I. Summary

Lawyers who handle mass cases should accept supervision and guidance by judicial administration departments.

—Guiding Opinions of the All-China Lawyers Association on Lawyers Handling Mass Cases

These Guiding Opinions give a message to lawyers: Don’t take up mass cases.

—Posting on the Internet bulletin board of the All-China Lawyers Association

The development of a strong, independent legal profession in China is critical to the country’s long-term stability.¹ The Chinese party-state has repeatedly stressed the need to develop the legal profession as part of its stated commitment to rule of law, and extolled the role that lawyers can play in resolving social contradictions. Yet in March 2006 the authorities introduced new regulatory curbs on lawyers representing protesters and plaintiffs bringing collective lawsuits. These restrictions effectively deprive people with lawful collective complaints of meaningful legal representation, and risk instilling a sense of futility about legal avenues of redress that may exacerbate social unrest in the future. This is a significant development for the fate of legal reforms in China. This report analyses the new regulations and the background against which they were adopted.

Over the past few years China has seen a sharp increase in public protests, both in rural and urban areas. In 2005 the Chinese government estimated the number of “mass incidents” at 87,000, quadruple what it was a decade ago.

That public protests occur at all in a one-party state may at first glance seem surprising. A couple of dozen incidents at most are reported in domestic and overseas media every year. But with the myriad social problems facing China, exemplified by escalating social and economic inequalities, intensifying labor disputes, a severe environmental crisis, and the need to absorb millions of migrant workers moving from deprived rural areas to the cities, even the Chinese Communist Party (CPC) has recognized the need to allow some outlets for the expression of grievances. In a balancing act, the authorities now tolerate many public protests while suppressing others they believe are threatening to national or local power or overall social stability. In many cases, the local authorities still punish protest organizers or participants, while at the same time trying to address the grievances that caused the protests in the first place.

China’s top leaders, acknowledging that many of these protests were responses to local government abuses, have promised to enhance access to judicial and administrative remedies, and have reiterated at every opportunity their commitment to the rule of law. Indeed, the establishment of a legal system that can resolve not only criminal or commercial matters—now a top priority for the government—but also conflicts between ordinary citizens and the government is imperative for the rule of law and the defense of human rights.

While the authorities still allow some protests to take place, they have banned most domestic media coverage of incidents of unrest, promulgated new regulations designed to prevent petitioners from taking their cases to Beijing, and allowed massive deployment of security forces to suppress protesters, such as a December 2005 confrontation in Dongzhou, Guangdong province, in which police shot and killed at least three protesters.

Government claims to be committed to the rule of law are further undermined by a plethora of physical attacks on lawyers that remain unpunished (the subject of a forthcoming Human Rights Watch report). Local authorities often deploy a wide range of tactics to obstruct the work of lawyers, including unlawful detentions, disbarment, intimidation, and simply refusing to accept a case into the court system.

Most recently, a number of new restrictions have been introduced on the ability of lawyers to freely practice their profession and represent poor and marginalized groups against state agencies and officials who abuse or ignore the law. On March 20, 2006, the government-controlled All-China Lawyers Association (ACLA)—in essence the national bar association—issued the “Guiding Opinions on Lawyers Handling Mass Cases,” which instruct lawyers to seek the “supervision and guidance” of judicial administrative bureaus when handling mass cases (defined as involving 10 or more plaintiffs²), and provide for closer supervision by the government-controlled local lawyers associations.  The ACLA says that the Guiding Opinions are necessary to “safeguard the legal rights” of lawyers handling mass cases, and that they aim to enhance the ability of lawyers to resolve disputes between citizens and their respective local governments. In fact, the Guiding Opinions introduce extensive restrictions on lawyers handling mass cases and sharply curtail the ability of plaintiffs to be meaningfully assisted or represented by lawyers when they seek justice.

Prior to the adoption of the Guiding Opinions, Chinese lawyers were already constrained by the Law on Lawyers, which stipulates that they receive supervision and guidance from the judicial bureaus operating under the Ministry of Justice (MOJ). Local judicial bureaus are part of the local government’s structure, and therefore under the direct authority of their respective local government and local party committee—in particular the party’s Political and Legal Committee in charge of legal affairs. In practice, judicial bureaus have the authority to compel lawyers associations and lawyers to follow their instructions about how the legal profession operates, and can impose disciplinary penalties on lawyers, including the suspension or cancellation of their licenses.

But even though politically motivated interference by the judicial bureaus was already routinely occurring, the Guiding Opinions legitimize and systematize such interference, and introduce specific requirements for mass cases that do not exist for other types of cases. For example, the Guiding Opinions require that at least three partners in the law firm sign off before a lawyer accepts a mass case, demand that lawyers report to government departments when disputes intensify, and mandate that lawyers exercise “caution” in their contact with the media and with foreign organizations. Since the adoption of the Guiding Opinions, lawyers involved in sensitive cases have privately confided that they have come under pressure from their employers or other partners in the firm to stop doing work that may potentially jeopardize business. In the past, some lawyers have been forced to quit their firms as a result of their sensitive work on behalf of protesters.  

The Guiding Opinions cite the need to maintain “stability” as a reason for their promulgation—a telling statement of the acute political sensitivity regarding public protests. They refer to the “major impact” that  land seizures, forced evictions, relocations from dam areas, and lays-offs resulting from state-owned enterprise restructuring—precisely the kinds of problems that give rise to “mass cases”—can have on “the country’s stability.” Citing stability is a trump card of the party and government, as the term refers as much to the nonappearance of potential challenges to party rule—such as autonomous social, political, or religious groups—as to law and order in society.

