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"The Free Flow Of Information: Internet Law In The People's Republic Of China" by Ryan McParland


The Free Flow of Information:
Internet Law In The People's Republic of China

by Ryan McParland


Introduction

The People's Republic of China (hereafter referred to as the "the PRC") is the world's most populated country, its oldest civilization, and -- according to many observers -- is rapidly becoming the next superpower. This nation was founded on October 1, 1949 when communist leader Mao Zedong declared victory over the Kuomintang forces of General Chiang Kai-Shek. See Todd Kennith Ramey, China: Socialism Embraces Capitalism? An Oxymoron for the Turn of the Century: A Study of the Restructuring of the Securities Markets and Banking Industry in the People's Republic of China in an Effort to Increase Investment Capital, 20 House. J. Int'l L. 451, 452 (1998). After establishing control, Mao Zedong successfully set up a socialist system imposing strict controls over the lives of Chinese citizens. Many of these strict regulations were in place until the death of Mao Zedong in 1978.

Zedong's successor, Deng Xiaoping, focused on great economic and social reform. Under his leadership, the economy in the PRC became incredibly capitalist and market oriented. See Rob Sewell, China: The Death of Deng, http://www.marxist.com/Asia/roddeng.html (last visited April 3, 2011). This dramatic change would help to ensure the PRC's domestic and international growth. In 2010, the PRC replaced Japan as the world's second-largest economy in terms of Gross Domestic Product (GDP). Country Ranking by GDP, TRADING ECONOMICS, http://www.tradingeconomics.com/World-Economy/GDP-Growth-Rates.aspx (last visited April 3, 2011).

As the PRC's economy continues to grow and the PRC itself becomes a dominant member of the world's economy, its people have gained access to information previously unavailable to them. This access comes primarily from the Internet. See H. L. Fu & Richard Cullen, Media Law in the PRC (Hong Kong: Asia Law & Practice, 1996). Now, the PRC is faced with the challenging task of balancing the benefits and detriments of the Internet. Their attempt to do so has included the enactment of strict censorship regulations carrying severe penalties for violators. See John H. Taylor III, The Internet in China: Embarking on the "Information Superhighway" with One Hand on the Wheel and the Other Hand on the Plug, 15 Dick. J. Int'l L. 621, 625 (1997) (discussing the balance between allowing progress and allowing harmful content on the Internet).

The Internet in the PRC

The PRC's first computer network was not fully established until 1987. 11th Statistical Survey on the Internet Development in China (Jan. 2003), CHINA INTERNET NETWORK INFORMATION CENTRE, http://www.cnnic.net.cn/download/manual/en-reports/11.pdf (last visited March 31, 2011). This computer network could only be utilized for academic or research purposes. Id. The PRC central government did not allow commercial use of the internet until the mid-1990s. Id. However, in the past decade, the nation's Internet-using population has reached nearly 60 million people. China's Century: The Awakening of the Next Economic Powerhouse, pgs. 315-16 (Laurence Brahm ed. 2001)) With the rapid expansion of the Internet, the PRC's central government has a great need to establish order and stability in determining what it should allow its citizens to view.

This task, however, has proved to be incredibly difficult. The PRC's central government recognizes that in order for its country to continue to grow economically, the Internet must be ever present. The Internet allows for stable intra-country communication, a free flow of technologically based information, and constant access to infinite academic resources. These academic resources allow for the free flow of information. The PRC's central government at times feels threatened by this free flow of information. See Jin Xin, Who is Going to Protect the Government?, in Jin Xin, Zhongguo Wenti Baogao (Reports on China's Questions) 417 (Beijing: China Social Science Press, 2000). Therefore, the government has enacted many regulations in a desperate attempt to control the flow of information throughout the PRC. These regulations are established and enforced through mass government spending. In the past year, the PRC central government has spent nearly 700 million Yuan ($100 million USD) to enforce these various regulations. China Internet Information Centre, http://www.china.org.cn. (last visited April 3, 2011).

