Regulating the Internet
This chapter first provides basic information about the Internet, including its history, structure, and functions. It then examines why and how the Internet is regulated in China. The regulatory mechanisms examined include laws and regulations, administrative licensing, architectural control, technical protection, administrative enforcement, industry self-regulation, and public supervision. In addition, the chapter briefly discusses the problems with China’s Internet regulation.
The Internet is one of the most important inventions of recent decades. It has fundamentally changed people’s lives, and it is still evolving rapidly. With the explosive growth of the Internet, Internet regulation has become an imperative and challenging issue around the world. The first part of this chapter provides basic information on the Internet, its history, structure, and functions. The rationales for Internet regulation in China and the various regulatory mechanisms – laws and regulations, administrative licensing, architectural control, technical protection, administrative enforcement, industry self-regulation, and pubic supervision – are then examined. The chapter concludes with a brief discussion of problems with China’s current system of Internet regulation.
The term “Internet” refers to a global system of interconnected computer networks in which users/computers are able to communicate with each other. The origin of the Internet dates back to the 1960s when the U.S. Department of Defense funded its research division to build a distributed communications network. Known as the ARPANet, the network connected computers in four universities that were heavily involved in government and military research—Stanford; University of California, Los Angeles; University of California, Santa Barbara; and the University of Utah. The unique advantage of this network was that communications “traffic” would be less likely to become congested at a single point or to be destroyed in the event of military attacks or natural disasters, because multiple paths linked one computer site to another.1 In the 1980s, ARPANet was superseded by NSFNet, a high-speed communications network created by the National Science Foundation. This new network linked computers together across the country. Research in the United States has since generated worldwide participation in the development of networking technologies. Researchers first linked small computer networks to form a large network, and then connected the large networks around the world; thus was born the Internet. Over the past decade, the Internet has experienced explosive global growth: as of June 2010, an estimated one quarter of the global population used Internet services.2
In China, the first computer network—CANET (China Academic Network)—was established in 1986 by the Beijing Institute of Computing Applications, with help from the Universität Karlsruhe in Germany. A year later, the IHEP (Institute of High Energy Physics) in Beijing began connecting to CERN, the European Organization for Nuclear Research in Geneva, representing China’s first international connection. In 1994, the IHEP achieved China’s fully functional connection to the Internet by opening a 64 kbps international dedicated line to the Internet, making China a country with fully functional Internet accessibility. In 1995, the Internet became available to the public through the services provided by China Telecom and ChinaNet, both of which were operated by the government.
The Chinese government plays a dominant, vital role in the development of the Internet.3 From 1997 to 2009, it invested a total of 4.3 trillion RMB, and built up a nationwide optical communications network with a total length of 8.267 million kilometers.4 By the end of 2009, China had established 7 land–submarine cables and 20 land cables, with a combined capacity of more than 1,600 Gb, China’s international outlet bandwidth reached 866,367 Gbps, and China’s major telecommunications companies possessed 136 million broadband Internet access ports.5The large-scale development of Internet infrastructures has greatly enhanced the diffusion and application of the Internet around the country. By the end of 2009, the number of Chinese Internet users reached 384 million, which was 618 times the number in 1997 and represented an average annual increase of 31.95 million users. In 2009, the Internet penetration rate in China reached 28.9%, higher than the world average; the total number of IPv4 addresses reached 232 million, making China the second-largest owner of IPv4 addresses in the world; and the total number of domain names reached 16.82 million, a historic high point.6
Physically, the Internet resembles and is part of existing public telecommunications networks. Large telecommunications companies, called network service providers (NSPs), offer long-distance data transport services through national and international fiber optic cables. These transport services are accessed by individuals and organizations via Internet service providers (ISPs), which are physically linked to NSPs. People connect to ISPs through such channels as dial-up connection, Wi-Fi, and landline broadband. Once connected, they have access to various services provided by the ISPs, including access to the Internet, access to ISP resources, and user resource hosting.7
What technically distinguishes the Internet from traditional telecommunications services is its use of a set of communication protocols that is commonly referred to as Internet Protocol Suite. A protocol is a set of rules or standards that enable computers to connect and transmit data to one another. The Internet Protocol Suite is constructed as a set of layers which includes the application layer, transport layer, Internet layer, and link layer. Each layer solves a set of problems related to data transmission and corresponds to the environment or scope in which its service operates. At the top of the Suite, the application layer “defines the type of information contained in the collection of packets and what is to be done with it.”8 Important protocols in the application layer include HTTP, SMT, POP, IMAP, and FTP. The transport layer provides end-to-end communications services for applications. TCP, the most notable transport protocol, controls how data are sent out on the Internet. At the Internet layer, all transport protocols use the Internet protocol (IP) to carry data from the original host across network boundaries, if necessary, to the destination host. The link layer is the lowest layer in the hierarchy of the Suite. It is used to interconnect hosts between adjacent network nodes in a local area network segment or a wide area network connection. The Internet Protocol Suite is also commonly known as TCP/IP, named from two of the most critical protocols within it. The TCP/IP model breaks down information from one network into packets, allows packets to be repackaged for transmission, and then reassembles them at the receiving computer in another network.
