearkens to the use of "big-character posters" of an earlier era and provides a unique opportunity for Chinese citizens – particularly students – to express personal opinions.

[1789] Human Rights Watch, A Human Rights Watch Backgrounder (2001), supra. Called "Internet Police 100," the software comes in versions designed for home, cafés and schools.

[1790] "China Seen Tightening Control over Internet Cafes," Reuters, June 10, 2003, available at <http://in.tech.yahoo.com/030610/137/250dj.html>.
[1791] G. Kim and N. Tim, supra.

[1792] Shi Ting. "Search on for 4,000 Web Police for Beijing." South China Morning Post, June 17, 2005.
[1793] Neil Taylor. "Great Firewall Has Little Chance of Stopping Messages." South China Morning Post, July 6, 2004.
[1794] Id.; Amnesty International Report, China/Hong Kong, 2004.

[1795] “China bars new internet cafes,” Associated Press, June 4, 2007, available at <http://news.findlaw.com/ap/ht/58/06-04-2007/c21d00114c617805.html>.

[1796] “Government drops plan to ban anonymous blogging but imposes self-discipline,” Reporters without Borders, May 28, 2007, available at <http://www.rsf.org/article.php3?id_article=19411>.

[1797] “China bars new internet cafes,” supra.

[1798] "Two Cyberdissidents Handed down Harsh Prison Sentences," The Internet Under Surveillance, Reporters Without Borders, September 17, 2004, available at <http://www.rsf.org/rubrique.php3?id_rubrique=432>.
[1799] "Cyber-dissident He Depu Begins Third Year in Prison," The Internet Under Surveillance, Reporters Without Borders, October 4, 2004, available at <http://www.rsf.org/rubrique.php3?id_rubrique=432>.
[1800] Reporters Without Borders, "Cyberdissident Zhang Lin to Go on Trial for Posting Articles Including Lyrics to a Punk Song Online," supra.
[1801] Id.

[1802] Louisa Lim, “In China, Blogs Are Revolutionary Tool of Opinion,” March 7, 2006 <http://www.npr.org/templates/story/story.php?storyId=5250144>.

[1803] Reporters Without Borders, "Authorities Declare War on Unregistered Websites and Blogs" The Internet Under Surveillance, Internet Freedom Desk, available at <http://www.rsf.org/rubrique.php3?id_rubrique=433>.
[1804] Id.
[1805] “Government drops plan to ban anonymous blogging but imposes self-discipline,” supra.

[1806] “The Party, the People and the Power of Cyber-Talk,” The Economist, April 27, 2006 <http://www.economist.com/displayStory.cfm?story_id=6850080>.

[1807] Andrew Yeh, "Closely Monitoring Citizens' Internet Use, China Eyes Political E-Mail in Anti-Spam Plan," Privacy and Security Law Report, Vol. 3, No. 6, February 9, 2004, at 145.
[1808] Andrew Yeh, "China Now World's Number Two Spam Recipient, After United States," Privacy and Security Law Report, Vol. 3, No. 13, March 29, 2004, at 361.
[1809] “More Than 30 WVAS SPs Receive MII Punishment,” The China Technology News Source, June 7, 2007, available at
<http://www.chinatechnews.com/2007/06/07/5488-more-than-30-wvas-sps-receive-mii-punishment/>.

[1810] Jim Wagner, “China Joins Spam Fight” July 5, 2005, available at: <http://www.internetnews.com/security/article.php/3517626>.

[1811] J. Horsley, "Shanghai Advances the Cause of Open Government Information in China," April 20, 2004, available at <http://www.law.yale.edu/documents/pdf/Shanghai_Advances.pdf>.
[1812] The Shanghai Provisions define "government information" as information held in physical form by government agencies that is related to economic and social management and public services. The "right to know" does not appear in China's Constitution or any national law to date. However, the concept was recently cited in China's report "Progress in China's Human Rights Cause in 2003." See J. Horsley, supra. See also State Council Information Office, Progress on China's Human Rights Cause in 2003, March 31, 2003, available at <http://chineseculture.about.com/library/china/whitepaper/hr/blshr2003.htm>.
[1813] The six exemptions are: (1) a state secret, (2) a commercial secret, (3) an individual's private information, (4) related to a matter that is in the course of being investigated, discussed, or processed, (5) related to an administrative enforcement action that might influence the enforcement activity or endanger an individual's life or safety, or (6) otherwise exempted from disclosure by law or regulation.

[1814] Wen Jiabao “Research on Freedom of Information and electronic government in China,” May 28, 2007, available at <http://foichina.blogspot.com/search/label/FOI%20in%20China>.
[1815] Id.

[1816] Ben Wai “Differences Between 'Open Government Information' and 'Freedom of Information’,” May 23, 2007, available at <http://foichina.blogspot.com/search/label/FOI%20in%20China>.

[1817] Its first review by the Committee on Economic, Social, and Cultural Rights was planned for April-May 2005. Human Rights Watch, 2004, supra.

[1818] Symposium, "APEC Symposium on Data Privacy Implementation Mechanisms: Developing The APEC Privacy Framework," Santiago (Chile), March 2004. See also R. Tang, Privacy Commissioner for Personal Data, Hong Kong, "Asian Privacy at the Crossroads," IAPP Truste Symposium: Privacy Futures, June 10, 2004.