Internet Regulations in the PRC
:

There are three main Internet regulations that have been established and widely enforced throughout the PRC. See Jack L Qiu., Virtual Censorship in China: Keeping the Gate Between the Cyberspaces, INT'L J. COMM. LAW AND POL'Y. Vol. 4., 1999. The first regulation is titled "the Temporary Regulation for the Management of Computer Information Network International Connection" and was passed by the 42nd Standing Convention of the State Council on January 23, 1996. See G. Taubman, A not-so world wide web: the Internet, China, and the challenges to non- democratic rule, POLITICAL COMMUNICATION (1998), Vol. 15, 255-272. Section three of this regulation explicitly states that "The organization of the Ministry of Public Security is responsible for the security, protection and management of computer information networks and the Internet." CHINA INTERNET INFORMATION CENTRE, http://www.china.org.cn. (last visited April 2, 2011).

The Ministry of Public Security (hereafter referred to as "the Ministry") is the main police authority in the PRC. Id. It is currently headed by Meng Jianzhu. Id. The Ministry is responsible for the day-to-day law enforcement operations in the PRC. Id. The first regulation also states that "no units or individuals are allowed to establish direct international connection by themselves." See Taubman, 255-272. Only government-approved Internet service-providers (hereafter referred to as "ISPs") may offer private Internet service to citizens.

To date, the PRC has approved of four ISPs: ChinaNet, GBNet, CERNET, and CSTNET. Id. These ISPs operate under a special license which has to be renewed at specific intervals. Id. When considering license renewal, the PRC central government takes certain factors into consideration, such as the number of current subscribers and the amount of alleged regulation infractions.

The second Internet regulation is titled the "Ordinance for Security Protection of Computer Information Systems" (hereafter referred to as "the Ordinance"). Id. While the first regulation was established to set out specific guidelines for internet use, this regulation is more concerned with the enforcement of these internet regulations. The enforcement of these regulations is carried out by the Ministry. See Bryce T. McIntyre, China's Use of the Internet: A Revolution on Hold, in Telecommunications and Development in China (Paul S. N. Lee ed. 1997). The Ordinance allows for the investigation and prosecution of regulation violations. Id. Article Four of the Ordinance focuses on safeguarding "national affairs, economic construction, national defense, construction, and advanced science and technology" within the computer information systems. See Milton Mueller & Zixiang Tan, China in the Information Age: Telecommunications and the Dilemmas of Reform (1997). These areas are often cited as integrally important to "maintaining national sovereignty" by the PRC central government. Id.

The third regulation is titled the "Computer Information Network and Internet Security, Protection, and Management Regulation" (hereafter referred to as "the Management Regulation") and was approved by the State Council on December 11th, 1997. This regulation is the first in the PRC to focus specifically on Internet censorship. Section Five of the Management Regulation states the following:

No unit or individual may use the Internet to create, replicate, retrieve, or transmit the following kinds of information: Inciting to resist or breaking the Constitution or laws or the implementation of administrative regulations; Inciting to overthrow the government or the socialist system; Inciting division of the country, harming national unification; Inciting hatred or discrimination among nationalities or harming the unity of the nationalities; Making falsehoods or distorting the truth, spreading rumors, destroying the order of society; Promoting feudal superstitions, sexually suggestive material, gambling, violence, murder; Terrorism or inciting others to criminal activity; openly insulting other people or distorting the truth to slander people; Injuring the reputation of state organizations; Other activities against the Constitution, laws or administrative regulations. (Internet Information Service Regulation (promulgated by the State Council on December 11, 1997) (P.R.C.) §5)

The Management Regulation also sets out specific fines for infractions. In order to monitor Internet use the Ministry set up the "Golden Shield Project" in 1998. See Greg Walton, China's Golden Shield: Corporations and the Development of Surveillance Technology in the People's Republic of China, RIGHTS & DEMOCRACY, 2001.

The Golden Shield Project
:

"If you open the window for fresh air, you have to expect some flies to blow in."

-Deng Xiaoping

The Golden Shield Project (hereafter referred to as "the Shield") is a large scale firewall established in order to monitor Internet usage throughout the PRC. See William Yurcik & Zixiang Tan, The Great (Fire) Wall of China: Internet Security and Information Policy Issues in the People's Republic of China, Proceedings of 24th TPRC conference, Solomon, MD. Oct. 1996. Experts have estimated that the cost of fully implementing the Shield was $800 million USD. Id.