In a worrying sign that the Guiding Opinions may lead to further restriction on lawyers’ activities, several provinces and municipalities have since adopted similar regulations, which in many cases are even more restrictive. These make clear that political considerations are paramount and that lawyers must act as auxiliaries of the judicial bureaus when handling politically sensitive cases involving protesters.

The Guiding Opinions also appear to signal the government’s intent to target lawyers active in the self-termed “rights protection movement” (weiquan yundong). Made up of an informal assemblage of lawyers, legal scholars, journalists, and nongovernmental organization (NGO) activists, the weiquan movement aims to uphold through legal activism and litigation the constitutional and legal rights of people who are victims of administrative arbitrariness, mostly by predatory and abusive local officials.  It is these legal activists who are most likely to represent aggrieved parties in mass cases stemming from environmental, employment, or land-related incidents, among others.

The rights protection movement has become the main conduit for disclosing and bringing international attention to specific incidents that domestic media are prohibited from reporting. Acting as human rights defenders, weiquan activistshave often themselves become victims of retaliatory measures or intimidation from the local authorities they try to hold to account.

On April 11, 2006 (four days before the Guiding Opinions were made public), the Politburo’s top authority on legal matters, Head of the Legal and Political Committee Luo Gan, urged in an internal party speech the adoption of “forceful measures… against those who carry out sabotage under the pretext of rights protection [weiquan] … so as to protect national security and the political stability of society.” ³

Most recently, the government’s hostility towards rights protection lawyers was reflected in the four-year and three-month sentence given to Chen Guangcheng, a self-taught rights advocate who exposed abuses in family planning policies, and in the arrest of two prominent human rights lawyers: Gao Zhisheng,once named by the official Xinhua news agency as “one of the top 10 lawyers in China,” on subversion charges, and Guo Feixiong, a non-qualified lawyer who had been providing legal advice to rural protesters across the country, on criminal charges.

The adoption of the Guiding Opinions is a major setback to efforts to promote the rule of law. Since the mid-1990s there have been some important advances for the legal profession, and lawyers have gained a degree of independence from the direct control of the state. The ranks of lawyers and the fields of legal practice have expanded gradually. The state has consistently encouraged the idea that citizens have basic rights and can turn to the courts when those are violated, and several national television programs, reaching hundreds of millions of viewers each week, regularly depict citizens fighting for justice against local authorities through the courts. But despite this overall improvement for lawyers and their clients, progress remains tenuous and open to reversals. Extensive restrictions remain in place, including the lack of independence of bar associations and the very weak status of lawyers in judicial procedures compared with that of the state actors (the police, the procuracy, the courts).

An independent legal profession is critical to the ability of ordinary people to exercise their fundamental rights—such as freedom of expression, association, assembly, and petition—under Chinese law, the Chinese constitution, and international law. Constraining the ability of lawyers to litigate on their behalf is tantamount to constraining those rights. Even though many of the provisions of the Guiding Opinions are aimed at the “rights protection lawyers,” in reality they fundamentally harm the entire profession by limiting its independence and legitimizing the interference of local governments in professional processes. Even less politically sensitive initiatives that have been endorsed by the government, such as public interest litigation in consumer rights and environmental protection areas, could find themselves in jeopardy under the new Guiding Opinions.

Along with recent attacks on and the detention or arrest of prominent lawyers, and in a context where the government views the activism of lawyers as glimmerings of a legal opposition, the promulgation of the Guiding Opinions may presage even more restrictions on the activities of lawyers. The Chinese government should be aware that restricting access to legal avenues for solving disputes may deepen the sense of futility of the public in the legal system. Perversely, these restrictions may actually lead to more protests, further fuelling unrest across the country. Putting a lid on the activities of lawyers may remove a vital pressure release valve for the one-party system.

Human Rights Watch urges the ACLA and the Chinese government to repeal the Guiding Opinions and its local variants. It is not the role of lawyers to protect social and political stability. Their duty is to represent their clients in an ethical and professional manner. Instead of enacting regressive regulations, the government should enact statutes that guarantee full independence of the Chinese Bar as a preliminary step to providing effective protection to lawyers discharging their duty as required by international standards on lawyers and the judiciary.

[1] In accordance with the established usage, in this report the term “legal profession” refers to lawyers only, and not to other law professionals such as judges, prosecutors, or legal academics. The corresponding Chinese term is lüshi hangye (律师行业), literally “lawyer profession.”

[2] There is no equivalent for class action suits in Chinese law: plaintiffs in mass cases represent only themselves even though in practice they often seek remedy for a whole class of people. For instance a group of farmers would sue the local authorities in the hope that an abusive or illegal decision might be invalidated, thus benefiting the entire village.

[3] Luo Gan’s speech was published in the party’s theoretical journal, Seeking Truth, in June 2006. See Luo Gan, “Bolstering the teaching of the concept of socialist rule by law: Conscientiously strengthening the political thinking of the political and legal ranks,” Seeking Truth, Issue No. 433, June 16, 2006 [罗干, “深入开展社会主义法治理念教育  切实加强政法队伍思想政治建设”, 求是, 2006年6月16日（总433期）], http://www.qsjournal.com.cn/qs/20060616/GB/qs^433^0^1.htm (accessed October 16, 2006).