First of all, the Internet provides an infinite amount of information for users to access and retrieve. The World Wide Web plays a particularly important role in this regard: it enables users to access any type of information located on the Web anywhere in the world. The Web has three major components: the Uniform Resource Locator (URL)—the address of content placed on the Web; the hypertext transfer protocol (HTTP)—the primary protocol used by Web servers and browsers for sending and receiving documents on a website; and the hypertext markup language (HTML)—the programming language used to create Web pages and links.9 Although the Web has grown immensely in complexity in the past decade, these three basic elements remain central to its operation. Also, Web browser software such as Firefox and Internet Explorer enables users to navigate from one Web page to another. Additionally, through the use of keywords, Internet search engines like Google and Baidu10 allow users to locate their desired, specific content in the sea of online information nearly instantly.
Second, the Internet provides an effective tool for users to communicate with each other. Among the various communication tools, e-mail is arguably the most important. E-mail refers to a message sent from one computer user to another across a network. Major portal sites like Yahoo! and Microsoft have offered free e-mail accounts to attract users to their sites, and e-mail communication is in fact the first Internet activity for many users. Communication on the Internet has grown beyond e-mail, however. Users now can chat with one another in real time through instant messaging (IM) services. Major global IM services include Skype, Microsoft’s MSN, and Yahoo!’s Messenger. In China, the most popular instant messaging program is provided by Tencent QQ, whose simultaneous online users exceeded 100 million in 2009.11Most of these services are free, but they do not adhere to a common standard. Usersthereforehavetobeusingthesameprograminorderto communicate with each other via instant messaging. Another communication service enabled by the Internet is Internet telephony, also known as Voice-over-Internet Protocol (VoIP). As the Internet carries the voice traffic, VoIP can be free or cost much less than traditional telephone services, though its voice quality still varies from call to call. In addition, due to the development of webcam technologies, the new communication tools video chat room and video conferencing are becoming increasingly popular among users.
Third, large amounts of data can be transferred over the Internet. A major practice in this regard is file sharing, which refers to the distribution or the provision of access to digitally stored information, such as music, film, video, photography, electronic books, and computer programs. There are two types of file sharing: peer-to-peer networks and file hosting services. In the peer-to-peer networks, users can use software like Gnutella and Napster to search for and directly download shared files from other users’ computers that have been connected to the network. File hosting services are a simple alternative to peer-to-peer software. They are specifically designed to host static content, which can be accessed through file transfer protocol (FTP). File hosting services typically include video sharing, visual storage, and remote backup. In all these applications, access to the file may be controlled via user verification, and the transfer of the data may be obscured by encryption.12
Last, the Internet has been evolving rapidly as a mass medium, though the path it follows remains unclear. This process involves a number of players, most of which are referred to as Internet content providers (ICPs). The major players include traditional newspapers such as the New York Times, Wall Street Journal and the People’s Daily13 that publish news online; existing radio/television broadcasters and movie studios that develop streaming media to promote Internet “feeds” of their live audio and video programs; and new media publications like Slate and Salon that have no traditional print components. There are also aggregate sites such as Yahoo!, Google, and Sina14 that put together an enormous amount of Internet content and then help people to find specialized information. More important is the emergence of user-generated sites, such as weblogs, video-sharing sites, picture-sharing sites, wiki websites, and social networking sites. These new types of site can be operated by anyone who has a computer, an Internet account, and something to say; they open up the world of publication and broadcasting to the general public.
Since the popularization of the Internet in 1995, China has actively pursued the regulation of the Internet. For the Chinese government, the objectives of regulating the Internet are “to promote general and hassle-free Internet accessibility, and sustainable and healthy development, guarantee citizens’ freedom of speech online, regulate the order of Internet information transmission, promote the positive and effective application of the Internet, create a market environment for fair competition, guarantee the citizens’ rights and interests as vested in the Constitution and other laws, and guarantee safety for Internet information and state security.”15 In practice, China has built up a highly complicated system for regulating the Internet, which mainly involves legal regulations, administrative licensing, architectural control, technical protection, administrative enforcement, industry self-regulation, and public supervision. Legal regulation is reviewed in this section, while other mechanisms are addressed in the following two sections.
In 1996, the State Council promulgated Provisional Regulations for the Administration of International Connection of Computer Information Network, which is considered China’s first attempt to regulate the Internet. This regulation aimed at strengthening the control of computer information networks connecting to the international network, and safeguarding the healthy development of international computer information exchange. In September 2000, the executive meeting of the State Council passed the PRC Telecommunications Regulations, in which the Internet was included as an integral part of telecommunications business and thereby subjected to telecommunications regulations. During the same meeting, the State Council also passed the Administrative Measures for Internet Information Services, which in fact functions as China’s “fundamental law” on the administration of Internet services. This “fundamental law” provides the legislative basis for the subsequent introduction of various Internet regulations, including Administrative Provisions on Electronic Bulletin Service, Interim Provisions on the Administration of Internet Publishing, Administrative Provisions on Internet Audio-Visual Programs, Interim Provisions on the Administration of Internet Culture, Administrative Provisions on Internet News Service, and Interim Administrative Measures on the Registration of Internet Domains in China.
