I. Summary

 

In recent years, China has made enormous strides in economic development and modernization, particularly in urban areas. It now attracts more foreign investment than any other country in the world as international companies are increasingly attracted to a huge potential market and a source of cheap labor.

While some suggest that economic development will inexorably lead to improvements in human rights and the rule of law, in the past few years the rights situation has deteriorated. The rule of law continues to seriously lag behind economic expansion. The judiciary, a pillar of a rights-respecting society, remains poorly trained and under the political control of the Chinese Communist Party. Access to justice remains severely limited for citizens with grievances, particularly the poor. The Party retains its monopoly on political power and shows no signs of allowing political pluralism or challenges to its authority. Torture continues to be rampant, China continues to lead the world in the number of judicially authorized executions, and land grabs by the powerful from the poor have become a national problem. The list of critical human rights problems can go on and on. As a result, there is enormous social unrest, as evidenced by tens of thousands of street protests annually.

Since President Hu Jintao came to power in 2003, the trend towards greater freedom of expression––a core right upon which the attainment of many other rights depends––has been reversed. Many critical (and popular) media outlets that have exposed corruption or criticized government policies have been closed. Large numbers of journalists have been jailed.

One of the most distressing trends has been a steady crackdown on the Internet. While in the past decade the Internet has ushered in an era of unprecedented access to information and open discussion, debate, and dissent, since President Hu took office the authorities have taken a series of harsh steps to control and suppress political and religious speech on the Internet, including the jailing of Internet critics and bloggers for peaceful political expression.

In fact, China’s system of Internet censorship and surveillance is the most advanced in the world. While tens of thousands of people are employed by the Chinese government and security organs to implement a system of political censorship, this system is also aided by extensive corporate and private sector cooperation—including by some of the world’s major international technology and Internet companies. In China, the active role of censor has been extended from government offices into private companies. Some companies not only respond to instructions and pressures from Chinese authorities to censor their materials, they actively engage in self-censorship by using their technology to predict and then censor the material they believe the Chinese government wants them to censor.

On February 15, 2006, four U.S.-based companies, Yahoo!, Microsoft, Google, and Cisco, were brought before a U.S. congressional hearing to explain their operations in China. The following day, Representative Chris Smith introduced the Global Online Freedom Act of 2006, which if passed would, among other things, make it illegal for any United States business to locate “user-identifiable” data in China and other “internet restricting countries,” and would require companies to be transparent about what political and religious material governments are requiring them to censor. In July the European Parliament passed a resolution welcoming the Global Online Freedom Act and urging the European Union Council of Ministers to “agree a joint statement confirming their commitment to the protection of internet users’ rights and the promotion of free expression on the internet world-wide.”

Academics and nongovernmental organizations (NGOs) are also working with companies to draft a voluntary code of conduct for Internet and telecommunications companies that would commit companies to business practices consistent with upholding and protecting the right to freedom of political and religious expression consistent with international human rights law and norms.

In this report, we have documented the different ways in which companies such as Yahoo!, Microsoft, Google, and Skype are assisting and reinforcing the Chinese government’s system of arbitrary, opaque and unaccountable political censorship.¹ This report documents the way in which these companies actively, openly, and deliberately (by their own admission) collaborate with the Chinese government’s system of Internet censorship:

Yahoo!: Yahoo! has handed over user information on four Chinese government critics to the Chinese authorities, resulting in their trial and conviction. Yahoo!’s Chinese search engine is heavily censored. Based on examination of Yahoo!’s services and of feedback gathered from Chinese Internet users, Human Rights Watch has found that Yahoo! censors its Chinese-language search engine to a very similar degree as domestic Chinese Internet companies (such as China’s largest domestic search engine, Baidu), and much more heavily than MSN and Google. Perhaps responding to criticism about a lack of transparency, in late July 2006 Yahoo! China added a notice at the bottom of its search engine informing users that some results may not appear “in accordance with relevant laws and regulations”. (See Appendix VIII for letter sent by Human Rights Watch to Yahoo! and Yahoo!’s response regarding company practices in China.)

Microsoft: In June 2005—a month after MSN China rolled out its Chinese portal—Microsoft came under criticism from the press and bloggers around the world for censoring words such as “democracy” and “freedom” in the titles of its Chinese blogs, at the request of the Chinese government. Microsoft has made efforts in recent months to revise its practices and minimize censorship of Chinese bloggers, although the extent to which censorship has been lessened across the board remains unclear. MSN has a Chinese search engine, currently in “beta” test mode, which appears to de-list webpages and censor some Chinese keywords. MSN Chinese “beta” search in some cases informs users that censorship occurred, but not in others. MSN’s Chinese search engine, while still in development, does provide the user with more information on politically sensitive subjects than either Yahoo! or Baidu. (See Appendix IX for letter sent by Human Rights Watch to Microsoft and Microsoft’s response regarding company practices in China.)

Google: In January 2006 Google rolled out its censored search engine, Google.cn. Google.cn does provide notice to users when search results have been censored but provides no further details. The company announced that it would not provide email or blog-hosting services in China, at least for now, in order to avoid being pressured to cooperate with Chinese police in handing over user data as in the case of Yahoo!, and to avoid having to directly censor user-created content as in the case of MSN Spaces. Google justified its censored search engine by arguing that users could rely on Google.com for uncensored searches; however, Chinese Internet users have reported widespread blockage of Google.com by Chinese ISPs. Human Rights Watch testing shows that the censored Google.cn, while denying access to the full range of information available on the World Wide Web, still enables the Chinese user to access substantially more information on sensitive political and religious subjects than its Chinese competitors. (See Appendix X for letter sent by Human Rights Watch to Google regarding company practices in China.)

Skype: Skype, which provides a way for Internet users around the world to communicate directly by voice, video and text chat, now has a Chinese-language version developed and marketed in China by the Chinese company TOM Online. Skype executives have publicly acknowledged that the TOM-Skype software censors sensitive words in text chats, and have justified this as in keeping with local “best practices” and Chinese law. However Skype does not inform Chinese users of the specific details of its censorship policies, and does not inform them that their software contains censorship capabilities. (See Appendix XI for letter sent by Human Rights Watch to Skype and Skype’s response regarding company practices in China.)

Yahoo!, Microsoft and Google have not publicized the list of sites or keywords being censored, and have not clarified which Chinese laws are being violated by the terms and web addresses censored by their Chinese search engines or services (and also blog-hosting services in the case of Microsoft). Thus it is impossible to evaluate the veracity of the claim each company makes that it is simply following Chinese law. Skype has not clarified what laws TOM-Skype would be violating by not censoring users’ conversations.

The above companies are complicit in the Chinese government’s censorship of political and religious information and/or the monitoring of peaceful speech in various ways—and, it is important to note, to widely varying degrees. They have all accepted at least some Chinese government demands without mounting any meaningful challenge to them. These are by no means the only multinational companies that currently facilitate Chinese government censorship and surveillance. But they are the most prominent examples, whose contribution to China’s censorship regime to date is most well documented and publicly visible.

In response to criticism, these companies all insist that despite the constraints under which they operate they are still helping to increase the Chinese people’s access to the Internet, access to more information, and greater means for self-expression. Companies certainly can make a positive contribution to freedom of expression in China, and that is something Human Rights Watch supports and encourages. But we believe that companies are only doing so if they are improving or maintaining high ethical standards that, at the very least, are consistent with international law and norms. The burden of proof as to whether they are making a positive impact in comparison to their domestic competitors should be on the companies themselves, rather than leaving the public to guess or discover the companies’ ethical standards on their own––in some cases by going to jail.

