<<previous  |  index  |  next>>

II. How Censorship Works in China: A Brief Overview

1. The “Great Firewall of China”: Censorship at the Internet backbone and ISP level

Political censorship is built into all layers of China’s Internet infrastructure. Known widely in the media as the “Great Firewall of China,” this aspect of Chinese official censorship primarily targets the movement of information between the global Internet and the Chinese Internet.

Internet censorship in the People’s Republic of China (PRC) is overseen technically by the Ministry of Information Industry (MII). Policy about what substantive content is to be censored is largely directed by the State Council Information Office and the Chinese Communist Party’s Propaganda Department, with input from other government and public security organs.² Physical access to the Internet is provided by nine state-licensed Internet Access Providers (IAP), each of which has at least one connection to a foreign Internet backbone, and it is through these connections that Chinese Internet users access Internet websites hosted outside of China.³ The individual Chinese Internet user buys Internet access from one of several thousand Internet Service Providers (ISPs), who are in effect retail sellers of Internet access that is in turn purchased wholesale from the nine IAPs.

Internet routers, devices that deliver and direct packets of data back and forth between networks, are an essential part of Internet networks. Most of today’s routers also allow network administrators to censor or block—or, as the industry calls it, “filter”—the data going through them, programming the router to block certain kinds of data from passing in or out of a network. This filtering capability was initially intended so that Internet Service Providers could control viruses, worms, and spam. The same technology, however, can also be easily employed to block political, religious, or any other category of content that the person programming the router seeks to block.⁴

The first layer of Chinese Internet censorship takes place at this router level. According to the 2005 technical analysis of Chinese Internet filtering conducted by the Open Net Initiative, IAP administrators have entered thousands of URLs (Internet website addresses) and keywords into the Internet routers that enable data to flow back and forth between ISPs in China and Internet servers around the world. Forbidden keywords and URLs are also plugged into Internet routers at the ISP level, thus controlling data flows between the user and the IAP. ⁵

This router-level censorship, configured into the hardware of the Chinese Internet, is reinforced by software programs deployed at the backbone and ISP level which conduct additional “filtering” of political content. (In many countries such censorship software deployed at the backbone and ISP level is a product called SmartFilter, developed by Secure Computing. China, however, has developed its own home-grown filtering software.)⁶ Such filtering programs are used globally by households, companies, and organizations for all kinds of purposes: they enable employers to block employees from surfing pornography or gambling online from the office, and enable schools to prevent young students from accessing age-inappropriate content.

It is this type of censorship or blocking that causes an error message to appear in the Chinese Internet user’s browser when he or she types, for example, http://www.hrw.org (the Human Rights Watch website) into the address field of his or her browser.

Figure 1: Error page appearing when user attempts to access www.hrw.org on a Chinese ISP

It is important to note that while similar Internet censorship is conducted in many countries, some governments choose to inform their citizens that censorship is taking place, while other governments choose to leave users with an error message that could be the result of any number of problems, including user error or technical failure of the Internet connection. In Saudi Arabia, when a user attempts to access a webpage that authorities have chosen to block, they are directed not to a 404 error page as depicted in Figure 1 above, but to a page informing the user that the page he or she is attempting to access has been blocked in accordance with national laws, with contact information in the event that the user believes the page was censored in error.⁷

2. Censorship by Internet Content Providers: Delegating censorship to business

Building censorship into China’s Internet infrastructure is the first way in which the Chinese government seeks to block user access to politically sensitive information. The second step is to prevent ISP’s—many of them privately-held businesses, some with foreign investment—from hosting politically objectionable content by holding them liable for doing so.⁸ The third step targets Internet Content Providers (ICPs): organizations or individuals (either for-profit or non-profit) who provide publicly available content on the Web (news, entertainment, or commercial websites), or who provide platforms on which users can communicate and converse with one another (chatrooms and bulletin board systems known commonly as BBS), or on which users can create and share text, photographs, audio and video (blogging services, photo- and video-sharing sites, podcasting and audio-sharing services, etc.).

All ICPs—commercial or non-commercial—are required to register for and display a license in order to operate legally, and are held liable for all content appearing on their websites, whether created by the company’s or organization’s employees, or by any of the site’s visitors or users of its content-creation and sharing services.

