Controlling cyberspace: The China and U.S. models

In the third week of September, Charles Xue, one of China’s most influential bloggers, who was in custody on charges of allegedly soliciting sex workers, confessed on the state-run CCTV to posting irresponsible rumours online. [1] Xue’s confession was linked to a new judicial interpretation that further polices the internet in China.

This incident demonstrates China’s approach to governing cyberspace – through censorship. The other approach is surveillance, exemplified by the U.S. Both approaches jeopardise the rights and privacy of internet users, and pose serious implications for the future of the internet.

The new cyber-policing law in China, which facilitated Xue’s arrest, was announced on September 9 by the Chinese Supreme People’s Court, the highest court in China, and the Supreme People’s Procuratorate, the highest agency responsible for prosecution. They jointly published a judicial interpretation of Article 246 of the Chinese Criminal law code titled ‘On Issues pertaining to the application of laws in handling criminal cases of using the Internet to Defame’. It says, “Users that post or re-post rumours that are viewed over 5000 times or receive 500 shares will be charged with defamation and face a penalty that could include fines or up to three years in jail”.[2]

The threshold of 5000 views and 500 shares is extremely low when influential bloggers like Xue have followers in the millions, and whose posts on Weibo are often shared thousands of times. [3] Sophie Richardson, China director of Human Rights Watch, has said, “The new interpretation is worded so vaguely, and the standards for ‘serious circumstances’ so low, that anyone can be jailed for exposing official wrongdoing, or indeed saying anything the government doesn’t like.” [4]

The new judicial interpretation expands the existing definitions of criminal offences under Article 246 – which relates to creating disturbances, publicly humiliating or inventing stories to defame – to be applied to actions online. The interpretation sets out seven more online activities that can be punished, including posting information that leads to mass protests or public chaos; slandering multiple people that leads to adverse social impact; damage to the nation’s image or to national interest; and “other” situations where there is serious damage to social order and national interest.

The Chinese government’s assertion of its sovereignty in the virtual world is stated in a 2010 white paper of the Information Office of the State Council; it says that China’s “laws and regulations clearly prohibit the spread of information that contains content subverting state power, undermining national unity or infringing upon national honour and interests,” and that “within Chinese territory the internet is under the jurisdiction of Chinese sovereignty.” [5]

The new judicial interpretation makes China’s censorship law one of the strictest in the world. China’s Ministry of Public Security controls content that enters China’s cyberspace through the use of a firewall, popularly known as the Great Firewall of China. This blocks access to sites that the government considers offensive, including sites with pornographic or politically-sensitive content. Facebook, Youtube, and Twitter have been blocked in China since 2009. Content considered offensive to the communist party is debarred from online searches. Websites of The New York Times and Bloomberg are occasionally blocked.

As alternatives, the Chinese government fostered the development of social media sites such as Ren Ren (Facebook), Youku (Youtube), Sina Weibo (Twitter) – among others, that the 500-plus million internet users in China use. [6] However, even on these platforms, content is heavily censored. On Sina Weibo, users are unable to post words, phrases or names that the government considers inappropriate. For example, references to the Tiananmen Square protests or any mention of disgraced former party member Bo Xilai. The list of banned terms is updated in real time in response to current events. Sina reportedly employs thousands of workers as censors, who review and delete “inappropriate” content. Helped by a powerful algorithm, over an average 24-hour period, the censors process about 3 million posts. [7]

China’s control of the internet in this manner is limited to censorship within its borders. The U.S., however, uses surveillance to monitor the internet globally.

The U.S.’ National Security Agency (NSA) clandestinely created the world’s most far-reaching and sophisticated internet surveillance system that affects nearly every internet user in the world. Through two programmes (both part of PRISM), called Upstream and X-Keyscore, the NSA is able to collect nearly everything a user anywhere across the world does on the internet, including emails, online chats, cloud storage, and website history. According to reports in The Guardian linked to Edward Snowden, former NSA contractor, in 2012, at least 41 billion records were collected and stored in X-Keyscore for a single 30-day period. [8]

The U.S.’s monopoly over the global internet enables this surveillance. It is the largest internet hub in the world, with 20.6 tbps of bandwidth, though which runs most of the world’s internet traffic. [9] Even Internet Protocol (IP) addresses and domain names worldwide are created by the Internet Corporation for Assigned Names and Number (ICANN), a private organisation based in California with ties to the U.S. Department of Commerce.

