II. Surveillance policy
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 authorisation."1
China's law states that the "freedom and privacy of correspondence of citizens are protected by law".2 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.3
Article 252 of China's Criminal Law states that "[t]hose infringing upon the citizen's right of communications, 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."4 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."5
Nevertheless, in 2006 the US State Department Human Rights report identified that Chinese authorities were engaged in the monitoring of domestic and international mail as well as communications in the form of telephone, facsimile, mobile text, email and other Internet services.6 The surveillance also extended to all major hotels, where authorities installed equipments to monitor internet activities and intercepted or searched guestrooms for sensitive and proprietary materials at normal times as well as at times of large events, such as the Olympic Games of 2008.7 The growing number of Chinese Internet sites accelerated the government's efforts to tighten control on topics of discussion that are subject to monitoring.8
China's Internet regulations and legislation are guided by the principle of "guarded openness" seeking to preserve the economic benefits of new information and communications technologies while guarding against foreign economic domination and the use of technology to coordinate anti-government activity.9 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 resource 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.10
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.11 The Western trade journal Security World predicts a 20 per cent 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.12
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.
The Ministry of Public Security requires Chinese Internet service providers to install "black boxes", monitoring devices dedicated to tracking the contents and activity of individual email accounts. 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. Human rights advocates express concern that this project combines Internet filtering with other forms of surveillance technology such as cameras with facial recognition software, fingerprint databases, and speech recognition software to monitor telephone conversations, and in future may be used to create a computerised national network of citizens.13
There have been reports that Chinese authorities are also working with technology experts at Shenzhen University to develop an email filtration system that is able to detect and delete "unwanted" emails 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.
Freedom of association remains tightly controlled. Although the law provides for freedom of association, the Chinese government restricts this right in practice.14 All social organisations from book clubs to congregations must report to and be registered with the Ministry of Civil Affairs. Any group that operates without registering risks prosecution.15 Labour unions remain illegal unless the authorities have granted permission.16 Government authorities systematically monitor some individuals and groups more closely than others, including advocates of democratic reform,17 human rights activists,18 minorities,19 and members of Falun Gong.20
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.21 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.22 Since 2005, the number of registered NGOs in China has increased substantially.
China has been installing surveillance cameras within its cities, and by 2010 there were estimates of 2.75 million cameras nationwide.23 US$1.8 billion had been spent to install one million video cameras covering major cities like Guangzhou and Shenzhen. In Beijing, 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.24
- 1. 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).
- 2. Postal Law (1987), Article 4, available at http://www.worldlii.org/cgi-bin/disp.pl/cn/legis/cen/laws/pl1987110/pl19...
- 3. US State Department Human Rights Report 2006 - China, supra.
- 4. Criminal Law, Part I, Chapter IV, Article 252 (1997), available at http://www.eastlaw.net/service/datacnlaw/code/criminal/criminal.htm
- 5. Id. at Part I, Chapter IV, Article 245.
- 6. US State Department Human Rights Report 2006 - China, supra.
- 7. Id. See also Electronic Privacy Information Center, "Privacy and the 2008 Olympic Summer Games", 2008, available at [link].
- 8. Human Rights Watch World Report 2005 - China, supra.
- 9. 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
- 10. He Qinglian, "The Hijacked Potential of China's Internet" China's Right's Forum. Special Book Review (2006) 33, at 35.
- 11. Id. at 36.
- 12. Id. at 38.
- 13. F. Guterl, "Surveillance," Newsweek, March 8, 2004.
- 14. US State Department Human Rights Report 2006 China, supra.
- 15. 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.
- 16. 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.
- 17. 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.
- 18. 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/legacy/wr2k3/asia4.html#defending
- 19. Authorities monitor and regularly detain "splittist" activists in Tibet and Xianjiang, see Human Rights Watch World Report 2003, supra, at "Tibet," "Xinjiang."
- 20. 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.
- 21. US State Department Human Rights Report 2006 China, supra.
- 22. Id.
- 23. Michael Wines, 'In Restive Chinese Area, Cameras Keep Watch', The New York Times, 12 August 2010.
- 24. "The Long March to Privacy" supra.