II. International Standards for Lawyers

The independence of lawyers is a fundamental principle of international human rights law. Lawyers play a major role in ensuring that victims or potential victims of human rights violations obtain effective remedies and protection, and that perpetrators of human rights violations are brought to justice. The importance that the international community places upon the independence of the judiciary and of lawyers is evidenced by the emphasis that it is given in numerous international and regional treaties,⁴ United Nations (UN) resolutions⁵ and international statements,⁶ to many of which China has agreed, such as the Beijing Basic Principles on the Independence of the Judiciary.⁷  

The most detailed exposition of the rights and responsibilities of lawyers is found in the United Nations Basic Principles on the Role of Lawyers.⁸ Among other things, the Basic Principles provide for:

• The independence of lawyers: “Adequate protection of the human rights and fundamental freedoms to which all persons are entitled … requires that all persons have effective access to legal services provided by an independent legal profession.”⁹
• Freedom of expression and association: “Lawyers shall be entitled to form and join self-governing professional associations… The executive body of the professional associations … shall exercise its functions without external interference.”¹⁰
• Confidentiality of communications between lawyers and their clients: “Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”¹¹
• Protection from unlawful interference: “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”¹²
• Right to due process for lawyers facing disciplinary sanctions: “Lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.”¹³

The UN Declaration on Human Rights Defenders recognizes that non-lawyers have “the right, individually and in association with others… to offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.”¹⁴ 

The Basic Principles and the Declaration are not, in themselves, legally binding instruments. However, they contain a series of principles and rights that are based on human rights standards enshrined in other international instruments, such as the International Covenant on Civil and Political Rights.¹⁵ These principles are now commonly referred to in academic legal studies in China, although they have not been incorporated into domestic law.¹⁶

[4] For example, judicial independence is guaranteed in the Universal Declaration of Human Rights, art. 10; International Covenant on Civil and Political Rights, art. 14.1; European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6; African Charter on Human and Peoples' Rights, art. 7; American Convention on Human Rights, art. 8; and Inter-American Democratic Charter, art. 3.

[5] For example, UN General Assembly Resolutions 40/32 (29 November 1985) and 40/146 (13 December 1985); UN Commission on Human Rights Resolutions 2004/33 (19 April 2004), 2003/43 (23 April 2003), 2002/43 (23 April 2002), 2001/39 (23 April 2001), and 2000/42 (20 April 2000).

[6] For example, the Suva Statement on the Principles of Judicial Independence and Access to Justice (2004); Cairo Declaration on Judicial Independence (2003); Bangalore Principles of Judicial Conduct (2002); UN Basic Principles on the Role of Lawyers (1990); Beijing Basic Principles on the Independence of the Judiciary (1985); International Bar Association's Minimum Standards of Judicial Independence (1982); and UN Draft Principles on the Independence of the Judiciary (1981).

[7] The vice-president of the People’s Supreme Court was the signatory for China.

[8] The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, “should be respected and taken into account by Governments within the framework of their national legislation and practice” (preamble).

[9] Basic Principles on the Role of Lawyers, preamble.

[10] Ibid., principle 24.

[11] Ibid., principle 22.

[12] Ibid., principle 16.

[13] Ibid., principle 28.

[14] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the UN General Assembly at the 85th plenary meeting, December 9, 1998.

[15] While China has not ratified the Covenant, it is still “obliged to refrain from acts which would defeat the object and purpose of the treaty” because it has signed the ICCPR and has not expressed an official intention to not become a party to it. See Vienna Convention on the Law of Treaties, art. 18; Peter Malanczuk, ed., Akehurst’s Modern Introduction to International Law (London: Routledge, 7th edition, 1997), p. 135.

[16] See, for example, Ye Qing and Gu Yuejin eds., Study of the Lawyers System in China (Shanghai: Shanghai Academy of Social Sciences Press, 2005), p. 55. [叶青，顾跃进（主编），中国律师制度研究，上海：上海社会科学出版社，2005, 第55页.]

III. The Legal Profession: A General Lack of Independence

The political upheavals of the Mao era resulted in the dismantling of the Ministry of Justice and the abandonment of other legal institutions. China’s formal legal system was only reestablished in 1978 by Deng Xiaoping, and the role of defense lawyers was reinstated the next year in the Criminal Procedure Law. But lawyers did not act only in the interests of their clients: the 1980 regulations on lawyers defined them as “legal workers of the state.”¹⁷ In 1989 the Ministry of Justice started to draft a law governing the profession of lawyers. It came into force on January 1, 1997, and recognizes lawyers as “professionals providing legal services to society.”¹⁸

During this same period, China enacted many new laws and regulations, reconstructed a court system, and elevated the concept of “ruling the country according to law” (yi fa zhi guo) to ideological and constitutional prominence.¹⁹

Alongside rapid economic development, this process led to a surge in the number of lawyers. In 1986 there were about 21,500 lawyers. This more than doubled to 45,000 by 1992 as the first private law firms emerged, largely to service the growing private business sector. There are now around 120,000 lawyers and 12,000 law offices.²⁰ Yet this is still a low figure for a country the size of China, with a proportion of lawyers to the total population at just 0.9 per 100,000.²¹

In recent years there have been significant advances for the legal profession. The development of trade and external pressure for a rules-based system for business and China’s accession to the World Trade Organization, as well as recognition that part of modernization is the development of the rule of law, have noticeably strengthened the autonomy of lawyers and law firms.  Local bar associations have become more vocal in promoting the rights and interests of the legal profession. Academic debates and the Internet have contributed to legitimating the role and usefulness of lawyers in society.

There have also been benefits for ordinary Chinese. Lawyers are playing a greater role than ever in representing victims of human rights abuses. They have helped gain recognition of grievances, promoted legal awareness among victims of abuses, provided legal aid and counsel for claiming judicial or non-judicial remedies, fostered better compliance with statutory procedural requirements from law enforcement agencies and courts, and monitored the enforcement of judicial decisions. This has been allowed as the CPC and government have encouraged the idea that ordinary citizens have legal rights, as a way of ensuring social stability, checking petty corruption, and channeling social grievances into the party-controlled judicial system.