Because American websites such as Facebook and Google have become the de-facto choice for much of the world, in the absence of an international internet law, only U.S. laws govern what the NSA and American companies can do with data about online activity. And the U.S. laws in this context are weak or absent. Nine major U.S. companies, including Google, Microsoft, and Apple, were ordered to hand over information to the NSA. At least within the U.S., individuals and companies can seek protection under the Fourth Amendment right, which prohibits unwarranted searches. But everyone outside the U.S – including Indian firms and people – is unprotected from American surveillance, and has no rights to privacy or ownership of data under any international law.

While the U.S. and China continue to fine-tune their different internet-control mechanisms, others states are adopting their own variations. The Indian government’s Centre for Development of Telematics has developed the Central Monitoring System (CMS), which became operational this year with a start up cost of 400 crores. [10] Part of the CMS is a social media centre designed to monitor Facebook and other sites.

The scope of the CMS is not yet fully clear. India’s Information Technology Act 2000 (amended in 2008) does not comprehensively protect users’ privacy. A Bill is being discussed to ensure the “right to privacy” with regard to electronic surveillance. Until such legislation is passed, Indian internet users may be exposed to potential abuse.

Meanwhile, the China-U.S. censorship-surveillance spectrum may eventually influence international efforts to formulate global internet governance. The United Nations’ International Telecommunication Union (ITU), the primary global body that regulates all communication networks, has no binding treaty for the internet. When the ITU last met in December 2012, the U.S. opposed discussions of any form of international internet governance.

More promisingly, the Internet Governance Forum (IGF), mandated to assist the UN Secretary General, which comprises governments, companies, and civil society, met in October 2013 in Bali. The surveillance by the NSA was a focus of discussion at the meeting, and a majority of participants agreed that the IGF must work towards a multi-stakeholder approach to global internet governance. [11]

After the leaks by Snowden, Brazil and Germany have taken steps to formulate global rules and principles to govern the internet. However, without coordinated change across the globe, countries will be forced to act unilaterally.

So far, the internet had evolved to be governed through self-enforcing norms rather than a central global authority. This was thought to be to the benefit of the internet and its users. This is no longer the case; the privacy and the rights of internet users worldwide are under threat from watchful states.

Dev Lewis is a an intern at Gateway House: Indian Council on Global Relations.

This blog was exclusively written for Gateway House: Indian Council on Global Relations. You can read more exclusive content here.

For interview requests with the author, or for permission to republish, please contact outreach@gatewayhouse.in.

References

[1] Liu. (Producer). (2013). Big V Charles Xue’s Internet Motives [Web Video]. Retrieved from

http://news.cntv.cn/2013/09/15/VIDE1379202482346211.shtml?utm_source=The Sinocism China Newsletter&utm_campaign=b07ebb9324-Sinocism09_16_13&utm_medium=email&utm_term=0_171f237867-b07ebb9324-27462317

[2] Supreme people’s court announcement. (2013, September 9). People’s Daily Online. Retrieved from http://legal.people.com.cn/n/2013/0909/c42510-22859612.htm

[3] Charles, M. (2013, October 25). [Web log message]. Retrieved from http://weibo.com/charlesxue

[4] China: Draconian legal interpretation threatens online freedom. (2013, September 13). Human Rights Watch, Retrieved from http://www.hrw.org/news/2013/09/13/china-draconian-legal-interpretation-threatens-online-freedom

[5] Government of the People’s Republic of China, The Information Office of the State Council. (2010). The internet in china. Retrieved from website: http://english.gov.cn/2010-06/08/content_1622956.htm

[6] China internet statistics whitepaper. (2013, February 9).China Internet Watch. Retrieved from http://www.chinainternetwatch.com/whitepaper/china-internet-statistics/

[7] Rajagopalan, M., & Li , H. (2013, September 11). At sina weibo. Reuters. Retrieved from http://www.reuters.com/article/2013/09/12/us-china-internet-idUSBRE98A18Z20130912

[8] Greenwald, G. (2013, July 31). Xkeyscore: Nsa tool collects ‘nearly everything a user does on the internet’. The Guardian. Retrieved from http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data

[9] Lindeman, T. (2013, July 6). A connected world. The Washington Post. Retrieved from http://apps.washingtonpost.com/g/page/business/a-connected-world/305/

[10] Krishna, P. (2013, May 7). Central monitoring system to make government privy to phone calls, text messages and social media conversations. The Centre for Internet & Society, Retrieved from http://cis-india.org/news/times-of-india-indu-nandakumar-may-7-2013-cms-to-make-govt-privy-to-phone-calls-text-messages-and-social-media-conversations

[11] Surveillance Issues Overshadow Talks at End of Internet Governance Forum (IGF) 2013. (2013). Internet governance forum Retrieved from http://www.intgovforum.org/cms/2013/IGF2013%20Press%20Release%20
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