Breaching the Great Firewall

Google's recent difficulties in China have given the U.S.-based firm less-than-optimum publicity. Google launched Google.cn (a self-censored version of its search engine) to prevent blockage by Chinese authorities while also fighting a U.S. Justice Department subpoena forcing them to divulge user information. Is this hypocrisy, merely looking after business, or both?

I suggest that Google are looking after their business. Google's U.S. userbase might react badly if they thought their identities and searching habits could be readily accessed by law enforcement agencies were they to use Google--instead of a competitor, So it would be bad for business to roll over on the subpoena.

In China, Google has been reportedly losing market share to Beijing-based web search business Baidu.com. Internet search users in China are predicted to increase from just over 100 million currently to 187 million in two years time. Google's site was slowed down by filters imposed by the Chinese authorities, so it is easy to see why searchers based in China might prefer to use a self-censored 'government-approved' offering.

Many people find the level of self-censorship required in order to undertake unimpeded business in China to be objectionable. However, as those responsible for the recent racially charged cartoons in Denmark have found, different standards of acceptable 'free speech' apply in different countries.

For example, if one of my articles were to irk the authorities of a country where my firm has an office, would they be required to risk jettisoning its business in that country by backing my right to 'free speech'? Would I need to resign rather than temper my rhetoric?

Leaving those questions unanswered, let me turn to some of the elements of the 'Great Firewall' and its regulatory equivalents. These realities would surely have appeared in the lengthy briefing papers that Google executives would have weighed in the balance before altering their China strategy.

Access to the Internet

The two major China regulations governing access to the Internet are the Provisional Regulations on International Linkups of Computer Information networks effective 20 May 1997 and the Implementing Measures of the Provisional Regulations on International Linkups for Computer Information Networks effective 6 March 1998. In accordance with these two regulations, all connections to overseas websites are required to go through international gateway channels controlled by the Ministry of Information Industry ("MII"), and only "backbone" operators are allowed to connect directly to the international Internet, and then, only by going through gateway channels. Accordingly, the ISPs and their customers have to connect through one of these three commercial networks.

Currently, with the one exception for Hong Kong and Macau referred to below, no foreign investment is allowed in the operation of any ISP in China and, if any such foreign investment is made without disclosure to the authorities, the ISP concerned is liable to be closed down. Under CEPA, investors from Hong Kong and Macau are allowed to set up joint ventures to provide Internet access services, provided the shares owned by Hong Kong and/or Macau investors do not exceed 50 percent.

Collection and use of data

The Measures for the Administration of Internet Information Services stipulate that Internet ISPs are required by law to collect information relating to the subscribers' logging on activities including log on time, account numbers and the callers' telephone numbers. Such information will be kept for a period of 60 days.

Service providers can collect user information, but their use of the data is restricted by law. Collection is only justifiable if it is for the sole purpose of making the information available to relevant State authorities when inquiries are sought, or when users infringe third-party copyright through the Internet.

Increasing technical awareness

Currently most of China's Internet users cannot circumvent the Great Firewall to access forbidden information. However, Internet users become increasingly more sophisticated. In a BBC article, Chinese bloggers reported that Google.cn gives searchers "more opportunities to triangulate"--i.e. to access forbidden content through an approved source. It is hoped that the pace of Internet users' sophistication will eventually outstrip the inventiveness (and resolve) of the Chinese authorities to devise preventative measures.

Other media regulations

Overall responsibility for the regulation and development of China's radio and television program production industry lies with the PRC's State Administration of Radio, Film and Television (SARFT). In light of the "strong ideological content" inherent in radio and television program production, SARFT's tendency is to retain firm control over foreign involvement in this market sector. In particular, SARFT will scrutinize the "political leanings and backgrounds of foreign partners in order to prevent the infiltration of undesirable thinking and culture into [China's] program production sectors."

In November 2004,SARFT published measures affecting those wishing to set up a Sino-foreign JV or production and distribution of radio and television programming (known as "Order 44"). One of the requirements of Order 44 is that the foreign investor must not have a "record of unfriendliness toward China during the three years preceding the application date".

In these days of convergence, it is not unlikely that Internet behemoths will turn to radio and television programming as a diversification to their business. Those wishing to do so in China needs to keep their collective nose clean. Anything else would be bad for business.

Peter Bullock is Head of Technology & Services Law, Asia Pacific and a Partner of Masons' International Law Firm. He can be contacted at peter.bullock@pinsentmasons.com

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