The above-mentioned administrative regulations are not only purported to solve specific problems in cyberspace but also establish Internet jurisdiction for administrative agencies. In accordance with the PRC Telecommunications Regulations, the Internet is part of the telecommunications business, and its major regulator is the Ministry of Industry and Information Technology (MIIT), which sets up subordinate telecommunications regulatory agencies in all Chinese provinces, autonomous regions, and municipalities.16 In addition, the Internet is subject to regulation by many other administrative organs for the provision of specific Internet services. For example, websites engaging in Internet publishing are regulated by the General Administration of Press and Publication (GAPP) and its local subordinates; websites providing audio-visual programs are regulated by the State Administration of Radio Film and Television (SARFT) and its local subordinates. To date, at least 14 regulatory agencies have been involved in Internet regulation, and these agencies have promulgated more than 50 administrative rules and regulations on the Internet. It is thus said that China has built up the most comprehensive system of Internet regulation.17
In 2000, the NPC Standing Committee passed the Decision on Safeguarding Internet Security, which is the highest legislation concerning the Internet and the communications industry in general. The Decision argues that the Internet has played an important role in facilitating the development of the national economy, science and technology, and the informationalization of social services; meanwhile, it has also aroused general concerns about how to ensure the operational and information security of the computer network. The purpose of enacting the Decision was to enhance the healthy development of the Internet, safeguard national security and the public interest, maintain social order and the socialist market economic order, and protect the lawful rights and interests of individuals, legal corporations, and other organizations. This is essentially the focus of the whole legal system concerning the Internet. The main contents of the Decision are as follows:
1. For the purpose of ensuring the operational security of the computer network, anyone who commits any of the following acts, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the relevant provisions in the Criminal Law:
(2) intentionally inventing and spreading destructive programs such as computer viruses to attack the computer system and the communications network, thus damaging the computer system and the communications network; or
(3) in violation of state regulations, discontinuing the computer network or the communications service without authorization, thus making it impossible for the computer network or the communications system to operate normally.
2. For the purpose of preserving the security of the State and maintaining social stability, anyone who commits any of the following acts, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the relevant provisions in the Criminal Law:
(1) making use of the computer network to spread rumors, libels or publicize or disseminate other harmful information for the purpose of whipping up attempts to subvert state power and overthrowing the socialist system, or to split the country and undermine unification of the State;
3. For the purpose of maintaining order of the socialist market economy and ensuring the administration of public order, anyone who commits any of the following acts, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the relevant provisions in the Criminal Law:
(5) establishing on the computer network pornographic websites or web pages, providing services for connecting pornographic websites, or spreading pornographic books and periodicals, movies, audiovisuals or pictures.
4. For the purpose of protecting the lawful rights of the person and property of individuals, legal corporations and other organizations, anyone who commits any of the following acts, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the relevant provisions in the Criminal Law:
In addition, the Decision stipulates that anyone who makes use of the Internet to commit any of the above-mentioned illegal acts that is in violation of the administration of public security but does not constitute a crime, shall be punished by the public security organ; anyone whose illegal acts violate administrative regulations or other laws and do not constitute a crime, shall be given administrative punishment by the relevant regulatory agency; and anyone who makes use of the Internet to infringe on another person’s lawful rights and interests and whose illegal acts constitute a tort, shall be bear civil liability in accordance with the law.
It should be noted that China’s Internet laws and regulations are basically developed from existing laws, combined with the characteristics of the Internet. The major goal of China’s legislation on the Internet is to illustrate the application of existing laws to the Internet. For example, the Decision on Safeguarding Internet Security confirms that many crimes stipulated in the existing Criminal Law apply to the Internet. In order to safeguard national security and social stability, the Decision reiterates the crime of inciting secession stipulated in Article 103, the crime of inciting the subversion of state power in Article 105, the crime of illegally obtaining state secrets in Article 282, the crime of disclosing state secrets in Article 398, the crime of inciting ethnic hatred or ethnic discrimination in Article 249, and the crime of organizing and using cults to undermine law enforcement in Article 300 of the PRC Criminal Law; and in order to protect the lawful rights and interests of individuals, legal corporations, and other organizations, the Decision reiterates the crime of insult or libel provided in Article 246, the crime of infringing upon the right to freedom of correspondence in Article 252, the crime of fraud in Article 266, the crime of theft in Article 264, and the crime of extortion in Article 274 of the Criminal Law. On the other hand, since the Internet has many new features, it is sometime necessary to make certain adjustments to existing laws in order to resolve legal disputes arising from cyberspace. For example, the provisions on “intercepting, tampering with or deleting other persons’ e-mails or other data, thus infringing on citizens’ freedom and privacy of correspondence” included in the Decision are obviously an extension of the Criminal Law provisions on “illegally opening others’ mail.” To conclude, Internet activities need to comply with China’s current Constitution, criminal law, civil law and other Internet-related basic laws; they should also follow new legislation that focuses on the Internet. This will be discussed in detail in the following chapters.
China’s other important means of controlling the Internet is by implementing the administrative licensing system. The term “administrative licensing” refers to the permission granted by the administrative organs to citizens, legal corporations or other organizations to engage in special activities as detailed in their applications. In 2003, the NPC Standing Committee passed the Administrative Licensing Law. It provides for administrative licensing to be established by laws; if such kinds of laws have not been enacted, it can be enabled through administrative regulations; and, when necessary, the State Council may issue a decision to establish administrative licensing. However, the Administrative Licensing Law does not give powers to establish administrative licensing to departments of the State Council, in order to prevent self-authorization and subsequent abuse of power by the departments. In addition, the administrative licenses that have already been released by the departments may be confirmed by the State Council by the enacting of administrative regulations.