If an ICP wants to obtain—and keep—its business license to operate in China, it is  expected to prevent the appearance of politically objectionable content through automated means, or to police content being uploaded by users for unacceptable material, which is then taken down manually by company employees.⁹ The obligation to do so is manifested in a “voluntary pledge” signed by hundreds of organizations including Chinese companies, universities, and government offices. This “Public Pledge on Self-discipline for the Chinese Internet Industry,” initiated by the Internet Society of China (ISOC), commits signatories to “energetic efforts to carry forward the rich cultural tradition of the Chinese nation and the ethical norms of the socialist cultural civilization” by observing all state industry regulations. In particular, signatories vow to refrain “from producing, posting, or disseminating pernicious information that may jeopardize state security and disrupt social stability.”¹⁰ The Internet Society of China is the major professional association for the Chinese Internet industry. While the ISOC is called a “nongovernmental organization,” its “governing body” is the Ministry of Information Industry, the government ministry in charge of China’s national Internet infrastructure.¹¹ To date, Yahoo! is the only Western company known to have signed the pledge (as will be discussed further in Section IV, Part 1).¹²

The display of politically objectionable content can result in reprimands to company management and employees from the MII, the State Council Information Office, the Communist Party’s Propaganda Department, and/or various state security organs, accompanied by warnings that insufficient controls will result in revocation of the company’s license. In order to minimize reprimands and keep their licenses in good standing, BBS and blog hosting services maintain lists of words and phrases that either cannot be posted or which cause monitoring software to “flag” the content for manual removal by employees.¹³

Search engines likewise maintain lists of thousands of words, phrases and web addresses to be filtered out of search results so that links to politically objectionable websites do not even appear on the search engine’s results pages, even when those websites may be blocked at the backbone or ISP level. Thus, the user is prevented from knowing that the forbidden content exists at all. This is a deliberate choice made by the operator of the search engine.¹⁴

In 2004, Xiao Qiang, Director of the China Internet Project at the University of California at Berkeley, published one such list that had been leaked from a Chinese instant messaging service (see Appendix I).¹⁵ Another similar list was obtained by the Washington Post from an unnamed Chinese weblog hosting company in early 2006 (see Appendix II).¹⁶

Such lists are not given directly to Internet companies by the Chinese government; rather, the government leaves the exact specifics and methods of censorship up to companies themselves. Companies generate their “block-lists” based on educated guesswork plus trial-and-error: what they know to be politically sensitive, what they are told in meetings with Chinese officials, and complaints they may receive from Chinese authorities in response to the appearance of politically objectionable search results.¹⁷

But the complicity of companies is even more direct: they actually run diagnostic tests to see which words, phrases, and web addresses are blocked by the Chinese authorities at the router level, and then add them to their lists, without waiting to be asked by the authorities to add them. And because they seek to stay out of trouble and avoid complaints from the authorities, many businesspeople who run ICPs in China confess that they are inclined to err on the side of caution and over-block content which does not clearly violate any specific law or regulation, but which their instincts tell them will displease the authorities who control their license.¹⁸ In all these ways, companies are doing the government’s work for it and stifling access to information. Instead of being censored, they have taken on the role of censor. Yahoo!, Microsoft’s MSN, and Google all act as ICP’s in China.

3. Surveillance and censorship in email and web chat

As in most countries, email services hosted on servers inside the PRC are expected to respond to requests by law enforcement authorities for user information and copies of email communications. Yahoo!, the only non-Chinese Internet company providing email services with user data hosted inside the PRC, has responded to information requests in criminal cases, as have all domestic Chinese businesses that provide email services. Because Chinese law enforcement bodies and courts include a range of internationally protected political speech in their interpretation of what constitute criminal acts under Chinese domestic law, Yahoo!’s compliance with Chinese law has assisted in the conviction of at least four Chinese government critics (see below, Section IV, part 1).

Mobile and Internet chat services licensed to sell services to Chinese users inside the PRC are also required to filter politically sensitive content. As mentioned in the previous section, in 2004 Xiao Qiang obtained a block sensitive word list used by the popular QQ instant messaging service, owned by the Chinese company Tencent.¹⁹ Human Rights Watch has received reports from users of other Internet chat services that some messages containing political content were sent but not received by the intended recipient. In at least some cases, however, users suspected that the blocking had taken place at the ISP or backbone level, rather than at the level of the chat client itself.²⁰ However, at least one international company, Skype, has admitted to building censorship functions into its Chinese-language chat client developed jointly with the Chinese company Tom Online (see Section IV, Part 4).²¹