However, lawyers lack independence and necessary protections under Chinese law. The legal system in which they operate still suffers from the systematic interference of party and government officials. The CPC, through its political and legal committees at the central and local level, continues to supervise and direct the work of judicial organs, including courts, procuracies, public security, and lawyers associations. In practice, party Committees play a central role in all the cases that are considered important or politically sensitive, “consulting all institutions involved and deciding a case in conjunction with them.”²²

The Law of the People’s Republic of China on Lawyers (hereafter, “the Law on Lawyers”), revised in 2001, is the chief statute governing the legal profession.²³ It stipulates the qualification requirements, rights and duties, scope of professional activities, and management system of lawyers and law firms. In order to practice, lawyers must obtain a license from the judicial bureaus, and apply for renewal every year. Association with a law firm is an absolute requirement and lawyers cannot accept cases in their own name: all contracts are passed between the client and the law firm. The Law on Lawyers gives authority to the judicial administration departments of the Ministry of Justice (also referred to as “judicial bureaus”) to “supervise and guide lawyers, law firms and lawyers associations.”²⁴ This means that judicial bureaus have the authority to require lawyers associations and lawyers to follow their instructions about how the legal profession operates, the range of professional activities lawyers can engage in, and at what level lawyers fees are set.

Lawyers are vulnerable to interference by judicial and other state institutions. The judicial administration departments and their equivalents at the local level have the power to issue warnings or sanctions, or to revoke the licenses of lawyers who violate the Law on Lawyers and commit “other acts in respect of which penalties should be imposed.”²⁵  Although it is very difficult to know how many lawyers are penalized every year and why, the judicial authorities at different levels regularly publish reports about the number of law firms that have been “stopped for rectification” (tingye zhengdun), de-registered (zhuxiao), or issued administrative warnings (bei xingzheng jinggao); and about lawyers who have had their licenses withdrawn (diaoxiao), or have been suspended for a period of time (tingzhi zhiye), have been “issued criticisms” (tongbao piping), or temporarily de-registered (bei zanhuan zhuce). In practice, these decisions are almost impossible to challenge. The Law on Lawyers also empowers judicial departments to impose disciplinary penalties against lawyers, including cessation of practice, for “acts in respect of which penalties should be imposed”—a circular definition allowing great discretionary powers.²⁶ Through the annual renewal of lawyers’ licenses, the judicial administration departments are able to ensure the compliance of lawyers with their directives.²⁷

Chinese lawyers depend greatly on cooperation from the law enforcement organs, or gongjianfa, to perform their duties. Standard practices such as accessing court documents and evidence held by the investigating organs, filing a case in court, or meeting with a client in detention are in practice achieved only at the discretion of these institutions. Lawyers commonly refer to the “three difficulties” (san nan) they face in their work: difficulties in seeing their clients, difficulties in accessing official documents (anything from the evidence held by the Public Security Bureau to arrest warrants), and difficulties in gathering evidence (from interviewing witnesses to obtaining evidence held by other state agencies).²⁸ Lawyers who take on sensitive cases find that doing so jeopardizes their relationship with gongjianfa officials, such that their ability to make a living can be compromised.²⁹  This too serves as a powerful deterrent. 

The All-China Lawyers Association, the Chinese equivalent of a bar association, is also subordinate to the Ministry of Justice, from which it receives “guidance and supervision.” In practice, the ACLA must comply with instructions issued by the MOJ and regulate the profession in accordance with the directives of the MOJ’s department in charge of lawyers, the “Lawyers and Notaries Bureau.” All lawyers must join the local branch of the ACLA in order to practice. The head and secretary of the local lawyers association are generally appointed by the local judicial bureaus. A lawyer who has joined his or her local lawyers association is at the same time a member of the All-China Lawyers Association.³⁰ Disciplinary proceedings against lawyers by the ACLA are not subject to independent judicial review. ACLA sanction proceedings have been used to retaliate against human rights and civil rights lawyers. For instance, Beijing lawyer Gao Zhisheng, Shanghai lawyer Zheng Enchong, and now-exiled Shanghai lawyer Guo Guoting all lost their licenses under administrative pretexts for their work in politically sensitive cases (Gao Zhisheng’s case is discussed further in Section IV, below).³¹

Lawyers routinely identify lack of independence as the structural challenge to their profession. As a comprehensive study on lawyers published by the Shanghai Academy of Social Sciences Press in 2005 writes, “The core question in the reform of the legal profession is the self-governance of the profession. Lawyers should independently carry out their professional duties and not be subjected to interference from state organs, groups or individuals.”³² Indeed, local power holders can easily use, or abuse, government channels or party channels, through the judicial bureaus and the lawyers association (whose leaders are selected by the judicial bureaus anyway), to preclude legal challenges brought by lawyers on behalf of plaintiffs. Such interventions are often made on the pretext that matters are sensitive or would jeopardize social stability. This situation had led many lawyers and scholars to blame the overall political structure—in particular the one-party system—for the current problems hindering the legal profession.³³

In practice, if the local authorities judge that protesters should not be allowed to bring a lawsuit, they can instruct the lawyers association and the judicial administration bureau to act accordingly. A lawyer who took no heed of these instructions would be subject to sanctions either from the lawyers association or the judicial administration bureaus. For instance, Zhu Jiuhu, a lawyer who represented private operators contesting the confiscation of oil fields by the Shaanxi government, was repeatedly warned to drop the case or face economic and administrative retribution. When he refused to comply, he was put into detention by the local Public Security Bureau on trumped-up charges.³⁴

[17] Standing Committee of the National People’s Congress, Interim Regulations of the People’s Republic of China on Lawyers, Promulgated on August 26, 1980.

[18] Law of the People’s Republic of China on Lawyers, adopted May 15, 1996 (revised December 29, 2001), art. 2.