These companies also argue that they have no choice but to comply with Chinese law and regulations in order to access the Chinese market. Human Rights Watch does not believe that the choice for companies is to either continue current practices or to leave China. Rather, we believe companies can and should make ethical choices about what specific products and services they will provide to the Chinese people––and the manner in which they are provided––without playing a pro-active role in censorship or collaborating in repression. While some companies have said that they have adopted more rigorous processes and procedures to determine when to censor or abide by government demands, none of the companies discussed in this report have said they will refuse such demands, or appear to have actively resisted them. For this reason, we believe that legislation backed up by a substantive voluntary corporate code of conduct would help companies to uphold meaningful standards of conduct and make it more difficult for the Chinese government to retaliate against individual companies, since all of these companies would be bound by the same rules.

Any such regulation should be accompanied by meaningful efforts on the part of companies, business associations, government trade representatives, and international trade bodies to lobby against laws, regulations, and government pressures––in China and elsewhere––that force companies to act as censors. By forcing companies into this role, the Chinese government creates an opaque and uneven playing field in which companies compete not on business merits but on their level of cooperation with a censorship regime that trammels internationally protected rights.

We believe that legislation accompanied by constructive lobbying for regulatory change is in the long-term commercial interest of the companies. By offering diminished services, companies are not actually competing on the overall superiority of their products; instead they are adopting the lowest common denominator set by the Chinese government. Unless companies agree to draw the ethical line or have it drawn for them, it will be very difficult for them to escape the current “race to the bottom,” as companies cave in to Chinese government pressure to increase their censorship levels and compliance with government demands for user information, to match the level of whichever company is censoring and compromising user data the most.

Ultimately, none of the companies discussed in this report have a long-term technical advantage over their Chinese competitors. In the long run, user loyalty will depend on their level of trust. In researching Chinese user reaction to the different choices made by multinational Internet companies, we have found that trustworthiness and transparency are indeed important to Chinese users, as they are to users elsewhere. Furthermore, the way in which an Internet company treats its users in one country can impact that company’s global image. Users can reasonably be expected to ask: if a company contributes to the jailing of government critics in China, isn’t it also likely to do so elsewhere?

As the Chinese Internet and wireless communications sectors continue to grow, more and more international companies will continue to face pressure from the Chinese government to supply equipment used for censorship and surveillance, hand over user information, and actively censor user content. It is also important to note that many governments around the world are watching the way in which companies are adapting their business practices to Chinese government demands. If Google, Yahoo!, Microsoft and others actively collaborate with political censorship in China, it will be difficult for them to turn down similar requests made by other governments seeking to control their citizens. Human Rights Watch believes that Internet companies can and should draw a much clearer line between ethical and unethical business practices, and should revise their business practices in China and in all countries where unaccountable governments censor the Internet in an arbitrary, non-transparent, and unaccountable manner. If they cannot do so, concerned citizens around the world should use their power as consumers, investors, and voters to demand a commitment by Internet and technology companies to respect and uphold the fundamental, universal human rights of their customers and users.

[1] This report focuses exclusively on the Internet companies whose software, services, communications, and content hosting businesses have participated actively in censorship. This report does not address the hardware companies such as Cisco, Nortel, Juniper, and others whose routers, while critical in the building of China’s Internet infrastructure, and whose filtering technology, while essential for the protection of networks from viruses and worms, are also used by the Chinese government to carry out censorship. While Human Rights Watch is extremely concerned about the latter, we believe the hardware and Internet content businesses involve different issues––technically, legally, and in terms of corporate intent.

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.

[2] Eric Harwit and Duncan Clark, “Shaping the Internet in China: Evolution of Political Control Over Network Infrastructure and Content,” Asian Survey, 41:3, May-June 2001, pp. 337-408.

[3] OpenNet Initiative, “Internet Filtering in China 2004-2005: A Country Study,” April 14, 2005 [online], http://www.opennetinitiative.net/studies/china/ (retrieved July 11, 2006); China Internet Network Information Center, “17th Statistical Survey Report on The Internet Development in China,” January 2006 [online], http://www.cnnic.net.cn/download/2006/17threport-en.pdf (retrieved July 11, 2006).

[4] Steven Cherry, “The Net Effect,” IEEE Spectrum, June 2005 [online], http://www.spectrum.ieee.org/print/1219 (retrieved July 11, 2006).

[5] OpenNet Initiative, “Internet Filtering in China.”

[6] Ibid; See also Nart Villeneuve, “The Filtering Matrix: Integrated mechanisms of information control and the demarcation of borders in cyberspace,” First Monday, Vol. 11, Number 1, January 2006 [online], http://www.firstmonday.org/issues/issue11_1/villeneuve/index.html (retrieved July 11, 2006).

[7] Villeneuve, “The Filtering Matrix”; OpenNet Initiative, “Internet Filtering in Saudi Arabia in 2004,” [online], http://www.opennetinitiative.net/studies/saudi/ (retrieved July 11, 2006).

[8] Harwit and Clark, “Shaping the Internet in China,” Asian Survey.

[9] OpenNet Initiative, “Analysis of China’s Non-Commercial Web Site Registration Regulation,” February 22, 2006 [online], http://www.opennetinitiative.net/bulletins/011 (retrieved July 11, 2006).

[10] Internet Society of China, “Public Pledge of Self-Regulation and Professional Ethics for China Internet Industry,” July 19, 2002 [online], http://www.isc.org.cn/20020417/ca102762.htm (retrieved July 11, 2006).

[11] The Internet Society of china’s homepage is at http://www.isc.org.cn/English/ (retrieved July 11, 2006).

[12] Jim Hu, “Yahoo yields to Chinese web laws,” CNet News.com, August 13, 2002 [online], http://news.com.com/2100-1023-949643.html (retrieved July 11, 2006).

[13] Human Rights Watch interviews with Chinese and Western Internet company managers who requested anonymity.

[14] Rebecca MacKinnon, “Flatter World and Thicker Walls? Blogs, Censorship and Civic Discourse in China” in Daniel Drezner and Henry Farrell, eds., The Political Promise of Blogging (Ann Arbor: University of Michigan Press, publication pending), draft version under the title “Chinese Blogs: Censorship and Civic Discourse” at

http://rconversation.blogs.com/rconversation/files/mackinnon_chinese_blo... (retrieved July 14, 2006).

[15] Xiao Qiang, “The words you never see in Chinese cyberspace,” China Digital Times, August 30, 2004 [online], http://chinadigitaltimes.net/2004/08/the_words_you_n.php (retrieved July 11, 2006).

[16] “Keywords Used to Filter Web Content,” in series “The Great Firewall of China,” Washington Post, February 18, 2006 [online], http://www.washingtonpost.com/wp-dyn/content/article/2006/02/18/AR200602... (retrieved July 11, 2006).

[17] Ibid. See also Phillip Pan, “What do cat abuse, mascot and cashfiesta have in common?” Washington Post, February 19, 2006 [online],

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/18/AR200602... (retrieved July 11, 2006); Xiao Qiang, “The words you never see in Chinese cyberspace,” China Digital Times.

[18]Human Rights Watch interviews with Chinese and Western Internet company managers who requested anonymity.

[19] Xiao Qiang, “The words you never see in Chinese cyberspace,” China Digital Times.

[20] Human Rights Watch interviews with Chinese internet users who requested anonymity.

[21] A “chat client” is software, including Instant Messaging software that enables users of the same chat service to conduct 1-on-1 or multi-person online “chat sessions.”