Daily operation of the Shield is carried out by the PRC's Internet police. In 2010, approximately 30,000 Internet police officers were actively employed in the PRC. Id. The Shield attempts to effectively screen Internet communications by utilizing five methods: IP blocking, DNS filtering and redirection, URL filtering, packet filtering, and connection reset. Id. IP blocking is a method in which the Internet police learn the IP address of a controversial web-site and then work to block Internet users within the PRC from accessing the web-site by blocking its IP address. When Internet users attempt to visit a blocked web-site, their computer's web browser will be rerouted to its homepage. What is IP Filtering?, LINUX NETWORK ADMIN. GUIDE, http://www.faqs.org/docs/linux_network/x-087-2-firewall.filtering.html (last visited March 31, 2011).

DNS filtering and redirection is a method through which the Internet police monitor Internet user's web-based searches and actually block their viewing of certain restricted materials. See Entensys, Internet access control and URL filtering without hardware appliances or proxy servers, http://www.entensys.com/products/gatewall_dns_filter/ (last visited March 31, 2011). URL filtering is a method utilized by the Internet police to ban URL contact with Internet users. URL contact is third-party contact aimed at targeting the personal computers of Internet users. URL filtering is not censorship orientated, as it is used primarily to prevent malware and spyware materials from entering the users' computer. See Blue Print Data, Architecting a Safer Internet, http://www.blueprintdata.com/glossary.html (last visited March 31, 2011).

Another type of filtering, called "packet filtering", controls access to a network by analyzing the incoming and outgoing packets and allows them to pass or stops them based on the IP addresses of the source and destination. See OpenBSD, PF: Packet Filtering, http://www.openbsd.org/faq/pf/filter.html (last visited March 31, 2011). This method is the one most commonly used by the Internet police, as it is the easiest to implement.

The final method implemented by the Internet police is called a connection reset. This occurs when an Internet user tries to gain access to web information that had been banned. As a result, the police would shut down the user's Internet connection for a predetermined period of time. The length of time that the user's Internet would be shut down would correlate to the web information that they had requested. Logically, one can assume that web information deemed more dangerous would trigger a longer shutdown period.

Internet Censorship in the PRC

The Ministry has often chosen to block access to certain websites that it deemed controversial or harmful. It is important to note that the Ministry is under no legal obligation to offer any explanation for the censorship of a particular web-site. Internet Filtering in China in 2004-2005: A Country Study, OPENNET INITIATIVE, http://www.opennetinitiative.net/studies/china/ (last visited April 2, 2011). The following are censored websites in the PRC: NewYorkTimes.Com, HuffingtonPost.Com, Facebook.Com, YouTube.Com, and Twitter.Com. Race to the Bottom: Corporate Complicity in Chinese Internet Censorship, Part IV, HUMAN RIGHTS WATCH, http://www.hrw.org/reports/2006/china0806/ (Last visited April 2, 2011)) Under no circumstances are citizens within the PRC allowed to visit these websites. Those who do so -- or even attempt to do so -- may have their right to use the Internet immediately revoked by the Ministry. Id. However, citizens within the PRC have found numerous ways to undermine these censorship regulations, the most popular being the use of a Virtual Private Network (hereafter referred to as "VPN"). Id.

A VPN in the PRC


A VPN is a way to connect to a private network through a public one, such as the Internet. The VPN does not use a dedicated connection, but rather a "virtual" connection through the Internet, which is then routed to a centralized network. See What is a VPN?, http://compnetworking.about.com/od/vpn/a/what_is_a_vpn.htm (last visited April 2, 2011). VPN's are primarily utilized by employees of large corporations working abroad. The VPN allows for simple and complete access to the corporation's home network. Id.
In the PRC, many citizens have begun using a VPN in order to access certain censored websites. A VPN ensures that the citizen's communications are kept private and out of the reach of the Internet police. This method has allowed citizens within the PRC to achieve a certain amount of freedom while using the Internet. The most popular VPN service is Witopia. See, e.g., Thomas Crampton, Best VPN to leap China's Firewall, http://www.thomascrampton.com/china/poll-result-best-vpn-to-leap-chinas-great-firewall/ (last visited April 2, 2011).

Witopia is a VPN service provider which was founded in 2003. Their business is based around offering cheap and secure Internet access through VPNs. They offer three different VPN service packages ranging from $39.99 to $69.99 a year. WITOPIA.NET, Products & Services, http://www.witopia.net/index.php/products/ (last visited April 2, 2011). The more expensive the service package, the more secure the VPN connection. Witopia guarantees that all its customers will experience a private, safe, and secure Internet connection.

Internet Regulations in the U.S.