[19] For a general account of legal reforms since 1978, see Stanley B. Lubman, Bird in a Cage: Legal Reform in China after Mao (Stanford: Stanford University Press, 1999); and Randall Peerenboom, China's Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002).

[20] “China’s lawyers failing to provide nationwide service,” Xinhua News Agency, July 10, 2006.

[21] Lawyers-to-population ratio is hardly comparable from one country to another because of the specificities of each legal system. For illustration purposes the figure per 100,000 people is 1.2 for Japan, 1.3 for India, 4 for France, 15.4 for the United Kingdom, and 32.7 for the United States. “China has a strong demand for lawyers,” China Economic Net (www.ce.cn), October 10, 2005, http://en.ce.cn/Insight/200510/11/t20051011_4902926.shtml (accessed August 3, 2006).

[22] Yuwen Li, “Court Reforms in China: Problems, Progress and Prospects,” p. 59, note 10, in Jianfu Chen, Yuwen Li, Jan Michiel Otto, eds., Implementation of Law in the People’s Republic of China (The Hague: Kluwer Law International, 2002).

[23] Standing Committee of the National People’s Congress of the PRC: Law of the People’s Republic of China on Lawyers, adopted May 15, 1996, revised December 29, 2001, effective January 1, 2002. At present there are over 150 additional laws, regulations, judicial interpretations, and professional rules for lawyers. See Regulations and Professional Standards for Lawyers in China (Beijing: China Law Press, 2005). [中国律师管理法规与行业规范, 北京：法律出版社, 2005.]

[24] Law of the People’s Republic of China on Lawyers (“Law on Lawyers”), art. 2.

[25] Ibid., art. 44.

[26] Ibid., art. 10.

[27] For a detailed study of the difficulties faced by criminal lawyers see Ping Yu, “Glittery Promise vs. Dismal Reality: The Role of a Criminal Lawyer in the People’s Republic of China after the 1996 Revision of the Criminal Procedure Law,” Vanderbilt Journal of Transnational Law, vol. 35: 827, May 2002, pp. 827-865.

[28] There is a vast literature on the “three difficulties” (三难) issue.  For a recent example see “Experts advise for the prompt reform of the criminal procedure law – Solving the “three difficulties” of defense lawyers,” China Legal Publicity, July 8, 2006. [“专家建议尽快修改刑诉法 - 解决刑辩律师“三难”,” 中国普法网，2006-07-08.]

[29] On this point see Ethan Michelson, “The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work,” Law & Society Review, vol. 40, No. 1 (2006), pp. 1-38. Michelson notes that “[t]he financial success of lawyers in China’s top corporate law firms working on international commercial transactions belies the grim reality that most Chinese lawyers are struggling for survival” (p. 10).

[30] Law on Lawyers, art. 39.

[31] Joseph Kahn, “Crackdown on Defense Lawyers Is Intensified in China,” The New York Times, August 18, 2006; “Detained rights activist and lawyer formally arrested,” South China Morning Post, October 3, 2006.

[32] Ye Qing and Gu Yuejin, eds., Study of the Lawyers System in China (Shanghai: Shanghai Academy of Social Sciences Press, 2005), p. 54. [叶青，顾跃进（主编），中国律师制度研究，上海：上海社会科学出版社，2005, 第54页.]

[33] See Ping Yu, “Glittery Promise vs. Dismal Reality,” Vanderbilt Journal of Transnational Law (vol. 35: 827), p. 863; Yi Sheng, “A Promised Unfulfilled: The Impact of China’s 1996 Criminal-Procedure Reform on China’s Criminal Defense Lawyers’ Role at the Pretrial State (Part 2), Perspectives, vol. 5, No. 1, March 31, 2004, in particular Section V.

[34] Howard W. French, “In China, whose oil is it?” The New York Times, July 19, 2005.

IV. Mass Cases and the Rights Protection Movement

The CPC appears to have realized that its viability depends to some extent on building a credible legal system. The authorities want people to turn to the courts and petitioning offices of the Letters and Visits system, ³⁵ instead of taking to the streets to resolve social discontent—so long as the authorities can control those courts and offices.

Lawyers in recent years have successfully defended victims of police mistreatment, won compensation for victims of officials’ abuses, and gained acquittals or sentence reductions for demonstrators, workers, political dissidents, journalists, and writers. They have prompted swift remedies from the central authorities for specific cases by attracting media and public attention, and brokered the resolution of countless acute labor, environmental, and land disputes.

A significant proportion of these cases involve dozens or even hundreds of plaintiffs, in what the authorities refer to as “collective” (jiti) and “mass” (qunti) cases, or, if they involve protests, “sudden incidents” (tufa shijian). These kinds of cases often revolve around livelihood issues such as land confiscation, forced evictions, forced relocations, life-threatening environmental pollution, layoffs induced by large-scale industrial restructuring, and non-payment of pensions and welfare benefits. Lawyers’ ability to take on mass cases may be one of the only ways to break an increasingly vicious cycle, in which the lack of legal protections and of clarity in property rights fuels abuses by corrupt local authorities, which in turn fuel public protests among those who have no access to justice. 

The increasing assertiveness of lawyers has progressively given rise to a small but influential movement of lawyers, law experts, and activists who try to assert the constitutional and civil rights of the citizenry through litigation and legal activism. The so-called “rights protection movement” (weiquan yundong) remains highly informal, and is mainly characterized by its willingness to take up and publicize cases that are politically sensitive because they involve citizens with grievances against local governments or state agencies. By circulating articles, maintaining web-logs (“blogs”), and mobilizing Internet communities, concerned journalists and scholars and the foreign media, members of the rights protection movement frequently expose the lack of legality in local government decisions and lack of credibility in central government commitments to a fair judicial system and “ruling the country according to law.”

