The Hidden Downside of China's Draft Telecom Bill

The People’s Government of China has recently circulated a draft telecommunications law which contains 102 Articles broken into 13 Chapters, included a currently omitted Chapter entitled ‘Legal Liabilities.’ [i] The new legislation is meant to replace the September 25 of 2000 Telecommunications Regulations of the People’s Republic of China [ii] which contains 81 articles in 7 parts. Though certain parts of the bill remind one that China is still very much in the transition stage from a planned economy to a Western-style capitalist state, these are not the areas where fault can be found. This is because it is drafted in a way that will encourage investment and growth in the telecom sector, even investment from foreign companies. In fact, it provides very meaningful guidance on foreign investment, lending transparency where many foreigners have complained of confusing red tape. [iii] In my opinion, what is much more troublesome is the way that the bill retains the government’s right to stifle free speech and communication.

The most notable examples of this are Articles 4 and 5 which, when read together, seem to allow the state unfettered abilities to control speech, and the chapter on security. Article 4 begins by stating that the freedom and privacy of communications is protected by law. It then explains that the State may infringe this freedom in the name of security. And, Article 5 states that no one may use telecommunications networks to engage in activities that jeopardize State security, public security, or social and public interests. A textual argument could be made based on these two clauses, that 1. Freedom cannot be infringed unless it is for security purposes, 2. However, social and public interests are the equivalent of security issues, and 3. Therefore, if the State believes that one is engaging in conduct that jeopardizes the public interest, their freedom can be infringed. This would not be very concerning on its face. However, one also needs to consider some of the activities that the Chinese government considers to be against the public interest.

Chapter IX, on security matters, contains additional language that will worry those keeping an eye on human rights. For example, in Article 77, it states that Telecom businesses shall voluntarily keep a record of subscriber usage information. But it then mandates that this information shall be kept for a minimum of 60 days, seemingly eliminating any illusion of voluntariness. This is reminiscent of Google’s recent interactions with China. [iv] Additionally, Article 80 forbids users of communications to harm the dignity of the state, oppose fundamental principles of the Constitution, sabotage state religious policy, disturb social stability and insult people. This seems to give the State a very broad range of activities which it can control to the detriment of free speech and expression. This type of language certainly would not withstand judicial scrutiny in the US based on First Amendment freedoms.

One could argue that the US has laws in place that are equally as restrictive, such as the PATRIOT Act. However, there are still due process procedures in place, and First Amendment activities remain protected. This is not the case with China’s draft bill. China is growing tremendously and seems to be moving ever closer to a strong capitalist system. However, it is crucial that its laws keep pace in the area of human rights if it truly wants to be the global superpower it seems destined to be.

[i] http://china.usc.edu/App_Images//Unofficial_Translation_China_Draft_Telecommunications_Law.pdf
[ii] http://tradeinservices.mofcom.gov.cn/en/b/2000-09-25/18619.shtml
[iii] See Chapter II of the Draft
[iv] http://www.amnestyusa.org/china/google-in-china---background/page.do?id=1351061

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