4. Breaching the Great Chinese Firewall

Censorship at the gateway and ISP level can be circumvented by the tech-savvy user through the use of proxy servers and other circumvention technologies. A proxy server is an intermediary web server that the Internet user can use to access other websites indirectly, so that the ISP only sees that you are visiting the intermediary site but not the final destination site. If an Internet user configures her web browser to access the Internet via a proxy server located outside China, her web-surfing experience will be similar (although necessarily slower) to that of users in the country where that particular proxy server is hosted. Lists of proxy servers can be found on the Internet, but the Internet Protocol (IP) addresses of these proxies are quickly blocked by administrators somewhere at the Chinese backbone or ISP level, making them impossible to use. Users from inside China report having to search for a new, unblocked proxy every thirty minutes to two hours. Software tools such as Anonymizer, Tor, and others such as Dynapass (created by affiliates of Falungong) have been devised to help users get around this problem either by providing updates of new proxies or by setting up the software to automatically discover new unblocked proxies.²² Roger Dingledine, creator of Tor, reports that “some tens of thousands” of people appear to be using Tor from China on a weekly basis.²³ (Why the Chinese government has, as of this writing, chosen not to block the proxy nodes used by Tor is unknown.)

According to a 2000 Chinese Academy of Social Sciences (CASS) survey of Internet use in five Chinese cities, 10 percent of users surveyed admitted to regularly using, and 25 percent to occasionally using, proxy servers to circumvent censorship.²⁴ A 2005 CASS Internet user survey, asking the same question, received the following response: “never”: 71.2 percent; “seldom”: 19.7 percent; “sometimes”: 5.9 percent; “often”: 2.5 percent; “frequently”: 0.6 percent.²⁵ As the number of new Internet users increases rapidly, exactly how many people in China today really do use proxy servers on a regular basis—compared to those willing to admit doing so to pollsters—is the subject of anecdotal speculation and debate. However anecdotal evidence does support the CASS finding that while many people—especially university students—may be aware of proxy servers and know how to use them, the percentage of people who regularly use proxy servers to access blocked sites is small. In 2005 the global citizens’ media weblog Global Voices Online posted some questions to Chinese bloggers about proxy server use in China, including: “Of the people in China who use the internet regularly, what percentage do you think know how to use proxies? Of the people you know, what percentage know how to use proxies?” Here is what the student blogger “Undersound” wrote in response:

1. The first question I would prefer a percentage of 5 percent. Most of my classmates and friends just don’t need to resort to proxy. They just view the major websites in China, which would comply with government and have no risk of shut down.

2. It is difficult to view blocked site as for the low speed and inconvenience. So rarely would we use those proxy unless the information is important.

3. Blocked sites are usually consisting of those types: blogs, TaiWan [sic] media, oversea community criticizing Chinese policy. Chinese Internet users tend to focus on some entertainment like online game and chat, rather than some serious subject. So generally those blocked sites had a limited impact. But for someone who are seeking those information it is very annoying.²⁶

This is just one example of many conversations with Chinese Internet users illustrating why Chinese users are not currently using available technologies to circumvent the Internet. Thus, the Great Firewall, while not infallible, is successful enough to keep Chinese public opinion in line. And without a doubt, multinational companies are playing a significant part in preventing Chinese Internet users from stumbling across information that the Chinese government would prefer they did not know existed.

This collaboration with political censorship also appears to run contrary to the wishes of the Chinese people. According to the 2005 CASS Internet survey, the majority of Chinese Internet users surveyed believed that it was necessary for the government to control violent and pornographic content on the Internet. However the study found that most users do not agree that political content should be controlled, and only 12 percent felt that controlling political content is a good idea.²⁷

5. Chinese and International Law

China’s Internet regulations may be among the most extensive and restrictive in the world. At least twelve different government bureaus have some authority over the Internet, including the powerful State Council Information Office, the Ministry of Public Security, and the Ministry of Information Industry, which is in charge of the licensing and registration of all Internet content providers.²⁸ In 2001, Human Rights Watch estimated that the Chinese government had issued more than sixty sets of government Internet regulations;²⁹ many new regulations have been issued since then, all of them increasing government control. The extensive national-level framework is only part of the picture: the national-level regulations coexist with an unknown number of provincial- and local-level implementing regulations, guidelines, policy documents, and other instruments that have legal impact. Regulations in recent years have focused on, among other things, expanding government censorship and control, both to new technology, such as cellphones,³⁰ and to new mediums of expression, like blogs.³¹

Although not all regulations are enforced against every possible individual or entity arguably in violation of the rules––to do so would be almost impossible, given the breadth and vagueness of certain provisions––nonetheless the legal framework does have a significant and immediate impact on the amount of information available online, and the extent to which the Internet can be used as a vehicle for free expression by individual Chinese.