China’s Internet-related regulations have set up numerous administrative licenses. This allows the government to exercise direct or indirect control over Internet users, as well as over Internet service providers, for the purpose of protecting civil rights, public interest, and national security. At present, China’s licensing tool is primarily used for value-added telecommunications services, news and information services, online audio and video programs, Internet publishing, and Internet-related cultural enterprises.
China has a licensing system for the operation of telecommunications business, which is divided into basic telecommunications services and value-added telecommunications services. Basic telecommunications services refers to the provision of the public network infrastructure, public data transmission, and basic voice communications services, such as fixed telephone services, mobile phone services, network and data communication services, and information services. Value-added telecommunications services refers to the telecommunications and information services provided through the public network infrastructure, such as Internet access services and Internet content services.
Under the PRC Telecommunications Regulations and the Administrative Measures for the Licensing of Telecommunications Business Operation, the following conditions must be met in order to operate basic telecommunications services: the operator should be a legally established company that specializes in basic telecommunications services and the state-owned shares of the company should be not less than 51%; there should be a feasible business development plan and a relevant technical plan for formation of the network; there should be suitable funds, facilities, and specialized personnel to carry out business activities; the operator should have the capability and/or reputation to provide a long-term service to its customers; if the operator provides services only within a province, the minimum registered capital should be 100 million yuan; if the operator provides services nationwide or across provinces, the minimum registered capital should be 10 billion yuan; and the major shareholders and executives of the company should not have a record of violating telecommunications regulations over the past three years.
In a similar vein, the PRC Telecommunications Regulations and the Administrative Measures for the Licensing of Telecommunications Business Operation also mandate that the following conditions shall be met in order to operate value-added telecommunications services: the operator should be a legally established company; there should be funds and specialized personnel commensurate with the business activities to be developed; the operator should have the capability and/or reputation to provide a long-term service to its customers; the minimum registered capital for operating business within a province should be 1 million yuan; the minimum registered capital for operating business nationwide or across provinces should be 10 million yuan; the operator should have the necessary facilities, physical space, and technology plans; and the company’s key shareholders and management personnel should have no record of violating telecommunications regulations over the past three years.
The MIIT is charged with the licensing of basic telecommunications business as well as value-added telecommunications services that are provided across provinces. The subordinates of the MIIT in a province are responsible for the licensing of value-added telecommunications services that are mainly operated within that province. Foreigners may invest in China’s telecommunications business, including both basic telecommunications services and value-added telecommunications services. The licensing of foreign-funded telecommunications business18 shall be under the Administrative Provisions on Foreign-Funded Telecommunications Enterprises.19
In the Administrative Measures for Internet Information Services, Internet information services are defined as the service activities of providing information services through the Internet to online users. There are two types of Internet information service: commercial and non-commercial services. Commercial Internet information services refers to the paid-for provision of information services to online users via the Internet, website production, and etc. Non-commercial Internet information services refers to the unpaid provision of public information to online users via the Internet. The government registers commercial Internet information services in a licensing system and non-commercial Internet information services in a record-filing system. No one may engage in the provision of Internet information services without first obtaining a license or carrying out record-filing procedures.
Under the Administrative Measures for Internet Information Services the following conditions must be met in order to engage in the provision of commercial Internet information services: having a business development plan and a relevant technical plan; having in place sound procedures to ensure network and information security, including procedures to ensure network security, a system to preserve state secrets, and a system to protect user privacy; and if the services to be provided fall under the services covered in Article 5 thereof,20 having obtained the written consent of the relevant competent authority.
The above-mentioned “procedures to ensure network security” mainly refer to the requirements proposed in the Administrative Measures for SafeguardingtheSafetyofInternationalConnectingofComputer Information Networks, which was promulgated in 1997 by the Ministry of Public Security. These requirements include: implementing technical measures to protect the operational and information security of the network; educating its users on the issue of network security; registering individuals and organizations that publish information on the website; establishing user registration and an information management system for its electronic bulletin services; and deleting harmful or illegal information from the website or even closing down the website when necessary.
As for “the system to preserve state secrets,” this means that the operator of Internet information services shall follow a set of requirements stipulated by the State Secrecy Bureau in the Administrative Provisions on the Preservation of State Secrets in the International Networking of Computer Information System. These requirements mainly include: computer information systems involving state secrets may not be directly or indirectly connected to the Internet or other public information networks; information involving state secrets may not be stored in, processed on, or transmitted through computer information systems which are internationally networked; any information to be provided to, or published on, an internationally networked website must be subjected to secrecy maintenance review and approved by the relevant government agency; except for information which has been published through other news media, individuals or organizations shall obtain the permission of the information provider before publishing any information which has been collected for public use; and no individuals or organizations may disseminate state secrets via e-mail, in chat rooms, or on electronic bulletin boards.
Current prevailing practices to establish “the system to protect user privacy” include: setting full access permission for users; ensuring effective management and protecting the confidentiality of user information; designating personnel to keep web access records; establishing the liability system for information editing, auditing, and publishing; setting the bounds of Internet service providers’ authority over user information management; and in the event of privacy disclosure, taking effective measures to stop it and also reporting it to the relevant government organ.