[22] Tom Spring, “Outsmarting the Online Privacy Snoops,” PC World, February 28, 2006 [online], http://www.pcworld.com/news/article/0,aid,124891,00.asp (retrieved July 11, 2006).

[23] HRW interview with Roger Dingledine. For more about Tor, see: http://tor.eff.org (retrieved July 16, 2006).

[24] Guo Liang and Bu Wei, Survey report of Internet use and its influence: Beijing, Shanghai, Guangzhou, Chengdu and Changsha 2000 (Beijing: Chinese Academy of Social Sciences, 2001).

[25] Chinese Academy of Social Sciences, “Surveying Internet Usage and Impact in Five Chinese Cities,” November 2005, published on the Markle Foundation website, http://www.markle.org/downloadable_assets/china_final_11_2005.pdf (retrieved July 11, 2006). The survey was conducted via door-to-door household interviews in five Chinese cities: Beijing, Shanghai, Guangzhou, Chengdu, and Changsha. The final sample size was 2,376, including 1,169 Internet users and 1,207 Internet non-users.

[26] Comment posted by Rebecca MacKinnon on July 1, 2005, to the blog post “Questions for Chinese Bloggers” on GlobalVoicesOnline.org, http://www.globalvoicesonline.org/2005/06/30/question-for-chinese-blogge... (retrieved July 11, 2006).

[27] Chinese Academy of Social Sciences, “Surveying Internet Usage and Impact in Five Chinese Cities.”

[28] OpenNet Initiative, “China Tightens Controls on Internet News Content Through Additional Regulations,” Bulletin 012, July 6, 2006 [online], http://www.opennet.net/bulletins/012/ (retrieved July 13, 2006).

[29] Human Rights Watch, “Freedom of Expression and the Internet in China,” A Human Rights Watch Backgrounder, undated, [online], http://www.hrw.org/backgrounder/asia/china-bck-0701.htm (retrieved July 13, 2006).

[30] See, for example, Provisional Regulations for the Administration of Online Culture, May 10, 2003, Article 3(2), which regulates the distribution of cultural products, not just over the Internet, but also to such “user terminals” as “fixed-line telephones, mobile telephones, radios, television sets, and games machines for browsing, reading, appreciation, use or downloading by internet users…”

[31] Benjamin Joffe-Walt, “China’s leaders launch smokeless war against internet and media dissent,” The Guardian, September 26, 2005 [online], http://www.guardian.co.uk/international/story/0,3604,1578133,00.html (retrieved July 13. 2006).

[32] OpenNet Initiative, “China Tightens Controls on Internet News Content.”

[33] Provisions on News Information Services, Article 3, Clause 1. Translation courtesy of CECC.

[34] Ibid., Article 20.

[35] Ibid., Article 3, Clause 2.

[36] For more on restrictions on reporting in China, see He Qinglian, “Media Control in China,” China Rights Forum, No. 4, 2004, reproduced by Human Rights in China at http://www.hrichina.org/public/highlight/PDFs/CRF-4.2004-WT-Media.pdf.Complete report (retrieved July 13, 2006). For a more recent analysis of media censorship focusing on the Central Propaganda Bureau, see Jiao Guobiao, “A Declaration of the Campaign against the Central Propaganda Department.” Roland Soong trans., EastSouthWestNorth, May 5, 2004 [online], http://www.zonaeuropa.com/20040505_2.htm (retrieved July 16, 2006 (original Chinese web posting no longer accessible, was at: http://www.guancha.org/Big5/da.asp?ID=29953&ad=4/9/2004).

[37] Provisions on News Information Services, Article 5(1).

[38] Ibid., Article 5(2) and 5(3).

[39] Ibid., Article 8(2).

[40] Ibid. In keeping with the government’s practice of limiting foreign investment in the news media, certain investment vehicles involving foreign companies are banned from participating in the creation of Internet News Information Service Work Units. See Article 9, Provisions.

[41] Ibid., Article 23.

[42] Ibid., Article 24.

[43] Ibid., Articles 26 and 28.

[44] ICCPR, Article 19. China has signed the ICCPR but has yet to ratify it.

[45] Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the U.N. Commission on Human Rights, January 29, 1999, E/CN.4/1999/64.

[46] Rules on Internet Security Protection Technology Measures, Article 13. Translation courtesy of CECC.

[47] ICCPR, Article 12.

[48] See Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 1993, pp. 291-294.

[49] See Constitution of the People’s Republic of China, Articles 35, 40, and 47. Also relevant is Article 37, which protects against unlawful searches, and Article 33, which states that the state “respects and preserves human rights.”

[50] Randall Peerenboom, China’s Long March Toward Rule of Law (Cambridge: Cambridge University Press, 2002), p. 311.

[51] For a detailed discussion of judicial independence in China, see Ibid., pp. 280-282, 298-316.

[52] See generally Human Rights in China, “Empty Promises: Human Rights Protections and China’s Criminal Procedure Law in Practice,” March 2001, http://hrichina.org/fs/downloadables/pdf/downloadable-resources/Empty_Pr... (accessed July 13, 2006).

III. Comparative Analysis of Search Engine Censorship

Yahoo!, Google, and Microsoft all argue that Chinese Internet users benefit from their presence, despite these companies’ compromise with Chinese government censorship demands. However, this argument would require, among other things, that the services provided by these companies to Chinese users enable greater access to information than they would be able to receive from their domestic Chinese competitors. A comparison by Human Rights Watch of the three companies’ search engines with Baidu, China’s most popular domestic search engine, indicates that while Google.cn and Microsoft’s new “beta” Chinese search engine provide significantly better access to information than Baidu, our experience with Yahoo!’s Chinese search results indicates no better access to information than Baidu.⁵³ We conducted tests on various dates between May and August 2006; results varied, at times even on the same day.

1. Censorship through website de-listing

To illustrate the situation, Human Rights Watch color-coded and tabulated the search results for twenty-five URLs (web addresses) across Google.cn, Yahoo! China at cn.yahoo.com, MSN Chinese “beta” (test) search at search.msn.com.cn, and Baidu, China’s leading domestic search engine (see the chart in Appendix XII). Selection of twenty-five URLs for the URL search comparison chart in Appendix XII focused primarily on politically sensitive websites (such as savetibet.org, Taiwan government, or Falungong), activist sites (Human Rights in China), international news sites (BBC and Time.com), or sites that enable people to share user-generated content or citizens’ media (GlobalVoicesOnline, Technorati, etc.). Websites for a few organizations that the Chinese government views favorably or neutrally were also included (Harvard.edu, Unicef.org, Greenpeace.org) to demonstrate that uncensored results are possible across all services. Here is how the four services break down, ranked according to the number of successful site searches:

• Google.cn: Seventeen of the twenty-five websites searched yielded the website entered into the search box. Eight of the tested sites were de-listed (showing that the site not only does not appear in a direct search but also will not be drawn upon for any search results in that service). In all eight de-listed cases, a user notice appears in Chinese that says: “According to local laws, regulations, and policies, a portion of the search results do not appear.” Such sites included Radio Free Asia at rfa.org, the International Campaign for Tibet at savetibet.org, BBC News at news.bbc.co.uk, and Human Rights Watch at hrw.org. (See Section IV, Fig. 16.)

• MSN’s Chinese search engine (beta.search.msn.com.cn): Fifteen of the twenty-five websites searched yielded the actual website entered into the search box. Five were de-listed with MSN’s standard notification to the user: “Some search results have been removed. [click here to] Find out why.” Another five search results did not display the top-level domain originally entered into the search, but did display inner pages from the same website, and in addition provided the same user notification message as in the fully de-listed results. De-listed webpages included such sites as Falungong’s Epochtimes.org and Time.com (the website of TIME magazine, published in the U.S.). (See Section IV, Fig. 11.)