One of the most recent sets of regulations to be issued by the government is the Provisions on the Administration of Internet News Information Services (Provisions on News Information Services), issued jointly by the State Council Information Office (SCIO) and the Ministry of Information Industry in September 2005. The Provisions cover the creation and management of news websites, and are the first new regulations on news websites since the issuance of the Interim Provision on the Administration of Internet Web Sites Engaged in News Posting Operations in 2000.³² Because the Provisions make use of a variety of control methods, including registration requirements, external government supervision, broad-based content restrictions, and administrative penalties for violation of any part of the Provisions, they are fairly representative. The Provisions also make repeated reference to restrictions found in other relevant regulations, thus fully integrating China’s Internet law and assuring that virtually all restrictions apply to all situations.

In the first section, the Provisions on News Information Services make clear that the purpose of news websites is not to inform the public of the facts, but instead to “serve socialism” and to “safeguard the nation’s interests and the public interest.”³³ News with content that does not “serve socialism” is banned.³⁴ News websites are “encouraged” to disseminate news that is “healthy” and “civilized,” and that will “rais(e) the quality of the nation.”³⁵

The key content restriction provision is Article 19, which forbids the following content:

(1) violating the basic principles as they are confirmed in the Constitution;

(2) jeopardizing the security of the nation, divulging state secrets, subverting of the national regime or jeopardizing the integrity of the nation’s unity;

(3) harming the honor or the interests of the nation;

(4) inciting hatred against peoples, racism against peoples, or disrupting the solidarity of peoples;

(5) disrupting national policies on religion, propagating evil cults and feudal superstitions;

(6) spreading rumors, disturbing social order, or disrupting social stability;

(7) spreading obscenity, pornography, gambling, violence, terror, or abetting the commission of a crime;

(8) insulting or defaming third parties, infringing on the legal rights and interests of third parties;

(9) inciting illegal assemblies, associations, marches, demonstrations, or gatherings that disturb social order;

(10) conducting activities in the name of an illegal civil organization; and

(11) any other content prohibited by law or rules.

Prior Chinese government censorship practices suggest the effect of Article 19 extends well beyond the narrow band of information that might truly incite hatred or disturb social order. Instead, such provisions are implemented in a way to prohibit all reporting that reflects a line different from the official government position, or contains information that the government deems too embarrassing, or is too candid in its discussion of particularly entrenched social problems.³⁶

Equally important are the registration requirements created by the Provisions. In general, news information websites must be part of the official media system, and must register with the government in order to begin operation. The Provisions envision a system in which most news websites are extensions of currently-existing news units, although the provisions do allow for a situation in which a non-News Work Unit can establish a new site. Such websites are not permitted to do their own reporting, and are instead limited to reprinting news stories generated by other media outlets.³⁷

Permission to create a news information website is granted by the SCIO, or, in some cases, the information office at the provincial level.³⁸ The requirements for setting up a news website are significant: the applicant must be a legal person, must meet certain staffing and equipment requirements, and must have a clean slate in terms of prior violations of relevant Internet rules.³⁹ Cash-poor startups are also not allowed: all applicant organizations must have registered capital of no less than RMB10,000,000 (roughly U.S.$1.25 million).⁴⁰

The Provisions also create clear legal authority to engage in extensive supervision of news websites. Under Article 4 of the Provisions, supervisory authority is shared by the SCIO and the provincial government information offices. Both the SCIO and the relevant provincial government information office are empowered to carry out “on-site inspections” of the entities set up under the provisions,⁴¹ and can carry out an “examination” of the entity if it is deemed necessary to do so.⁴²

Finally, the penalties laid out in the Provisions are significant. Websites that carry news they are not authorized to carry—news stories produced by their own staff, for example––can be fined anywhere from RMB10,000 to RMB30,000 (U.S.$1,250-3,750); if the circumstances of the infraction are “severe,” then the website can be shut down.⁴³ Article 27 applies same fines to acts of posting material that contains content prohibited by Article 19. There are no provisions on reduced liability for content that has already been published in another official media source, which means that news websites have to make an independent judgment as to whether news material is within the broad confines of Article 19; the fact that the story has already been published elsewhere, and therefore presumably approved by the authorities, provides no legal cover.