Weiquan lawyers are often openly critical of the deficiencies of the legal system, and in particular of the lack of independence of the judicial system. At the same time, the hallmark of the movement has been to keep all activities strictly within the realm of Chinese law and to advise protestors not to resort to unlawful means of contention.

Along with other legal activists, weiquan lawyers have been the vanguard of a number of high-profile protests, such as those in Taishi (Guangdong province), Tangshan (Hebei), or Zigong (Sichuan), which have attracted widespread attention, including from the international media.³⁶ Overseas human rights organizations have also started to rely on weiquan lawyers’ accounts to report and document cases in which lawyers are serving as counsel and on incidents in which the lawyers themselves have become victims of abuses. 

One of the most serious obstacles to accessing justice is that courts can—wholly at their own discretion—refuse to entertain cases without providing any justification or offering alternative recourse. The problem is compounded by specific instructions that prohibit certain categories of cases. A regulation issued by the Supreme Court in 2002, for instance, provides that the “Peoples’ Courts should not accept civil lawsuits from plaintiffs if they concern disputes that have arisen during the course of State-Owned Enterprises reforms carried out by responsible government departments.”³⁷

Residents in Beijing reported that the courts were instructed to refuse cases involving residents forcibly evicted for urban redevelopment, and lawyers routinely complain that the courts will turn down cases without even explaining their decisions.³⁸ But making legal avenues appear futile in the eyes of the growing number of powerless and disenfranchised citizens left behind by economic reforms might ultimately heighten the risk of social unrest.

The Ministry of Public Security estimated the number of “mass incidents” at 87,000 during 2005, up more than 6 percent from 2004 and quadruple what it was a decade ago.³⁹ In December 2005 police opened fire on villagers opposing land confiscations in the southern village of Dongzhou, Guangdong province, killing at least three protesters.⁴⁰  In May 2006 China’s top environment watchdog, the State Environmental Protection Agency (SEPA), acknowledged that over 50,000 protests related to pollution had been recorded in 2005. ⁴¹  Pan Yue, deputy director of SEPA, stated that environmental problems had “become one of the main factors that affect national safety and social stability.”⁴² (Although state media have reported a decrease of the number of incidents during the first nine months of 2006, this decrease is most likely due to under-reporting by local officials. Anecdotal evidence points to heightening, rather than diminishing social conflicts.⁴³)

The central authorities have recognized the link between abuses, unrest, and the need to develop legal services for preventing the escalation of disputes. Premier Wen Jiabao acknowledged in January 2006 that “some localities are unlawfully occupying farmers’ land and not offering reasonable economic compensation and arrangements for livelihoods, and this is sparking mass incidents in the countryside.”⁴⁴ Two months later, in his annual report to the National People’s Congress, China’s parliament, he promised “effective legal services and legal aid so as to provide effective help to people who have difficulty filing lawsuits,” and a “strict, impartial, and civilized enforcement of the law.” ⁴⁵

Actual developments and practice, however, have contradicted these promises. Instead of enhancing lawyers’ ability to do their work, on March 20, 2006, the government imposed new limitations by adopting the Guiding Opinions on Handling Mass Cases. Weiquan lawyers became targeted in the name of preserving “social stability.” On April 11, 2006, Luo Gan, a senior member of the Politburo and the head of the party Central Committee’s Legal and Political Committee,⁴⁶ urged the adoption of “forceful measures … against those who, under the pretext of rights-protection (weiquan), carry out sabotage,… so as to protect national security and the political stability of society.”⁴⁷

Box: Mass incidents on the rise (April 2005-November 2006)

§ November 10, 2006 – Thousands of protesters rampage through a hospital in Sichuan province after the death of a young boy whose guardians could not afford to pay treatment fees. At least 10 people are injured in fighting with police.

§ November 8, 2006 – Thousands of villagers near Shunde, Guangdong, clash with riot police after barricading officials and foreign businessmen in a warehouse they said had been built on illegally seized land.

§ October 23-24, 2006 – Thousands of university students from Jiangxi province's Clothing Vocational College march through campus and riot after state media reports that school authorities had deceived new students about their eventual qualifications and issued fake diplomas.

§ August 20, 2006 – Villagers of Maoming, Guangdong province, detain a number of government officials in the course of a dispute about water tariffs. Police forces are dispatched and a dozen villagers are injured in the ensuing clash.

§ August 1, 2006 – Hundreds of villagers near Linhai municipality, Zhejiang province, clash with police over land seizures. Thirty villagers are reportedly injured.

§ July 29, 2006 – Christians in eastern China's Zhejiang province clash with police.  The violence occurs as the police tries to break up a 3,000-strong protest against the demolition of a church. Twenty people are injured, including four seriously.

§ July 27, 2006 – Around a thousand workers riot over working conditions at a factory producing toys for McDonald’s in Dongguan, Guangdong province.

§ June 2006 – Around a thousand policemen violently disperse a sit-in organized by villagers opposing the construction of a chemical plant in Guangxi. Four villagers are placed in criminal detention.

§ June 2006 – Thousands of students ransack their university in Zhengzhou, Hunan province, in a dispute over diplomas.

§ May 2006 – Thousands of residents of Loufeng township near Suzhou, Jiangsu province, protest over the conditions of their forced relocation. The police detain a dozen protesters.

§ January 2006 – Hundreds or thousands of protesters clash with police over inadequate compensation for farmland taken for industrial use in Panlong village, Sanjiao township, Guangdong province.

§ December 2005 – A dispute over the construction of an electricity generating plant and related property seizures culminates in a violent clash in Dongzhou village near Shanwei city, Guangdong province. Police open fire, killing at least three protesters.