• Yahoo! China (cn.yahoo.com): Eight of the twenty-five websites tested yielded the actual website entered into the search box. Two yielded sub-domains but not the main domain. One was de-listed (producing no results for the website) with the message “extra results have been filtered.” Fourteen were de-listed with a “no results found.” (Interestingly, the same search using those fourteen keywords conducted on Yahoo! China from a non-Chinese ISP triggers a browser error. Technically, the reason why this happens is unclear.) On August 8, 2006, a spokesperson for Alibaba confirmed to Human Rights Watch that, since July 27, 2006, at the very bottom of every search results page––regardless of the search subject––Yahoo! China now includes a small line of Chinese text saying: “In accordance with relevant laws and regulations, a portion of search results may not appear.” (Also see Section IV, Fig. 5 for an example.)

• Baidu: Searches conducted on August 9, 2006 inside China produced the same result for every URL or web address search. The browser displays a message saying “you can directly visit [url].” For example, a search for voanews.com will result in the message: “you can directly visit voanews.com.” When the user inside China clicks on the link, the user will find that the page is blocked. However it is interesting that in this case, Baidu is letting the Chinese ISP do the blocking, and is not censoring these web pages directly––as the foreign search engines are doing. (Attempts to reproduce this result from outside China consistently trigger browser error. Again, the reason for this is unknown.)

As one can see from examining the URL search comparison chart in Appendix XII, Google.cn and MSN Chinese search yielded substantially more successful results than their Chinese competitor Baidu or Yahoo! China, which appear to provide very similar levels of access. Furthermore, while both Google.cn and MSN Chinese do indeed censor websites, they are transparent with the user in each case that censorship has occurred, even though they fail to inform the user as to why a given URL has been de-listed and under whose authority.

2. Keyword censorship

Human Rights Watch chose twenty-five keywords—twenty politically sensitive terms or names, plus the names of two Chinese celebrities, one company name and two city names—to demonstrate that completely uncensorsed results are possible across all services. These keywords were then plugged into Google.cn, Google.com, Yahoo! China (cn.yahoo.com), Yahoo.com, MSN Chinese “beta” search (search.msn.com.cn), MSN Search (U.S.), and Baidu. The results on Google.com, Yahoo.com, and MSN Search (U.S.) are uncensored for Chinese political terms (though they are censored for copyright violations and child pornography as discussed in Section IV). The four China-based search engines featured two different kinds of censored results: 1) User notification of censorship (user is notified censorship has taken place); 2) Non-transparent censorship (the user is not notified that censorship has taken place).

Google, MSN, and Yahoo! China (as of July 27, 2006) all notify users in different ways that censorship is taking place, although no information is specified as to how many results were blocked, what exactly was blocked, or how they were blocked. The only way to infer answers is to make comparisons with these search engines’ U.S.-based counterparts. While Google and MSN give notifications of censorship on results that do indeed include censored results (although in a few cases MSN appears to omit this notification), Yahoo! China’s notification is a blanket notice on all pages that censorship is possible in any set of results. Baidu, their Chinese competitor, gave no indication of whether any search results were censored, making it impossible to conclude with confidence that even the most innocuous search hasn’t been censored.  A more detailed analysis is as follows:

• Google.cn: Of the twenty-five keywords searched, only three (Microsoft, Dalian, and Paris) did not include the standard censorship notification message at the bottom of the page: "According to local laws, regulations, and policies, a portion of the search results do not appear." (See Section IV, Fig. 15.) For some of the long-standing politically sensitive terms such as “Tiananmen Massacre,” “Li Hongzhi” (Falungong leader) and “Tibet independence,” the majority of results appearing on the first two pages tend to be from PRC sources such as the People’s Daily website, Xinhuanet, Sina.com, and other sites containing articles outlining the Chinese government’s point of view on these issues or people. However, some sites containing perspectives not flattering to the Chinese government or which express support for Li, Tibet independence, or which condemn the Tiananmen massacre do also appear—particularly on blogs or other sites. In other cases, results turned up a great deal of content unfavorable to the Chinese government’s position on the first two pages, despite the fact that the results were still censored, as content appearing at the top of a Google.com search from various well-known human rights and dissident websites does not appear in a Google.cn search.  In the case of “Wu Hao,” the name of a jailed (and recently released) filmmaker and blogger, the first result is the blog written by his sister about his case. Thus, despite results being censored, one can still find a great deal of information via Google.cn search which brings direct exposure to information and ideas that present a different picture of reality than that painted by official Chinese sources.

• MSN Chinese search (search.msn.com.cn):  Thirteen of the twenty-five searches yielded censored search results in which the user is notified that censorship has taken place (see Section IV, Fig. 10). Eight results appeared to be uncensored. In one case (for “Tiananmen massacre,”) there were no results and no message notifying the user of censorship, just a message saying no results could be found. (See Section IV, Fig. 9.) In three other instances (also highlighted in blue on the keyword search comparison chart in Appendix XIII) it was unclear whether censorship had occurred because there was no notification, but the results appeared in their substance to be more consistent with censored or filtered results in other services. (Note that in the tester’s experience some MSN Chinese search results appear to change dramatically depending on what day and time the search is conducted.)

• Yahoo! China (cn.yahoo.com): All of the twenty-five searches yielded some form of multiple results, and in some cases it is clear by comparing with Yahoo.com that those results are heavily censored.  Some searches, particularly “Tiananmen Massacre,” and the Chinese term for “Reverse the June 4^th verdict” yielded dramatically fewer results than the unfiltered Yahoo.com. A search on “Dongzhou village,” where protesting peasants were shot in the summer of 2005, yields only content pertaining to schools, factories and other locations with “dongzhou” in the name, with no content related to the protests and crackdown (see Section IV, Fig. 3). A search on “Wu Hao” (the jailed and recently released filmmaker and blogger) yielded results in the first two pages only about other people with the same name. All results, even on the most innocuous search terms, now carry the notification that censorship may have taken place. (See Section IV, Fig. 5.)

• Baidu: Of the twenty five search terms tested, Baidu returned zero results for one of those terms, although many others were heavily censored in comparison to other search engine results, without a notice that censorship had taken place.

From the analysis in the keyword search comparison chart in Appendix XIII, one might conclude that, despite their participation in censorship and compromises with the Chinese government, Chinese Internet users have access to significantly more information with Google.cn and the censored MSN operating in China. However, it appears that Yahoo! is censored at approximately the same level as Baidu, the domestic search engine leader.  

[53] The The tests below were conducted from the United States on a U.S. Internet Service Provider (ISP), as well as from China on a Chinese ISP, in order to isolate with a high degree of certainty that the censorship discovered as a result of these tests was carried out by the companies themselves, not by the Chinese government or Internet Service Providers at the router level.

IV. How Multinational Internet Companies assist Government Censorship in China

1. Yahoo! Inc.

“Our mission is to be the most essential global Internet service for consumers and businesses. How we pursue that mission is influenced by a set of core values - the standards that guide interactions with fellow Yahoos, the principles that direct how we service our customers, the ideals that drive what we do and how we do it… We are committed to winning with integrity. We know leadership is hard won and should never be taken for granted… We respect our customers above all else and never forget that they come to us by choice. We share a personal responsibility to maintain our customers' loyalty and trust.”