The broad content restrictions found in Chinese Internet law and reiterated by the Provisions are impossible to reconcile with the free speech protections found in international law. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) states that:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.⁴⁴

Although the Internet is a new medium, the fact that online speech is covered by the ICCPR and other relevant human rights instruments is reflected in the January 1999 comments of then-UN special rapporteur on the protection and promotion of freedom of opinion and expression, Abid Hussein:

As regards the impact of new information technology on the right to freedom of opinion and expression, the Special Rapporteur considers it of pre-eminent importance that they be considered in light of the same international standards as other means of communication and that no measures be taken which would unduly restrict freedom of expression and information; in case of doubt, the decision should be in favour of free expression and flow of information. With regard to the Internet, the Special Rapporteur wishes to reiterate that on-line expression should be guided by international standards and be guaranteed the same protection as is awarded to other forms of expression.⁴⁵

Under international law, governments are allowed to restrict the free flow of information to protect certain narrowly determined interests such as national security or public morals. But any decision to limit or restrict access to information should comport with international standards for protecting the right to information. Prior censorship in particular is severely disfavored in international law, and not permitted in many constitutional systems. A decision to block access to online material should be subject to the highest level of scrutiny, with a burden on the government to demonstrate that censorship would effectively avert a threat of irreparable, imminent, and weighty harm, and that less extreme measures are unavailable as alternatives to protect the state interest at issue. At present, it seems apparent that China engages in no such scrutiny, and instead censors an immense amount of material that poses no threat to security whatsoever. The decision to censor certain material is often unreviewable, just as the decision to punish certain online speakers merely for exercising their right to speak freely online is arbitrary and unpredictable.

In addition to provisions that limit content and provisions that place severe restrictions on who can and cannot gather and report news, other Internet regulations go beyond granting broad oversight powers and actually compel certain entities to enable themselves to spy on all Internet users at all times. The Rules on Internet Security Protection Technology Measures, issued by the Ministry of Public Security in December 2005, obligate Internet Service Providers and work units that use certain technologies to develop the capacity to track and record the movements of individuals using their service to go online. Article 9(2) of the Rules, for example, creates a legal obligation for ISPs to maintain the technological capability to “record and retain information content and time of dissemination for providers of news, publishing, and electronic bulletin services.” ISPs are required to keep records on websurfers for up to sixty days.⁴⁶

Regulations like these undercut the right to privacy of Chinese web users. Freedom from arbitrary and unlawful interference with one’s privacy and correspondence is protected both under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights,⁴⁷ and applies to electronic communications, including email and newsgroup postings, as well as electronic forms of personal data retained about individuals. Interference that is capricious, unjust or disproportionate would be “arbitrary,” as would interference for a purpose inimical to the protection of human rights more generally, such as inhibiting peaceful dissent. States may not randomly or freely intercept or monitor email or Internet usage.⁴⁸

The United Nations Human Rights Committee, the treaty body that is an authoritative interpreter of state duties under the ICCPR, in a General Comment on the right to privacy, has said:

As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant. […] Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis. [….]

By requiring ISPs to maintain the capability to read the communications of individuals communicating online, and even to be able to keep records of which websites individual netizens choose to visit, the Chinese government is seriously infringing on the privacy rights of its own people. As with violations of freedom of expression discussed above, no particularized determination is made; rather all users are subject to scrutiny.

In addition to the Internet regulations themselves, there are many broader structural problems with China’s legal system that prevent the emergence of a more liberal Internet law regime. One key stumbling block to improved Internet regulation in China is the absence of any enforceable norms against which Internet regulations can be measured. Although the Chinese constitution explicitly protects the right to free expression, the right to privacy, and the right to engage in academic research,⁴⁹ the constitution itself is not directly enforceable, and therefore regulations that clearly violate these rights escape any form of judicial scrutiny.

The overall institutional weakness and lack of independence of Chinese courts also plays a key role. Because most courts in China receive the majority of their funding from the local government,⁵⁰ they are often unable or unwilling to deliver a verdict contrary to the local expectations, especially in politically sensitive cases. Courts are also subject to both government and Communist Party authority, and must please both masters.⁵¹ This lack of independence stifles any legal creativity on the part of judges that might otherwise limit the scope or effect of Internet regulations.

Finally, once an individual has been arrested and charged with a criminal offense in relation to his or her use of the Internet, the serious shortcomings of the criminal justice system in China come into play. Mechanisms for protecting key basic rights, including the right to a fair trial, the right to legal counsel, and the right to presumption of innocence, have yet to be fully integrated into the Chinese legal system,⁵² which means that an individual arrested for violating any laws relating to the Internet that carry criminal penalties will find it difficult to obtain a fair trial.