§ September 2005 – Over a hundred workers at a shoe factory in Guangzhou, Guangdong province, battle police and smash vehicles while protesting over unpaid wages.

§ August 2005 – Police beat villagers protesting against pollution from a battery factory in Zhejiang province.

§ August 2005 – Unemployed residents of Daye, Hubei province, attack government offices and destroy cars after the police break up an earlier demonstration over an official plan to annex Daye to a larger city, Huangshi. Ten people are sentenced to prison terms ranging from one to five years for their involvement in the protests.

§ July 2005 – Residents of Taishi village near Guangzhou, capital of Guangdong province, submit a petition to remove their village chief for embezzling public funds. After one of their leaders is arrested, 1,500 villagers clash with 500 armed police.

§ July 2005 – Some 3,000 migrant workers at a Hong Kong-owned garment factory near Guangzhou riot over a pay dispute. A report of the incident published in the local press mentions that there are thousands of such “explosions” every year.

§ July 2005 – Farmers in Xinchang, 200 kilometers south of Shanghai, attack a pharmaceutical plant over pollution it emits.

§ June 2005 ­– About 150 kilometers southwest of Beijing, approximately 300 hired thugs attack a group of farmers who have camped on disputed land that the local government plans to use to build a power plant. The farmers protest the lack of proper compensation for their land. Six villagers are reportedly killed in the attack, which is captured on video by a protester and shown on Chinese websites. Higher governmental authorities sack the local party chief and mayor and return the farmland.

§ April 2005 – Some 20,000 peasants from several villages in Huashui township, Zhejiang province, who have been complaining for four years about industrial pollution from an industrial park that they claim has ruined their agricultural livelihood, fight with police. The factories are eventually shut down, but protest leaders are arrested.

Sources: Media reports; Social Unrest in China, Congressional Research Service, May 8, 2006.

In the following months the government’s hostility towards the weiquan movement was reflected in the arrest and conviction of three of its most outspoken members, Chen Guangcheng, Gao Zhisheng, and Guo Feixiong.  All three men had been providing legal advice to protesters and plaintiffs suing government authorities—Gao as a qualified lawyer, Chen and Guo as legal advisers (under Chinese law, it is not a necessary condition to be a qualified lawyer to be entrusted by a defendant, including in criminal trials).⁴⁸

Guo Feixiong

Guo Feixiong(also known as Yang Maodong, his real name) is best known for providing legal assistance to villagers in Taishi, Guangdong province, as they sought to remove the allegedly corrupt village leader from office. As a result of his involvement, he was detained on September 13, 2005, and held incommunicado until October 4, when his legal representatives Guo Yan and Gao Zhisheng were notified of his arrest on suspicion of “assembling crowds to disturb public order.” He was released without charge on December 27. In February 2006 he was detained again, by the Beijing Public Security.⁴⁹ In August he was formally arrested on suspicion of “running an illegal business.”⁵⁰ His wife told Agence France-Presse that she “refused to sign the arrest notice and told the police [her] husband was innocent."⁵¹

Chen Guangcheng

Chen Guangcheng, a self-taught rights advocate, was sentenced in August 2006 to four years and three months’ imprisonment for allegedly “damaging property and organizing a mob to disturb traffic” in August 2006. The initial trial was fraught with irregularities and an appellate court ordered a retrial, which took place in late November and where the original verdict was upheld.⁵²

In March 2005 Chen learned from villagers that officials in Linyi, a city in Shandong province, had subjected thousands of people trying to evade restrictive population control laws to midnight raids, beatings, late-term forced abortions, and compulsory sterilization.⁵³ In June 2005 he filed a lawsuit and then traveled to Beijing to discuss the case with legal scholars, lawyers, and foreign journalists. Soon after, the lawsuit was rejected.  On August 12, 2005, local officials imprisoned Chen and his immediate family in their home and shut off all outside communication. They were detained there for seven months (Chen managed to escape in September, but was apprehended in Beijing and returned to Linyi). On March 11, 2006, Yinan county police officers “disappeared” Chen for three months, officials acknowledging only on June 11 that he was formally detained in the Yinan County Detention Center.

On June 21 the Yinan County People’s Procuracy approved Chen’s arrest. That same day Chen’s lawyers, Li Jinsong and Zhang Lihui, were able to visit him, but from then on authorities escalated the pressure to deny access to defense witnesses and materials for all the lawyers and activists involved. On June 22 police officers took lawyer Li in for questioning. Unknown assailants beat three other lawyers defending villagers jailed for supporting Chen. When Li Jinsong and Li Subin, another member of Chen’s legal team, tried to visit Chen’s wife on June 23, they were stopped and beaten by guards. The following day, all the lawyers involved returned to Beijing. Li Jinsong and Li Subin tried returning to Shandong on June 27, only to be harassed again while the police stood by. Some 20 men overturned the lawyers’ car. Police took Li Jinsong in for questioning once again. ⁵⁴

On the eve of Chen’s trial, all three of his lawyers were detained by Yinan police. None of Chen's lawyers were allowed in the courtroom for the trial on August 24, 2006. Instead, authorities appointed their own public defender for Chen just before the trial began. The trial lasted just two hours and Chen was sentenced to four years and three months of imprisonment for “damaging property and organizing a mob to disturb traffic.”