—Yahoo! mission statement, reflecting on “Our Core Values”⁵⁴

Yahoo! was the first major U.S. Internet content company to enter the China market, rolling out a Chinese-language search engine and establishing a Beijing office in 1999.⁵⁵

“Self-discipline” signatory: In August 2002 Yahoo! became a signatory to the “Public Pledge on Self-discipline for the Chinese Internet Industry,” the “voluntary pledge” initiated by the Internet Society of China (see Section II, Part 2, above).⁵⁶ Protesting the move at the time, Human Rights Watch Executive Director Kenneth Roth argued that by collaborating with state censorship in this fashion, Yahoo! would “switch from being an information gateway to an information gatekeeper.”⁵⁷ Responding to the outcry from human rights groups, who pointed out that Yahoo! was not required by Chinese law to sign the pledge, Yahoo! associate senior counsel Greg Wrenn countered that “the restrictions on content contained in the pledge impose no greater obligation than already exists in laws in China.”⁵⁸ In an August 1, 2006 letter to Human Rights Watch, Yahoo! stated that, “The pledge involved all major Internet companies in China and was a reiteration of what was already the case - all Intenet companies in China are subject to Chinese law, including with respect to filtering and information disclosure” (see Appendix xx for full text of letter). This is technically accurate as Microsoft and Google were not operating in China at the time. However, unlike Yahoo!, neither company has signed the pledge since beginning operations in China.

Search engine filtering: Like all other Chinese search engine services, Yahoo! China (http://cn.yahoo.com) maintains a list of thousands of words, phrases and web addresses to be filtered out of search results. (For information on how companies in general generate such lists, see Section II, Part 2.)

A concrete example of Yahoo!’s search engine filtering can be seen with the search term “Dongzhou” (东洲), the name of a village where police opened fire on demonstrators in the summer of 2005. An August 9, 2006 search on the unfiltered Yahoo.com returned 371,000 results, with most of the results on the first three pages being articles about the protests and shootings. A search on the same day of the same term in cn.yahoo.com (Yahoo! China) returned 106,000results, with none of the results at least on the first three pages containing any links related to the protest and crackdown. Instead, the first few pages of results link to websites for businesses, schools, and other institutions with “dongzhou” in the name (see Figs. 2 & 3). Results on search engines normally order themselves based on the popularity of the webpage as calculated by mathematical algorithms, not by subjective decisions about the value and nature of the site’s content.

One way in which the number of results is substantially reduced is by the de-listing of entire websites from the search engine, so that the de-listed sites are skipped over when the search engine trawls the web for results. Neither Yahoo! nor any other company has released a list of websites that have been de-listed for their political and religious content. In Yahoo!’s case, such sites evidently include Radio Free Asia, Human Rights Watch, and theNew York Times (see Appendix XII and Figs. 4 and 5). In other instances, searches for some politically sensitive keywords cause Yahoo.com.cn to deliver no page at all in response to the user’s request; all the user sees as a result is an error message appearing in her browser. In some instances such searches on Yahoo.com.cn result in server timeout, which causes the entire search engine to be unusable for any search for several minutes after the sensitive search is conducted (see Fig. 5).

Yahoo! user data employed by Chinese authorities to help convict critics: Yahoo! China provides a Chinese-language email service at Yahoo.com.cn. Independent tests have indicated, and Yahoo! executives have confirmed, that data for the Yahoo.com.cn email accounts is housed on servers inside the PRC.⁵⁹ As of this writing, court documents obtained by human rights groups have shown that user data handed over by Yahoo! to Chinese law enforcement officials has assisted in the arrest and conviction of at least four people who used email accounts from the Yahoo.com.cn service. The four cases are as follows:

• Shi Tao: The Chinese journalist was sentenced in April 2005 to ten years in prison for “divulging state secrets abroad.” According to court documents translated by the Dui Hua Foundation and released by Reporters Sans Frontières. Yahoo! complied with requests from the Chinese authorities for information regarding an IP address connected to a cn.mail.yahoo.com email account. The information provided by Yahoo! Holdings (Hong Kong) Holdings linked Shi Tao to materials posted on a U.S.-based dissident website. ⁶⁰ (See Appendix III for full case details.)

• Li Zhi: The Internet writer was sentenced in December 2003 to eight years in prison for “inciting subversion of the state authority.” According to the court verdict originally posted on the Internet by the Chinese law firm that defended him, user account information provided by Yahoo! was used to build the prosecutors’ case. ⁶¹ (See Appendix IV for full case details.)

• Jiang Lijun: The Internet writer and pro-democracy activist was sentenced in November 2003 to four years in prison for “subversion.” According to the court verdict obtained and translated by the Dui Hua Foundation, Yahoo! helped confirm that an anonymous email account used to transmit politically sensitive emails was used by Jiang.⁶² (See Appendix V for full case details.)

• Wang Xiaoning: The Internet writer and dissident was sentenced in September 2003 to ten years in prison for “incitement to subvert state power,” on the basis of essays he distributed on the Internet via email and Yahoo! Groups. According to the court judgment obtained by Human Rights in China, Yahoo! provided information to investigators pertaining to the email address and Yahoo! group used by Wang.⁶³ (See Appendix VI for full case details.)

Figure 2: Yahoo.com unfiltered search on “Dongzhou” (results on first page are all discussing the incident in which military policy fired on protesting villagers)

In response to the public outcry after the case of Shi Tao came to light in early September 2005, Yahoo! spokesperson Mary Osako said: “Just like any other global company, Yahoo! must ensure that its local country sites must operate within the laws, regulations and customs of the country in which they are based.”⁶⁴

Chinese court documents cite Yahoo! Holdings (Hong Kong) as the entity responsible for handing over user data in these cases. However, Yahoo! executives insist that the user data for email accounts under the Yahoo.com.cn service was housed on servers in China, not Hong Kong. According to Michael Callahan, Yahoo!’s Senior Vice President and General Counsel: “Yahoo! China and Yahoo! Hong Kong have always operated independently of one another. There was not then, nor is there today, any exchange of user information between Yahoo! Hong Kong and Yahoo! China.”⁶⁵

Figure 3: Yahoo.com.cn (Yahoo! China) filtered search on “Dongzhou” (results are non-political and unrelated to the shooting incident or protests)

With data housed on servers in the PRC and managed by Yahoo! China employees, who are largely Chinese nationals, Yahoo! claims that it had no choice but to hand over the information: “When we receive a demand from law enforcement authorized under the law of the country in which we operate, we must comply,” said Yahoo!’s Michael Callahan.⁶⁶ Callahan and other Yahoo! executives have also argued that, as with criminal cases in any country, Yahoo! employees generally have no information about the nature of the case and would not be in a position to know whether the user data requested relates to a political or ordinary criminal case.⁶⁷ “Law enforcement agencies in China, the United States, and elsewhere typically do not explain to information technology companies or other businesses why they demand specific information regarding certain individuals,” Callahan said. “In many cases, Yahoo! does not know the real identity of

Figure 4: Yahoo! China search showing nytimes.com de-list, error message: “We have already helped you filter out excess web pages!”

individuals for whom governments request information, as very often our users subscribe to our services without using their real names.” These points were reiterated in the August 1, 2006 letter from Yahoo! to Human Rights Watch:

When we had operational control of Yahoo! China, we took steps to make clear our Beijing operation would comply with disclosure demands only if they came through authorized law enforcement officers, in writing, on official law enforcement letterhead, with the official agency seal, and established the legal validity of the demand. Yahoo! China only provided information as legally required and construed demands as narrowly as possible. Information demands that did not comply with this process were refused. To our knowledge, there is no process for appealing a proper demand in China. Throughout Yahoo!'s operations globally, we employ rigorous procedural protections under applicable laws in response to govemment requests for information.

