There are limited rights to privacy in the Chinese Constitution. Article 38 provides that the personal dignity of citizens of the People's Republic of China is inviolable and further, that insult, libel, false accusation or false incrimination directed against citizens by any means is prohibited.[893] Articles 37 and 39 define, respectively, the protection of freedom of the person and the residence. Article 40 of the Constitutionprovides for the freedom and privacy of correspondence of the citizen.[894]
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."[895] The US Congressional-Executive Committee on China's annual report for 2002 described the problem more bluntly, "An evaluation of human rights and the rule of law in China reveals a complex picture of contradictory trends and isolated improvements, overshadowed by the Chinese government's persistent violations of fundamental, internationally recognized human rights."[896]
China's General Principles of Criminal Law include Article 252, which states "[t]hose infringing upon the citizens 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."[897] 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."[898]
However, law enforcement officials can issue search warrants on their own authority or else simply ignore legal requirements for independent oversight.[899] "During the year [2002], authorities monitored telephone conversations, facsimile transmissions, e-mail, 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. Government security organs monitored and sometimes restricted contact between foreigners and citizens."[900]
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."[901] Article 246 of the General Principles of Criminal Law (1997) (GPCL) 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."[902]
In 1988 and 1992, as the result of 'invasion of privacy' litigation, many journalists were imprisoned. This stimulated much academic and public debate on such issues as the role of journalism in matters of public interest, the proper balance between the right to privacy and the right to know, the appropriate ethical norms which should govern the conduct of the journalist and the freedom of the press. Some judicial decisions during this period emphasized these debates; for example, Two Art Models v. The Organizers of the Exhibition, The Rock 'n' Roll Star Cui Jian v. The Writer Zhao Jianwei and his Publisher.[903]
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.[904] 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."[905] The Law on Lawyers (1996)requires lawyers to protect the personal secrets of their clients;[906] the Law on Statistics (1983) provides that data collected from investigations shall not be disclosed without the consent of data subjects;[907] and, the Provisional Regulations Relating to Bank Management (1986)provide that all information concerning the savings of clients shall not be disclosed.[908]
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 them 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 Lawto 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 causes a certain negative impact on the persons concerned, shall be treated as an invasion of the right of reputation.[909]
More recently, in the case Yu Meifang v. Xinzhou Prefectural People's Hospital, the Xinzhou Intermediate People's Court of Shanxi Province ordered the defendant hospital to pay Yu 20,000 yuan (~USD2400 USD) in compensation for the anguish and humiliation she experienced when the hospital released false information about her medical condition.[910] In February 2000, Yu had gone to the orthopedics section of the hospital for treatment. A doctor from the hospital tested her blood and suspected her of being HIV-positive. The hospital separated her from other patients immediately and informed both the Xinzhou Epidemic Prevention Station, and the shopping center where Yu worked, that she was infected with HIV. The shopping center subsequently refused to rent her retail space and her business partner severed their partnership.
The Practicing Physician Law requires that doctors not reveal health information obtained during treatment. Doctors who violate the law face criminal penalties. In May of 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. The Ministry of Health order asked all units and individuals in charge of diagnosis, treatment, and management work not to publish any personal information about HIV/AIDS sufferers, such as the name and the family address. 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.[911]
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. At least five provincial governments have implemented local regulations seeking to prevent persons with severe mental disabilities from having children.[912] In August 1998, the Government issued an "explanation" to provincial governments clarifying that no sterilization of persons with genetic conditions could be performed without their signed consent. In practice, most areas still do not have the capacity to determine accurately the likelihood of passing on hard to detect debilitating genetic diseases.
Last year, the China Psychiatric Association ceased listing homosexuality as a mental illness. Many gays and lesbians saw the move as a sign of increased government tolerance. Nonetheless, most gatherings of gays and lesbians still take place clandestinely.[913]
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. Article 6 of the Postal Law prohibits postal enterprises and staff from providing information to any organization or individual about users' dealings with postal services except as otherwise provided for by law.[914] However, Article 21 permits postal staff to examine, on the spot, the contents of "non-letter postal materials." Mail handed in or posted by users must be in accordance with the stipulations concerning the content allowed to be posted; postal authorities have the right to examine mail, when necessary.[915] However, in an age when e-mail is replacing letters as the preferred mode of written communication, China continues to ramp up massive and systematic surveillance of electronic communications.