Anyone who plans to engage in the provision of commercial Internet information services shall apply to the MIIT or its province-level subordinates for a value-added telecommunications service operating permit. Anyone who plans to engage in the provision of non-commercial Internet information services shall go through record-filing procedures with the MIIT’s province-level subordinates, including submitting the application materials such as the basic information about the Internet service provider, and the website’s URL and the services to be provided. One important part of Internet information services is electronic messaging services. This refers to the services that enable users to publish information on the Internet in an interactive form, such as bulletin boards, whiteboards, discussion forums, chat rooms, and message boards. According to the Administrative Measures for Electronic Mail Services, if an Internet service provider plans to launch electronic messaging services, it should meet the following conditions: having determined the categories of electronic messaging services; having formulated the rules and procedures for such services; having adopted measures to ensure the operational security of such services; and having found appropriate professional administrative personnel and technical personnel to effectively monitor such services.
Under the Administrative Provisions on Internet News Services, “news” includes reports and commentaries on social and public affairs; “Internet news services” includes online publication of news and commentaries, distribution of news and commentaries to users through e-mail or news groups, and provision of electronic bulletin boards on which users can discuss current and political affairs. There are three types of website that are allowed to provide Internet news services, each of which needs to meet certain but different requirements in order to obtain an operating license.
The first type of website is established by traditional news media, and it is allowed to publish news and commentaries beyond the scope of what has been published by the media outlet in original format, provide electronic bulletin board services on current and political affairs, and send news and commentaries to Internet subscribers through e-mail or news groups. To establish an Internet news service website, the traditional news organization needs to meet the following requirements: have sound rules and mechanisms for administration of Internet news services; have five or more full-time news editors who have engaged in journalism for three or more years in news organizations; and have the necessary equipment, funds, and facilities to operate the website. In fact, only news organizations directly under the central or provincial government are allowed to operate this type of website; and they should apply for operating permits to the Information Office of the State Council.
The second type of website is established by non-news media organizations, and it is not allowed to publish news collected by itself, but needs to disseminate news and commentaries published by the news organizations directly administered by the central or provincial government. To establish this type of website, the applicant should meet the following three requirements, i.e., have sound rules and mechanisms for administration of Internet news services; have ten or more full-time news editors, of whom at least five have engaged in journalism for three or more years in news organizations; and have the necessary equipment, funds, and facilities to operate the website. The applicant must be a legal person who has engaged in Internet business for over two years, and also has no record of violating relevant laws and regulations during the past two years. If the applicant is a legal corporation, its registered capital should not be less than 10 million yuan. Similarly, the applicant should apply to the Information Office of the State Council for operating permits.
The third type of website is also established by traditional news media, but it is only allowed to publish news and commentaries which have already been published in original format by those media. To establish this type of website, the applicant needs to carry out the record-filing procedure with, instead of obtaining permit from, the Information Office of the State Council or its local subordinates in provinces.
Traditional news media include newspapers, magazines, radio stations, television stations, and news agencies established in accordance with the law. It is obvious that the purpose of implementing the above-mentioned licensing or record-filing mechanisms is to ensure that all news and commentaries on the Internet are provided only by traditional news media, and eventually to help the government control the dissemination of harmful or illegal information on the Internet.
News media organizations are allowed to cooperate with non-news media organizations in providing Internet news services. If 51% or more of equity interest in the news website is owned by the news organization, the website will be regarded as established by a news media organization; otherwise, it will be regarded as established by a non-news media organization. It should be noted that such cooperation is open only to domestic enterprises. At present, no organization is allowed to provide Internet news services in the form of a Sino-foreign equity joint venture, Sino-foreign cooperative joint venture, or wholly foreign-owned enterprise.
Under the Administrative Provisions on Internet Audio-Visual Programs, Internet audio-visual program services refers to the activities of producing or editing audio-visual programs, and providing the programs to the general public via the Internet; they also include providing services for the public to upload and disseminate audio-visual programs. To launch Internet audio-visual program services, the service provider must meet the following requirements: be a state-owned or state-controlled enterprise and have no record of law violation within the three years before the date of application; have sound institutional arrangements and technical measures to protect information security; have the necessary facilities, equipment, technology, and funding to launch the services; have technical solutions in line with national standards, industry standards, and technical formats, etc. The SARFT is in charge of the regulation of Internet audio-visual programs. The service provider should apply to the SARFT for an operating permit.
It should be pointed out that under the Administrative Provisions on Internet Audio-Visual Programs, only state-owned or state-controlled enterprises are eligible to apply for a permit to provide Internet audiovisual program services; private and foreign enterprises are not allowed to enter this field of business. The introduction of this provision generated much concern within the Internet industry, since the majority audio-visual websites were in fact established by private enterprises, which were often funded by foreign venture capital. Responding to pressure from the industry, the SARFT later provided a written explanation, allowing such websites to continue to operate as long as they had no record of violating the law.