For this reason, Human Rights Watch believes that it is likely impossible for an Internet company to avoid intentionally, negligently, or unknowingly participating in political

Figure 5: Yahoo! China search showing hrw.org de-list: “no web page matching site: hrw.org could be found,” and the disclaimer message: “according to relevant laws and regulations, a portion of results may not appear.”

repression when its user data is housed on computer servers physically located within the legal jurisdiction of the People’s Republic of China. Thus the first step towards human rights-compliant corporate conduct in China is to store user data outside of the PRC (or for that matter, outside any country with a clear and well-documented track record of prosecuting internationally protected speech as a criminal act).

Alibaba partnership: Unlike Microsoft and Google (cases detailed below), Yahoo! has chosen to relinquish control over what is done in China under its brand name to a Chinese partner. In August 2005, Yahoo! announced it would purchase a 40 percent stake in the Chinese e-commerce firm Alibaba.com. It was also announced that Yahoo! would merge its China-based subsidiaries into Alibaba, including the Yahoo! Chinese search engine (at: cn.yahoo.com) and Chinese email service (cn.mail.yahoo.com). On February 15, 2006, when Yahoo! (along with three other U.S.-based companies, Cisco, Microsoft, and Google), was brought before a U.S. House of Representatives committee hearing to explain its collaboration with Chinese government censorship requirements, Michael Callahan explained: “It is very important to note that Alibaba.com is the owner of the Yahoo! China businesses, and that as a strategic partner and investor, Yahoo!, which holds one of the four Alibaba.com board seats, does not have day-to-day operational control over the Yahoo! China division of Alibaba.com.”⁶⁸ According to spokeswoman Mary Osako, Alibaba has had full control over Yahoo! China’s operational and compliance policies since October 2005.⁶⁹

Statements by Alibaba’s CEO Jack Ma make it clear that his company has no intention of changing Yahoo! China’s approach to handing over user information. In November 2005, when the Financial Times asked him what he would have done in the Shi Tao case, he replied: “I would do the same thing… I tell my customers and my colleagues, that’s the right way to do business.”⁷⁰ In a May 7, 2006 interview with the San Francisco Chronicle he elaborated further:

We set up a process today—I think a few months ago­—if anyone comes looking for information from my company, not only Yahoo but also Taobao (Alibaba’s consumer auction site) and Alibaba (the auction site for businesses). If it’s national security or a terrorist, if it’s criminals, or people cheating on the Internet, that’s when we cooperate. The authorities must have a license or a document. Otherwise, the answer is no.⁷¹

Regarding censorship of Yahoo!’s search engine, Ma recently told the New York Times: “Anything that is illegal in China — it’s not going to be on our search engine. Something that is really no good, like Falun Gong?” He shook his head in disgust. “No! We are a business! Shareholders want to make money. Shareholders want us to make the customer happy. Meanwhile, we do not have any responsibilities saying we should do this or that political thing. Forget about it!”⁷²

In the August 1, 2006 letter to Human Rights Watch, Yahoo!’s Michael Samway insisted that Yahoo! is not relinquishing all responsibility for Alibaba’s actions:

As a large equity investor with one of four Alibaba.com board seats, we have made clear to Alibaba.com's senior management our desire that Alibaba.com continue to apply the same rigorous standards in response to govemment demands for information about its users. We will continue to use our influence in these areas given our global beliefs about the benefits of the Internet and our understanding of requirements under local laws.

Response to criticism: Yahoo! executives respond consistently that search engine filtering is done in compliance with Chinese law, and that there is no alternative other than not doing business in China at all.⁷³ In May 2006 Yahoo! CEO Terry Semel responded that providing the censored and politically compromised services still benefits the Chinese people more than if Yahoo! were absent from China altogether.⁷⁴

On the eve of the congressional hearings, Yahoo! issued a press release titled “Our Beliefs as a Global Internet Company,” in which the company made the following commitments:

As part of our ongoing commitment to preserving the open availability of the Internet around the world, we are undertaking the following:

 

Collective Action: We will work with industry, government, academia and NGOs to explore policies to guide industry practices in countries where content is treated more restrictively than in the United States and to promote the principles of freedom of speech and expression.

 

 

Compliance Practices: We will continue to employ rigorous procedural protections under applicable laws in response to government requests for information, maintaining our commitment to user privacy and compliance with the law.

 

 

Information Restrictions: Where a government requests we restrict search results, we will do so if required by applicable law and only in a way that impacts the results as narrowly as possible. If we are required to restrict search results, we will strive to achieve maximum transparency to the user.

 

 

Government Engagement: We will actively engage in ongoing policy dialogue with governments with respect to the nature of the Internet and the free flow of information.⁷⁵

 

Few concrete actions: Aside from repeated statements of regret about what happened to the four Chinese government critics and pledges of continued commitment to the above principles, Yahoo! executives have refused to do anything further to reverse the wrongs perpetrated on at least four Chinese citizens with Yahoo!’s help. At Yahoo!’s 2006 annual shareholder meeting, Anthony Cruz, a shareholder representing Amnesty International, challenged Yahoo! executives, including Chief Executive Terry Semel and co-founder Jerry Yang, to publicly ask the Chinese government to release imprisoned Internet dissidents. Yahoo!’s top management declined Cruz’s request. Yang said “We are going to do it in the way we think is most appropriate,” and “we don’t have a lot of choice once we are in the country and complying with the local laws.”⁷⁶ Semel deflected responsibility back to the U.S. government: “I don’t think any one group and I don’t think any one company can change the course of governments….The way I believe major change comes about is when those groups work together and also put certain pressure on our own government….Ultimately, governments do bring about change in other governments, particularly if they are trading partners.”⁷⁷

As Alibaba’s Jack Ma indicates above, in early 2006 Yahoo! asked Alibaba to adhere to a strict policy about the conditions under which it is acceptable to release user data to Chinese authorities. It appears, based on conversations with industry executives, that this was in response to public criticism. In his recent San Francisco Chronicle interview, Ma rejected the idea of moving user data overseas, saying “That doesn’t make any sense. Even outside China, if it is a terrorist, or if it is national security, you still have to deal with it. Even if your main operation is outside China, you still have to comply.”⁷⁸ Absent from this reasoning is the recognition that different governments define national security very differently, and that courts in many other countries are independent, while Chinese courts have a well documented track record of acting as an arm of the government and Chinese Communist Party (CCP) and treating peaceful challenges to the ruling party’s legitimacy as a threat to national security.⁷⁹

In keeping with recent statements by Yahoo! executives, in May 2006 Yahoo! CEO Terry Semel responded that providing the censored and politically compromised services still benefits the Chinese people more than if Yahoo! were absent from China altogether.⁸⁰ On July 27, 2006, Yahoo! China began running a disclaimer notice at the bottom of all search pages, which says in Chinese “According to relevant laws and regulations, some search results may not appear.” While this represents a step in the right direction, Human Rights Watch does not believe that this notice in small print at the very bottom of all search results pages (regardless of the search term) represents “maximum transparency to the user” as stated by Yahoo! to be the company’s goal in congressional testimony. This is especially the case when it is clear from test results that Yahoo! censors its results more heavily than its competitors but gives the user no explanation as to why this is necessary. “Maximum transparency to the user” would entail informing users of how many results have been censored and why, and giving clear information about how the search engine’s censorship decisions get made, so that the user knows what he or she is missing and knows who is responsible for the content’s absence. Without such steps, the search engine continues to play the role of non-transparent censor.