The Chinese government announced[916] and then retracted a broad-sweeping rule that required all entities other than embassies to register any software using encryption technology. The original rule was announced on November 10, 1999 by the PRC State Encryption Management Commission and required registration by January 31, 2000.[917] However, few companies registered by the due date, and under increasing pressure from the international community officials reversed the hugely unpopular law, which likely would have delayed or prevented the launch of Microsoft's Office 2000 and Cisco's installation of new mobile phone networks.[918]
Business travelers in China carrying laptops with "ordinary business software" are no longer required to register with the government, even if their computers have software with encryption capabilities, as they would have been under the original interpretation of the law.[919] The law now only requires that certain special hardware and software products, primarily used for encryption, be registered with the government. Beijing has also decided not to require foreign businesses to hand over the keys to their encryption software or devices.
China has had a long-standing policy - dating back to the 4th Century BC - of keeping close track of its citizens. Even in those early times, many Chinese provinces were often remarkably 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."[920]
Freedom of association remains tightly controlled. All social organizations - from book clubs to congregations and visiting relatives - must be reported to and registered with the Ministry of Civil Affairs. Any group that operates without registering risks prosecution.[921] Failure to notify local authorities concerning visiting guests is also punishable by fine.[922] Labor unions remain illegal.[923] Government authorities systematically monitor[924] some individuals and groups more closely than others, including: advocates of democratic reform,[925] human rights activists,[926] minorities,[927] and members of Falun Gong.[928]
The Constitution provides for freedom of religious belief and the freedom not to believe; however, the government seeks to restrict religious practice to government-sanctioned organizations and registered places of worship and to control the growth and scope of the activity of religious groups.[929] There are five officially recognized religions: Buddhism, Taoism, Islam, Protestantism, and Catholicism. For each faith, there is a government-affiliated association to monitor and supervise its activities.[930]
In late 2000, six million census takers attempted an accurate count of the number of Chinese citizens in the fifth ever national census, but privacy and economic concerns made citizens less cooperative than in the past. Zhang Weimin, a statistician at China's National Statistics Bureau, noted that "under the planned economy, people had no privacy. Everybody's income was the same across the country. But now [China has] a market economy, and people want to protect their secrets... cooperation... will not be as good as before."[931]
An estimated 5 million children go unreported because of China's 'one-child policy', under which authorities heavily fine parents who have more than one child, subject to some exceptions. In the recent census, enumerators were so concerned with accuracy that they promised not to divulge census results to the police, the family planning commission or any other state organization. They also promised to burn the paper results once computer data entry was complete, in order to ease the fears that these records would be used for other purposes.[932]
Since 1984, 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 expiry date, which varies depending on the age of the cardholder. Public security agencies and other government and quasi-government agencies have the right to demand the production of identification at any time.[933] Failure to register for an identification card, forging or otherwise altering a residence registration, or assuming another person's registration are all prohibited by law and punishable by fine.
Reportedly, the national identification system is being liberalized and the ability of most citizens to move around the country to live and work continues to improve.[934] 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.[935]
Smart card development is well underway in China, with both domestic and international players competing to develop chips and modules to meet design and regulatory specifications.[936] In 2001, the city of Shanghai adopted a smart social security card designed to hold driving licenses, passports and even marriage registration. Currently, over 5 million Shanghai residents have applied for the card and the government hopes that by 2003 most Shanghai citizens will be using the card. The information on the card comes from, and can be verified by, social security, police, medical insurers, public housing and other local authorities.[937]
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.[938] In February 1999, the government announced the creation of the State Information Security Appraisal and Identification Management Committee which "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."[939] According to Human Rights Watch, by December 2000, China had over 300,000 Internet police.[940]
Frank Lu, the head of the Hong Kong-based Information Center of Human Rights and Democratic Movement in China, reported in November 1999 that 300 computer graduates had been recruited by Shanghai security officials to carry out cyber-surveillance in 1999.[941] Canadian, American, and British members of the Falun Gong movement claimed to be targets of such surveillance in Fall of 1999, reporting assaults on their web sites by various means commonly used to block or penetrate sites.[942]
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.[943] A recent study documented in detail government monitoring and censorship of discussion forums, where controversial postings are removed within minutes or hours.[944] 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.[945]
In October 2000, the Ministry of Information Industry (MII) promulgated the Internet Information Services Regulations aimed at controlling Internet usage. Promoting "evil cults" was 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.[946]
Another provision of the regulations requires Internet café patrons to register with "software managers" and produce a valid ID card to log on.[947] The English chatroom of SOHU.com, partly owned by Dow Jones, posted a list of prohibited topics including criticism of the Constitution, topics which damage China's reputation, discussion that undermines China's religious policy, and "any discussion and promotion of content which PRC laws prohibit." The posting continues: "If you are a Chinese national and willingly choose to break these laws, SOHU.com is legally obligated to report you to the Public Security Bureau." An internal AOL memo recommended that if AOL were asked what it would do if the Chinese government demanded records relating to political dissidents, AOL staff should respond "It is our policy to abide by the laws of the country in which we offer services."