In the Interim Provisions on the Administration of Internet Publishing, Internet publishing refers to the situation whereby Internet service providers select, edit, and process works created by themselves or others and subsequently publish such works on the Internet or send such works to users via the Internet. The works mainly include: (i) the content of publications such as books, newspapers, periodicals, audio and video products, electronic publications or works that have been made public in other media; and (ii) edited works of literature, art, natural science, social science, engineering technology, etc. Internet publishers refers to Internet content providers that engage in Internet publishing business with the approval of the GAPP and the MIIT. There are currently four types of Internet publisher, i.e., websites established by existing publishing houses as a supplement to their traditional format of publication; websites specializing in Internet publishing, including the publication of online literature, online games, and online music; Internet journals or e-book sections launched by portal websites as part of their Internet business; and online publishing generated by digital libraries. To engage in Internet publishing, the website operator must meet the following requirements, i.e., have a definite scope of publication; have articles of association that comply with laws and regulations; and have the necessary funds, equipment, facilities, and personnel. In addition, the website operator needs to submit an application to the GAPP for review and approval.
In the Interim Provisions on the Administration of Internet Culture, Internet cultural products are cultural products produced for and disseminated through the Internet, which mainly include audio/video products, game products, live shows, art, and cartoons on the Internet. Internet cultural activities refers to the activity of providing Internet cultural products and services, which mainly include: (i) the activities of producing, reproducing, importing, wholesaling, retailing, leasing or broadcasting Internet cultural products; (ii) the activities of publishing cultural products online, or sending cultural products through the Internet to such user devices as computers, fixed telephones, mobile phones, radios, TV sets, games consoles, etc. for individual use; and (iii) the activities of displaying Internet cultural products or holding contests on Internet cultural products. In addition, Internet cultural activities are also divided into commercial and non-commercial ones. Commercial Internet cultural activities refers to the provision of Internet cultural products and services for profit by charging Internet users or by advertisement, sponsorship, or electronic commerce. Non-commercial Internet cultural activities refers to providing Internet users with Internet cultural products and services not for the purpose of making profits.
Under the Interim Provisions on the Administration of Internet Culture, to engage in Internet cultural service, the enterprise must meet the following conditions: have a definite scope for Internet cultural activities; have a legal name, physical site, organizational structure, and articles of association; and have the necessary funds, equipment, facilities, and personnel. Furthermore, to launch commercial Internet cultural activities, the enterprise must have at least 1 million yuan of registered capital and at least eight professional editors and technicians. Enterprises that intend to provide Internet cultural products and services should apply to the Ministry of Culture for review and approval. Foreign enterprises are currently excluded from investing in Internet cultural business in China.
Along with legal regulation and administrative licensing, China has also adopted several other mechanisms to regulate the Internet. First, China advocates the use of architectural means for effective administration of the Internet. Specifically, China divides Internet networks into two categories: backbone networks and access networks. Backbone networks directly connect to international websites through international leasing circuits. Access networks, commonly referred to as ISPs, are those networks that link indirectly to the international Internet; they are required to obtain such a link through the backbone networks. There are four backbone networks in China, all of which are controlled and administered by government agencies. They include the MIIT’s CHINANET and CHINAGBN, the Ministry of Education’s CERNET, and the Chinese Academy of Science’s CSTNET. All connections to international websites are required to go through MIIT’s international gateway, and only backbone operators are permitted to link directly to the international Internet via that gateway. Through the use of backbone networks and the gateway, China is able to increase its capability to monitor Internet content and Internet users, while maintaining MIIT’s monopoly of the international gateway. On the other hand, diversity and competition are recognized and established, since there are at least four backbone networks that compete with one another. In addition, there is no specific attempt to centralize the ownership of access networks, which are encouraged to coexist and compete.
Second, China advocates the use of technical means to control the Internet. Indeed, almost all major telecommunications operators and Internet content providers are required to take technical measures to prevent the dissemination of illegal and harmful information in cyberspace.Themostfrequentlyusedtechniquesincludekeyword filtering and selective website blocking, both of which are primarily conducted at the router level. Routers are devices that forward packets of data along computer networks. In China, routers are programmed to channel URLs through proxy servers, which act as intermediaries for requests from clients seeking resources from other real servers. Proxy servers may look for, say, politically sensitive words and then send back error messages to the client who requested the information. Websites are blocked in a similar manner. As in other countries, there are many ways to get around such blocking. But the Chinese government has been constantly updating its technical monitoring system, in which the Golden Shield Project is gaining much attention. Beginning operation around the country in 2003, this project aims to establish an all-encompassing surveillance network that integrates such data and applications as credit records, closed-circuit television, face and speech recognition, and Internet monitoring technologies. The major monitoring techniques in the project include IP blocking, DNS filtering and redirection, URL filtering, packet filtering, and connection resetting. Despite these kinds of effort, the effectiveness and consequences of China’s technical control of the Internet remain unclear.21