Chinese critics: After the case of Shi Tao was exposed by Reporters Sans Frontières and the Dui Hua Foundation, the Beijing-based dissident intellectual Liu Xiaobo wrote a long letter to Jerry Yang, in which he condemned such justifications as specious:

In my view, what Yahoo! has done is exchange power for money, i.e. to win business profit by engaging in political cooperation with China’s police. Regardless of the reason for this action, and regardless of what kinds of institutions are involved, once Yahoo! complies with the CCP to deprive human rights, what it does is no longer of a business nature, but of a political nature. It cannot be denied that China’s Internet control itself is part of its politics, and a despotic politics as well. Therefore, the “power for money” exchange that takes place between western companies like Yahoo! and the CCP not only damages the interests of customers like Shi Tao, but also damages the principles of equality and transparency, the rules that all enterprises should abide by when engaging in free trade. And it follows that if Yahoo! gains a bigger stake in the Chinese market by betraying the interests of its customers, the money it makes is “immoral money”, money made from the abuse of human rights. This is patently unfair to other foreign companies that do abide by business ethics.⁸¹ (The full text of Liu’s letter can be found in Appendix VII.)

After being censored by Microsoft’s MSN Spaces (details in following section on Microsoft), Chinese blogger Zhao Jing, a.k.a. Michael Anti, wrote that the Chinese people were probably still better off that Microsoft’s MSN and Google were engaged in China despite their compliance with Chinese censorship.⁸² However he had no such feelings for Yahoo!: “A company such as Yahoo! which gives up information is unforgivable. It would be for the good of the Chinese netizens if such a company could be shut down or get out of China forever.”⁸³ He was even more blunt in an interview with the New York Times: “Yahoo is a sellout,” he said. “Chinese people hate Yahoo.”⁸⁴ Such opinions are examples of the way in which Yahoo!’s behavior in China is viewed by Chinese intellectuals and opinion-leaders concerned with free speech issues.

While no comprehensive opinion survey of Chinese Internet user perceptions has been conducted to date, there is evidence that publicity about Yahoo!’s conduct in China has caused at least some Chinese Internet users to choose other email services. A question was recently posed in Chinese on a blog: “which do you trust more, yahoo.cn email, Gmail or Hotmail?” A number of respondents cited privacy concerns with Yahoo!, and others expressed appreciation that Gmail enables the user to use browser-based encryption through the “https” protocol.⁸⁵

2. Microsoft Corp.

“As a successful global corporation, we have a responsibility to use our resources and influence to make a positive impact on the world and its people.”

—“Global Citizenship at Microsoft”⁸⁶

“We remove a small number of URLs from the result pages in the MSN China Search site to omit inappropriate content as determined by local practice, law, or regulation [emphasis added]. We provide a link to a notice if search results have been filtered or may contain non-functional links but we do not block whole queries.”

—Pamela S. Passman, Vice-President, Global Corporate Affairs, responding to letter from Human Rights Watch⁸⁷

While Microsoft has had a business and research presence in China since 1992, the Chinese version of the Microsoft Network (MSN) online portal was launched only in mid-2005, after the formation of a joint venture between MSN and Shanghai Alliance Investment Ltd. (SAIL) to create MSN China in May 2005.⁸⁸ (Funded by the Shanghai City Government, SAIL is a venture fund led by Jiang Mianheng, son of former PRC president Jiang Zemin.)⁸⁹

Blog censorship: Within a month of MSN China’s rolling out its Chinese portal, Microsoft came under criticism from the press and bloggers (both Chinese and Western) for censoring words such as “democracy” and “freedom” in the titles of its Chinese blogs.⁹⁰ Meanwhile, testing of the service in December showed that censorship of MSN Spaces Chinese blogs had been extended beyond titles of the full blogs to the titles of individual blog posts themselves. As shown in Fig. 6, testing also showed that while sensitive words such as “Tibet independence” and “Falungong” (the banned religious group) could be posted in the body of blog posts, use of such words would cause the entire blog to be shut down within days, by Microsoft staff on Microsoft servers.⁹¹

The extent of MSN Spaces censorship created an uproar after the popular blog of Zhao Jing, writing under the pseudonym Michael Anti, was shut down on December 30, 2005.⁹² In 2005 Zhao had become one of China’s edgiest journalistic bloggers, often pushing at the boundaries of what is acceptable. He had started blogging on MSN Spaces in August 2005 after his original blog hosted by the Scotland-based company Blog-City.com was blocked by Chinese Internet service providers. In December Zhao used his blog to speak out when propaganda authorities cracked down on Beijing News, a relatively new tabloid with a national reputation for exposing corruption and official abuse. The editor and deputy editors were fired and more than one hundred members of the newspaper’s staff walked out in protest. Zhao covered the crackdown extensively on his MSN Spaces blog, discussing behind-the-scenes developments, supported the walkout and called for a reader boycott of the newspaper. Microsoft told the New York Times that MSN Spaces staff deleted Zhao’s blog “after Chinese authorities made a request through a Shanghai-based affiliate of the company.”⁹³

Microsoft’s response: Public outcry and criticism of Microsoft’s action was so strong in the United States that by late January 2006 Microsoft decided to alter its Chinese blog censorship policy.⁹⁴ Called to testify before the U.S. House of Representatives in February to explain its collaboration with Chinese government censorship requirements, Microsoft outlined the following efforts at transparency while still complying with Chinese censorship requirements:

 

First, explicit standards for protecting content access: Microsoft will remove access to blog content only when it receives a legally binding notice from the government indicating that the material violates local laws, or if the content violates MSN’s terms of use.

 

Second, maintaining global access: Microsoft will remove access to content only in the country issuing the order. When blog content is blocked due to restrictions based on local laws, the rest of the world will

Figure 6: MSN Spaces – Error message when attempting to post blog entry with title “Tibet Independence”

continue to have access. This is a new capability Microsoft is implementing in the MSN Spaces infrastructure.

Third, transparent user notification: When local laws require the company to block access to certain content, Microsoft will ensure that users know why that content was blocked, by notifying them that access has been limited due to a government restriction.⁹⁵

Nina Wu, the sister of detained filmmaker and blogger Wu Hao, had been using an MSN Spaces blog from March 2006 until his release that July to describe her quest to secure

Figure 7: Error message appearing on December 30 after blog of Michael Anti (Zhao Jing) was taken down (http://spaces.msn.com/mranti/)

her brother’s release and her personal shock that his legal and constitutional rights appeared to have been ignored by Chinese authorities. (Wu Hao, who was working on a documentary film about Christians in China at the time of his disappearance on February 22, 2006, was held by Chinese State Security without formal arrest, charge, trial, or access to a lawyer until his release on July 11, 2006.) Throughout this time her blog was not taken down or blocked to Chinese users. Likewise, the wife of dissident AIDS activist Hu Jia has also been able to maintain a blog on MSN Spaces describing her husband’s ordeal, as well as similar ordeals experienced by the families of other activists. Both blogs have remained uncensored and visible, despite the fact that their subject matter is arguably as politically sensitive, if not more so, than the content on Michael Anti’s blog.⁹⁶ On April 10 Nina Wu reflected on her own experiences with censorship:

After Haozi disappeared, browsing the Internet and searching for related information became a mandatory daily class. I have googled a great deal of information on “Hao Wu,” but I can’t visit many of the search results, especially addresses with .org suffixes. Eight or nine out of ten will return “Impossible to display this webpage.” I don’t know what kind of sensitive information these websites contain. Before, I did not believe in “Internet censorship.” This was because I used to visit mostly finance and investment websites, which rarely have problems. Only when I faced a serious predicament did I discover that this was a real problem.