Most published material on the Internet is protected by the First Amendment of the United States Constitution. Internet censorship in the US is primarily governed by the laws pertaining to libel, intellectual property, and pornography. See Internet Censorship Law & Public Policy around the Globe, U.S.A., http://www.efa.org.au/Issues/Censor/cens3.html#usa (last visited April 3, 2011).

In the United States, libel is the publication of a false statement which injures one's business or personal reputation. 46 U.S.C.A. §30905 (West 2011). Courts in the United States are reluctant to hold ISP's responsible for libelous statements made on the Internet. For instance, in Stratton Oakmont, Inc. v. Prodigy Services Co., the Supreme Court of New York held that in order for an ISP to be found guilty of libel, it must exercise some measure of control over the libelous statement. See 1995 WL 323710, at *1-2 (Sup.Ct., Suffolk Cty., May 24, 1995). This measure of control can be found in a contractual obligation. Id. If such an obligation is found to exist, it is the duty of the ISP to ensure that any libelous material be censored. Id.

Under U.S. law, intellectual property is "documented or undocumented knowledge, creative ideas, or expressions of the human mind that have monetary value and are protectable under copyright, patent, trademark, or trade secret laws from imitation, infringement, and dilution." See What is Intellectual Property?, UNITED STATES PATENT & TRADEMARK OFFICE, http://www.uspto.gov/web/offices/ac/ahrpa/opa/museum/1intell.htm (last visited April 3, 2011). It encompasses works of art, literature, and music. Id. In London-Sire Records, Inc. v. Doe, a United States district court in Massachusetts held that defendants who utilized peer-to-peer communication through the Internet in order to transfer copyrighted material were entitled to minimal First Amendment protection. 542 F.Supp.2d 153. Furthermore, the defendant's actions were deemed by the district court to be in violation of the Copyright Act. See 17 U.S.C.A. §106(3)(West 2011).

One of the areas in which debates over Internet censorship arise in the United States is that of websites displaying pornographic material. Congress passed The Children's Internet Protection Act on December 21, 2000. See Children's Internet Protection Act, FCC, http://www.fcc.gov/cgb/consumerfacts/cipa.html (last visited April 3, 2011). The Act requires that certain schools and libraries who receive federal funding utilize internet filters in order to safeguard minors from viewing pornographic material. Id. Not surprisingly, this is an issue that can and probably will result in legal disputes over just how far the United States government can reach in restricting a class of Americans from viewing certain websites.

Analysis and Conclusions

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."

-John Adams

Internet regulations in the PRC are concerned with preserving national sovereignty. They attempt to censor any material which may be harmful to its central government. Their regulations are in place solely for protecting that central government. Contrarily, Internet regulations in the United States are more concerned with protecting the individual rights of U.S. citizens. Libel statues protect an individual from the repercussions of a damaging false statement. Intellectual Property laws ensure that due credit and compensation is awarded to an artist or inventor. Congress has seen fit to safeguard minors from the harmful effects of pornographic materials by passing legislation in this regard.

At face value, it would appear that the PRC is well-suited and capable of controlling Internet content within its borders. The central government of the PRC spends millions of dollars and countless man hours in an attempt to shield its citizens from the outside world. Their regulations are aimed at one purpose: to control the free flow of information. Indeed, control is the very essence of their central government.

But, as every wary parent realizes, there comes a time when you can no longer shield your children from that you wish to control. Citizens of the PRC are hungry for knowledge; many would risk paying stiff fines in order to catch a glimpse of restricted material. The more the central government attempts to control its citizen's use of the Internet, the more its citizens will rebel. The Internet cannot be balanced, and the PRC must realize that it has to take the good with the bad. Any attempt at "balancing" the Internet would almost certainly harm their growth and world standing.

For a nation truly to stand out and be recognized, it must be built from the bottom up. Every citizen should be afforded the opportunity to access information. Trying to prohibit this access puts the PRC at a serious disadvantage. If they, as a country, truly want to sustain continuous growth and economic development, they must allow for the free flow of information to their citizens.

Ryan McParland graduated in the spring of 2011 from Albany Law School with a concentration in Business Law. During his time at Albany, he worked as an intern for the law school's Low-Income Taxpayer Clinic, where his main duties include researching tax law and negotiating settlements with the IRS on behalf of low-income individuals. He was also an ACES teaching fellow and was actively involved in his law school's Moot Court program.

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