Third, administrative enforcement actions are also employed, especially when the government regards such actions as necessary for resolving certain urgent problems. In 2002, for example, following a fire in an Internet café in Beijing that killed 24 people, the authorities shut down more than 3,000 Internet cafés in Beijing.22 The implication for Internet cafés is that, in order to stay in business, it is necessary to adhere to the relevant regulations. In 2009, in order to stop the spread of online pornography, violence, and indecency, the authorities reviewed 1.8 million websites across the country, among which 16,000 pornography sites as well as 136,000 unregistered sites were shut down.23 Rigorous administrative enforcements like these may help the authorities to quickly achieve their regulatory objectives, but they may also have a suppressing effect on the development of the whole industry. It is argued that, in the long run, abnormal measures cannot be a real solution to increasingly complicated problems that occur in relation to the Internet.24
Fourth, China actively encourages self-regulation within the Internet industry. The most notable example is the establishment of the Internet Society of China (ISC). This is a national organization that was co-established in 2001 by more than 70 Internet-related entities, including Internet technology providers, Internet service providers, Internet content providers, and research and education organizations. This organization has issued a series of self-disciplinary regulations, such as the Public Pledge of Self-Discipline for China’s Internet Industry, the Public Pledge of Self-Discipline on Anti-Internet Virus, and the Declaration of Self-Discipline on Copyright Protection of China’s Internet Industry. These disciplines are expected to be obeyed by all of its members. The ISC has arguably contributed to the healthy development of the Internet. It is reported that the organization has helped to reduce the global percentage of Chinese spam e-mail from 23% in 2002 to 4.1% in 2009. 25
Finally, the Chinese government asks each individual and company to be responsible for what is published online, thus making everyone his own self-censor.26 The government also solicits help from its citizens in order to effectively monitor Internet content. This practice is sometimes referred to as public supervision. Since 2004, the government has established a network of online reporting centers, which include the China Internet Illegal Information Reporting Center, Network Crimes Reporting Websites, 12321 Harmful and Spam Internet Information Reporting and Reception Center, 12390 Pornography Crack-Down and Press and Publication Copyright Joint Reporting Center. These reporting systems include a component of reward that encourages citizens to report illegal or harmful information. It is reported that by October 2004, 50 citizens had been rewarded 500 to 2,000 RMB for reporting pornography and 18 citizens had been rewarded 3,000 to 10,000 RMB for reporting illegal online gambling.27
China may be successful in achieving some of its regulatory objectives, but there are several problems that are deserving of discussion. One of the major problems is that the system arguably puts much more emphasis on government intervention than on other mechanisms such as self-regulation or market regulation. It is widely recognized that government intervention should be adopted mainly as a response to market failure, rather than play a central, dominant role in the market-oriented economy. Indeed, the Chinese government clearly acknowledges this supplemental approach. For example, Article 13 of the Administrative Licensing Law prescribes that if a target problem can be solved by individuals and organizations themselves, or can be effectively regulated by the mechanism of market competition, administrative licensing should not be pursued. In practice, however, China’s Internet regulators can hardly meet this kind of requirement. They have not clearly identified what aspects of the Internet should be regulated and what aspects should not be managed. Neither have they found a way to help the Internet market to correct its own problems. Although self-regulation mechanisms like the ISC have been established, they are still a result of governmental coordination, to a large extent.
In the area of government intervention, the current system of regulation arguably stresses the imposition of restrictions on Internet activities rather than protecting the rights of participants. So far the most important legislation regarding the Internet is the Decision on Safeguarding Internet Security enacted by the NPC Standing Committee in 2000. The main part of the resolution is specification of the criminal or administrative punishment for behaviors that may endanger the safety of Internet operation or for individuals who conduct illegal activities through the Internet. Most of the subsequent Internet regulations also focus on preserving order in cyberspace and stipulating the liabilities for Internet users and business operators who violate the law. It is argued that the emphasis of China’s Internet legislation is currently on restricting the rights of Internet users, while the objective of legislating for the protection of their rights remains unfulfilled.28
In addition, many Internet regulations are not operable in practice. Take as an example the Interim Provisions on the Administration of Internet Websites Engaged in News Posting Operations promulgated by the State Council Information Office (SCIO) in 2000. Article 14 of the Interim Provisions provides that “the linking of an Internet site to a news website outside China and the publication of news released by news media and Internet sites outside China must be specifically reported for approval to the SCIO.” This provision attempts to impose some restrictions on the publication of foreign news. But it does not indicate how to handle foreign news that has been published by domestic newspapers and magazines. Do Internet publishers still need to apply for approval from the SCIO in this case? Operational problems like these also exist in many other regulations on the Internet.
It can be concluded that China’s regulatory regime for the Internet is highly complicated. Although different agencies promulgate laws and regulations to respond to different aspects of the Internet, there are often overlaps or even conflicts among their jurisdictions. For example, Article 15 of the Interim Provision on the Administration of Internet Websites Engaged in News Posting Operations stipulates that if anyone publishes news without permission, the SCIO or its subordinate provincial offices will issue a warning or order rectification within a given time frame; or, if the offender has already obtained permission but violated relevant laws regarding online news publishing, the information offices have the right to revoke such permission. This Interim Provision was promulgated by the SCIO, but the Administration of Internet Information Service Procedure, which is promulgated by the State Council and has a higher authority than the Interim Provision, does not give the SCIO the aforementioned power. Another example of conflicting jurisdictions involves the nationwide movement on curbing Internet indecency that was discussed earlier. A total of seven agencies joined this movement. Some ISP owners complained that they did not know which agency they should report to because all of the agencies claimed to have ruling power over their websites.29 In the following chapters, we will find that China’s regulations on the Internet are becoming increasingly complicated, and are in need of clarification in order to be better understood.
1.Richard Campbell, Christopher R. Martin, and Bettina Fabos (2008) Media and Culture: An Introduction to Mass Communication, 6th edition, Boston, MA: Bedford/St. Martin, p. 45.