Today someone asked me about the effect of Haozi’s incident on me and other family members. I think the most direct effect is that I began to be concerned about my own “rights” and the social problems that Haozi was concerned about.⁹⁷

However, some other Chinese bloggers have reported takedowns of their MSN Spaces blogs in recent months.⁹⁸ It is not known whether Chinese authorities have made requests for those blogs to be taken down, but if the blogs of Nina Wu and Zeng Jinyan remain visible due to Microsoft’s revised policies, this is a step in the right direction, and an example of the way in which companies can successfully resist pressure to proactively censor politically sensitive content.

By the end of 2005, MSN Spaces hosted more Chinese blogs than any other Chinese-language blog-hosting service, surpassing its homegrown PRC competitors.⁹⁹ It remains to be seen at this writing how or whether Microsoft’s efforts to institute greater accountability and transparency will impact competition with MSN Spaces’ domestic Chinese competition.

Chinese bloggers react: While the blog of Zhao Jing, a.k.a. Michael Anti, was censored by MSN Spaces, Zhao has said on his blog and in media interviews that while he would have preferred not to have been censored, it is on balance better that MSN has found a way to compromise, yet still provide a platform on which ordinary Chinese can speak much more freely than before—albeit not completely freely. ¹⁰⁰ Upon reading news that there would be congressional hearings he wrote:

Furthermore, at a time when globalization and politics are mixed up, I do not think that we can treat everything in black-and-white terms as being for or against the improvement of freedom and rights for the people of China. On one hand, Microsoft shut down a blog to interfere with the freedom of speech in China. On the other hand, MSN Spaces has truly improved the ability and will of the Chinese people to use blogs to speak out and MSN Messenger also affected the communication method over the Internet. This is two sides of the practical consequences when capital pursues the market. How the Americans judge this problem and mete out punishment is a problem for the Americans. If they totally prevent any compromised company from entering the Chinese market, then the Chinese netizens will not be freer at least in the short term. Besides, we must distinguish between the sellout by Yahoo! and the compromise by Microsoft, because they are completely different matters.¹⁰¹

In the days after Zhao’s blog was censored, many other Chinese bloggers (many of them on MSN Spaces) carried out lengthy discussions of his case, republishing his final posts, and generally expressing sympathy. They were not censored by MSN, even though Zhao himself had been. An interesting essay by a blogger named Chiu Yung began to circulate in the Chinese blogosphere, arguing that MSN did the right thing by “sacrificing” Anti. If it hadn’t, the reasoning went, the entire MSN Spaces service would become unavailable to all Chinese bloggers, and that would be a greater loss. The essayist wrote that Chinese people should thank MSN for the same reason they should thank the U.S. for not implementing sanctions. He also argued that Chinese people themselves are ultimately responsible for allowing their fellow countrymen to be censored, and that the ultimate solution is going to have to be initiated by the Chinese themselves.¹⁰²

Figure 8: MSN Search on “Tiananmen Massacre”

Search engine: In October, Microsoft launched a search technology center in China and on January 3, 2006, MSN launched its own “beta” (test-version) Chinese search  engine, at http://beta.search.msn.com.cn, which was integrated into the MSN China portal as http://search.msn.com.cn.¹⁰³ Initial testing of the “beta” version in January by editors at CNet News.com showed the MSN search tool linking to a number of sites

Figure 9: MSN Beta Chinese search on “Tiananmen Massacre”

that are blocked by Yahoo! and Google search, including Human Rights Watch’s hrw.org, although there were some other sites not blocked by Google and Yahoo! (such as time.com) that were blocked by MSN search.¹⁰⁴ (See Section III for Human Rights Watch’s detailed analysis comparing MSN’s Chinese search results to those of Google, Yahoo!, and Baidu.) Meanwhile, on searches that have been censored to exclude politically sensitive search results, the MSN Chinese search engine often (but not always) includes a notification to users at the bottom of the page which says: “The search results have omitted some content. [click here to] Find out why.” The hyperlinked text then takes the user to an explanatory page containing explanations of a list of features and potential questions related to MSN search results. Near the bottom of the page is the heading “When there are no search results or filtered search results,” under which is the

Figure 10: Search on MSN Chinese “Beta” for “Gao Zhisheng” (human rights lawyer)

following text: “When there are no or very few search results, please try a similar word or a phrase that describes the word’s meaning. Sometimes, according to the local unwritten rules, laws, and regulations, inappropriate content cannot be displayed.”¹⁰⁵ MSN also de-lists websites from its search engine, as discussed in Section III and depicted in Fig. 11 of this section. Human Rights Watch has found that while MSN’s Chinese search engine turns up more diverse information on political and religious subjects than Yahoo! and Baidu, it censors content more heavily than Google.cn (see Section III for details).

Figure 11: MSN de-listing of time.com

Hotmail stays offshore: For the time being, Microsoft executives have admitted that Microsoft has held off providing Chinese-language Hotmail services hosted on servers inside the PRC due to concerns that Microsoft would find itself in the same position as Yahoo!, that is, subjecting its local employees to official requests for email user data, with which they would feel compelled to comply. Microsoft has been successful in refusing Chinese government requests for Hotmail user data in the past, on the grounds that the data is not under PRC legal jurisdiction.

3. Google, Inc.

                        “Ten Things that Google has found to be true …

6. You can make money without doing evil.”

                        —Google, “Our Principles”¹⁰⁶

“The prize is a world in which every human being starts life with the same access to information, the same opportunities to learn and the same power to communicate. I believe that is worth fighting for.”

                                                            —Eric Schmidt, chief executive of Google¹⁰⁷

“I think it's arrogant for us to walk into a country where we are just beginning to operate and tell that country how to operate.”

                                    —Eric Schmidt, chief executive of Google¹⁰⁸

While Google has had a Chinese language search engine since September 2000, the company did not set up a physical presence inside the People’s Republic of China until the launch of its Beijing research and development center in July 2005.¹⁰⁹

Early problems: In September 2002, the Chinese government temporarily blocked Google.com on Chinese Internet service providers, making it completely impossible for Internet users inside China to access Google’s search engine without use of a proxy server or other circumvention tools. Instead, people typing Google.com into their search engines would be automatically re-directed to Chinese search engines. Soon after this happened, Google issued a statement that the company was working with Chinese authorities to restore access. The block was lifted after two weeks.¹¹⁰ In an interview not long after Google was unblocked, co-founder Sergey Brin stated that Google did not negotiate with Chinese authorities to have the search engine unblocked, and that instead “popular demand” had made it impossible to keep it blocked.¹¹¹ It is not clear in what way popular demand was measured or how it changed from 2002 to 2006, when Google decided to launch the censored Google.cn site.

However, testing conducted by the OpenNet Initiative (ONI) in 2004 concluded that “while Google is accessible to Chinese users, not all of its functions are available; because of China’s content filtering technologies, users of Google within China experience a much different Google than those outside.” China was (and still is) blocking––at the service router level––all access to Google’s “cache” (the link provided along with each search that enables you to access an earlier “snapshot” of the webpage you are looking for, in case the real version has been taken down or rendered inaccessible for whatever reason.¹¹²

Additionally, as with all search results, the ONI test found that the Chinese censorship system was blocking thousands of Google search results that would manifest in one of two ways: 1) When a search on a particular word or phrase yielded links to banned sites being filtered by the Chinese “firewall,” the user encounters an error page upon clicking on one of the censored links. There is no warning