Article 7 of the Computer Information Network and Internet Security, Protection and Management Regulations states "the freedom and privacy of network users is protected by law. No unit or individual may, in violation of these regulations, use the Internet to violate the freedom and privacy of network users."[948] However, articles 8, 10 and 13 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."[949] Articles 285 to 287 of the criminal code make unauthorized intrusions into computer systems illegal.[950]
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 pent up demand, it is estimated that more than 60 per cent of China's 200,000 plus Internet cafés remain unlicensed. Licensed cyber cafés require patrons to provide identification and register each time they visit. It is unsurprising that a significant percentage of China's estimated 55 million Internet users log on - using prepaid, anonymous phone cards - through unlicensed cyber cafés.[951] These cafés offer inexpensive access and a unregulated degree of freedom that might not otherwise be possible.[952]
In early 2001, more than 1,700 Internet cafes in Chongqing began operating "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.[953] The product 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 cafes would benefit the healthy development of this fledgling industry.
On April 10, 2001, the State Council ordered a three-month investigation into all public Internet service providers and announced that no new Internet cafes could be opened during that time. By June 2001, the Shenzhen Legal Daily reported that Chinese police had inspected over 56,800 cafes. Over 6,000 of these were disconnected and 2,300 shut down completely.[954] The Shanghai Daily said the move was China's second major clampdown in a little more than a year. In May 2002, a devastating fire in an unlicensed café killed 25 people and prompted another nationwide crackdown.[955] On June 10, 2003, China began to license Internet café "chains" that would as alternative to the grungy, privately held (and difficult to control) cafes that were the target of previous crackdowns.[956] This has been widely viewed as an attempt to promote consolidation in to the hands of fewer, larger, easier-to-control organizations.
The monitoring of Internet activity has led to numerous arrests and long jail sentences for online activists; according to Reporters Without Borders, more than thirty-six individuals are in prison for expressing their views on the Internet.[957] The crackdown has gained speed recently; on February 16, 2003 an Internet critic of the government was sentenced to seven years in prison.[958] And on May 28, 2003, four activists who posted essays critical of the government were given prison sentences of up to ten years.[959]
Throughout the inspections and closures, authorities have given various rationales for their methods, from protecting youth from corruption on the Internet, to public safety. Ultimately, the closure or increased regulation of cyber cafés - for any reason - impacts the ability of average Chinese, particularly students, from access to foreign news sources and denies them a degree of expression they do not otherwise enjoy.
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.[960] 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.[961]
Using technological assistance and equipment from Western companies such as Nortel Networks and IBM, China's Ministry for Public Security (MPS) passes all international connections through proxy servers at official gateways, where MPS officials identify individual users and content, define rights, and carefully monitor network traffic into and out of the country.[962] Derisively termed the "Great Firewall" by hacktivists and journalists worldwide, the Ministry of Information Industry (MII) also uses the firewall to periodically filter access to Western web sites, particularly media organizations, such as the Washington Post and Voice of America,[963] human rights organizations, such as Amnesty International, or any other web site deemed subversive.[964] Recently, the government has taken public steps to relax filtering on a case-by-case basis.[965]
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. Further, data from a 2001 Chinese Academy of Social Sciences (CASS) survey on Internet use shows that 10 per cent of users admit to regularly using, and 25 per cent occasionally using, proxy servers to defeat censorship measures.[966] 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.
At a recent security industry conference, the PRC government announced an ambitious successor to its Great Firewall strategy. Rather than relying solely on a national intranet, separated from the global Internet by a massive firewall, China will now build surveillance intelligence into the network, allowing it to "see," "hear" and "think".[967] Content-filtration will shift from the national level to millions of digital information and communications devices in public places and people's homes.[968] This project is dubbed "Golden Shield."
The technology behind Golden Shield is incredibly complex and is based on research developed largely by Western technology firms, including Nortel Networks, Sun Microsystems and others. The Golden Shield efforts do not signal an abandonment of other avenues of access and content control. For example, details are only beginning to emerge about a new "black box" device, derived from technology previously used in airline cockpit data recorders, and broadly similar to the Carnivore system developed by the US government.[969] Once attached to a server at the ISP, Carnivore works by intercepting all incoming transmissions and then parsing out pertinent material, based on keywords provide by the administrator. Chinese Internet police would use the black box technology to monitor dissidents and collect evidence on illegal activities.[970]
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 it signed in 1998. In February 2000, Chinese lawmakers attending the 20th session of the Standing Committee of the 9th National People's Congress (NPC) expressed support for its early ratification.[971]