3.Since the advent of the Internet, the Chinese government has worked out a series of policies, identifying phased priorities to boost Internet development across the country. As early as 1997, the government formulated the 9th Five-Year Plan for State Informationization and the Long Range Objective for the Year 2010, which included the Internet as part of the national information infrastructure and set the goal of facilitating national economic informationization through rigorous development of the Internet. In 2002, the government promulgated the Specialized Plan for Informationization in the 10th Five-Year Plan for National Economic and Social Development, setting up electronic government, electronic commerce, and the software industry as the development priorities. In 2006, the NPC passed the 11th Five-Year Plan for National Economic and Social Development, advocating the integration of the networks of telecommunications, radio, television, and the Internet. In 2007, the 17th National Congress of the Communist Party of China (CPC) developed the strategy of “developing modern industrial systems, integrating informationization with industrialization, and transforming scale-oriented industries into strength-oriented industries.” These strategic policies contributed directly to the rapid development of the Internet in China.
4.See State Council Information Office (2010) The White Paper on the Internet in China. The original, Chinese version of the document can be retrieved from http://www.scio.gov.cn/zfbps/ndhf/2010/201006/t662572. htm; its English translation can be retrieved from http://www.chinadaily. com.cn/china/2010-06/08/content_9950198.htm.
5.See State Council Information Office (2010) The White Paper on the Internet in China.
7.Chris Reed (2004) Internet Law: Text and Materials, 2nd edition, Cambridge, UK: Cambridge University Press.
8.Chris Reed (2004) Internet Law: Text and Materials, 2nd edition, Cambridge, UK: Cambridge University Press, p. 13.
9.Ralph E. Hanson (2008) Mass Communication: Living in a Media World, 2nd edition, Washington, DC: CQ Press.
10.Currently the No. 1 search engine in China, Baidu.com, provides Chinese and Japanese language Internet search and community services. Its search service allows users to find such online data as web pages, news, images, maps, blogs, and multimedia files. It also offers Baidu Baike, an online collaboratively built encyclopedia, and a searchable keyword-based discussion forum.
13.The People’s Daily is an organ of the Central Committee of the Communist Party of China (CPC), providing direct information on the policies and viewpoints of the Party. It is published worldwide with a circulation of 3 to 4 million; it also maintains an online presence at peopledaily.com.cn.
15.See State Council Information Office (2010) The White Paper on the Internet in China.
16.Before 1994, there was a power struggle between the former Ministry of Posts and Telecommunications (MPT) and the former Ministry of Electronics Industry (MEI) over the control of the Internet. These agencies held different interests and could not work together, consequently stifling the development of the Internet. The State Council thus created the National Joint Conference on State Economic Informationization in 1994, which was reorganized into the Steering Committee of National Information Infrastructure (NII) in 1996. However, the Steering Committee was seriously handicapped in its decision-making power since it lacked legislative power, financial means, and political support. In order to solve the problem of constant power struggle, China combined the MPT with the MEI and created the Ministry of Information Industry (MII) in 1998. This super ministry was responsible for the regulation and development of software, information, and telecommunications industries. In March 2008, the Ministry of Industry and Information Technology (MIIT) was established, superseding the MII as the major regulator of the information industry. Regarding the Internet, the MIIT is specifically in charge of the planning and administration of Internet infrastructure, the licensing or filing of Internet-related businesses, and the allocation and coordination of electronic bandwidth, domain names, and Internet addresses.
17.Yongzheng Wei (2006) Lectures on Journalism and Communication Law, 2nd edition, Beijing, China: Renmin University of China Press.
18.Foreign-funded telecommunications enterprises refer to Sino-foreign equity joint ventures that are jointly invested in and established in China by foreign investors and Chinese investors in accordance with the law and that are engaged in the provision of telecommunications services.
20.According to Article 5, the provision of Internet information services concerning news, publishing, education, medical treatment, health, and pharmaceuticals or medical apparatus must be reviewed and approved by the relevant authority.
21.See Ronald J. Deibert (2002) “Dark Guests and Great Firewalls: The Internet and Chinese Security Policy,” Journal of Social Issues 58, pp. 143–159; Jason Lacharite (2002) “Electronic Decentralization in China: A Critical Analysis of Internet Filtering Policies in the People’s Republic of China,” Australian Journal of Political Science 37, pp. 333–346; Bin Liang and Hong Lu (2010) “Internet Development, Censorship, and Cyber Crimes in China,” Journal of Contemporary Criminal Justice 26:1, pp. 103–120.
22.Guosong Shao (2010) “China’s Regulations on Internet Cafes,” China Media Research 6:3, pp. 26–30.
23.Tianai Wu and Xiaoyu Wu (2010) “The Internet Is Being Strictly Regulated in China,” IT Times, March 25.
24.Tianai Wu and Xiaoyu Wu (2010) “The Internet Is Being Strictly Regulated in China,” IT Times, March 25.
25.See State Council Information Office (2010) The White Paper on the Internet in China.
26Lokman Tsui (2003) “The Panopticon as the Antithesis of a Space of Freedom: Control and Regulation of the Internet in China,” China Information 17, pp. 65–82.
27.Michelle W. Lau (2005) “Internet Development and Information Control in the People’s Republic of China,” CRS Report, November 22, retrieved July 15, 2010 from http://www.cfr.org/publication/9844/crs_report.html,
29.See Tianai Wu and Xiaoyu Wu (2010) “The Internet Is Being Strictly Regulated in China,” IT Times, March 25.