In what was seen as a response to an international outcry, an appellate court on October 30 overturned the conviction and ordered a retrial. ⁵⁵  The retrial, on November 27, was equally mired by severe violation of due process. Chen’s three lawyers, Xu Zhiyong, Li Jinsong, and Teng Biao, were harassed on their arrival in Linyi the day before the trial by dozens of plainclothes agents who refused to identify themselves. ⁵⁶  A key witness who had admitted providing a false testimony against Chen under police duress and whom Chen’s lawyers intended to call at the trial was kidnapped by unidentified men, and two other defense witnesses were similarly taken away. Lawyer Teng Biao was detained for four hours by the police. The judge refused to adjourn the case despite the forced disappearances of the defense witnesses, prompting Chen’s lawyers at one point to storm out of the court in protest. On December 1, the court upheld the original verdict and sentence.⁵⁷

In April 2006, Time magazine named Chen one of its “100 people most influential in shaping our world.”⁵⁸

Gao Zhisheng

Gao Zhisheng, one of China’s foremost human rights lawyers, is being held incommunicado on charges of “inciting subversion.” He was arrested on August 15, 2006, and formally charged on September 15, although his family was only notified on October 12.

As the director of the Beijing-based Shengzhi Law Office, Gao has done pro bono work for forcibly evicted homeowners, members of the Falungong religious sect, underground Christians, fellow lawyers, and democracy activists. In November 2005 the operations of the Shengzhi Law Office were suspended by the Beijing Municipal Bureau of Justice for one year. One month later, Gao Zhisheng's license to practice law was revoked. He was then subjected to continuous surveillance and other forms of harassment and intimidation by the authorities.

His arrest came on the heels of a hunger strike he organized to protest violence against dissidents. Prosecutors charged him on September 15 with “inciting subversion,” a state security crime often used against political dissidents. The police have denied his lawyer contact with Gao on grounds that the case involves unspecified “state secrets.”⁵⁹

[35] The Letters and Visits system, colloquially called shangfang (“appealing to higher levels”), is a complaints system allowing citizens to report grievances to authorities, who are then supposed to instruct other government departments to resolve the problems. It is estimated that a staggering 10 million petitions were filed in 2004. According to the People’s Daily, “An official survey revealed that 40 percent of these complaints are about police, courts and prosecutors’ offices, 33 percent about government, 13 percent about corruption and 11 percent about injustices.” Other specific subjects often named in petitions include environmental problems, workplace complaints, and forced evictions. Human Rights Watch has documented these problems and how petitioners often suffer from systematic violence and ill-treatment. See Human Rights Watch, “We Could Disappear At Any Time”: Retaliation and Abuses Against Chinese Petitioners, vol. 17, no. 11(C), December 2005, http://hrw.org/reports/2005/china1205/index.htm. 

[36] See Kristin Jones, “China’s Hidden Unrest,” Committee to Protect Journalists, May 2006; Thomas Lum, “Social Unrest in China,” Congressional Research Service, May 8, 2006; Eva Pils, “Land Disputes, Rights Assertion, And Social Unrest in China: A Case from Sichuan,” Columbia Journal of Asia Law, Spring/Fall 2005, pp. 235-292; Joseph Kahn, “Legal Gadfly Bites Hard, and Beijing Slaps Him,” The New York Times, December 13, 2005.

[37] Supreme People’s Court of the People’s Republic of China, “Regulations on various problems regarding the hearing of cases of civil dispute arising in enterprise reforms,” effective January 1st, 2003, art. 3.

[38] See, for example, Jerome A. Cohen, “China’s Legal Reform at the Crossroad,” The Far Eastern Economic Review, March 2006, pp. 23-27. Cohen notes that “[i]n too many cases, plaintiffs with justifiable legal grievances are simply denied access to the courts by one means or another.”

[39] The Ministry of Public Security has referred interchangeably to “mass incidents” and “public order disturbances” for the 87,000 figure. Given the lack of a precise definition and the politically sensitive nature of social unrest in China, these statistics should be taken as indicating a trend rather than absolutes. PRC Ministry of Public Security Press Conference, “Press Release: Ministry of Public Security Report on the Trend of Social Order and Disaster in 2005,” January 20, 2006 [“公安部召开新闻发布会通报2005年全国社会治安形势暨火灾形势”, 2006-01-20], http://www.mps.gov.cn/cenweb/brjlCenweb/jsp/common/article.jsp?infoid=ABC00000000000001018 (accessed August 3, 2006); “Data show social unrest on the rise in China,” The Financial Times, January 19, 2006.

[40] “China: Dongzhou Killings Must Be Investigated,” Human Rights Watch news release, June 1, 2006, http://hrw.org/english/docs/2006/06/01/china13489.htm.

[41] “Environment issues addressed more urgently,” China Daily, May 4, 2006.

[42] Ibid.

[43] Richard McGregor, “Beijing reports decline in protests,” The Financial Times, November 8, 2006.

[44] “Chinese PM Warns on Rural Unrest,” BBC News Online, January 20, 2006, http://news.bbc.co.uk/2/hi/asia-pacific/4630820.stm (accessed January 21, 2006).

[45] “Text of Chinese premier’s government work report at NPC session,” BBC Monitoring Asia Pacific, March 5, 2006.

[46] Luo Gan is currently a member of the Politburo Standing Committee of the 16th CPC Central Committee. He is also a state councilor, a member of the Leading Party Group of the State Council and secretary of the CPC Political and Legislative Affairs Committee of the 16th CPC Central Committee.

[47] Luo Gan, “Bolstering the teaching of the concept of socialist rule by law: Conscientiously strengthening the political thinking of the political and legal ranks,” Seeking Truth, Issue No. 433, June 16, 2006 [罗干, “深入开展社会主义法治理念教育  切实加强政法队伍思想政治建设”, 求是, 2006年6月16日（总433期）], http://www.qsjournal.com.cn/qs/20060616/GB/qs^433^0^1.htm (accessed October 16, 2006).

[48] Article 32 of the Criminal Procedure Law allows “persons recommended by a public organization or the work unit the defendant belongs to, and their guardians, relatives and friends” to represent a defendant.

[49] Amnesty International, “China: Fear of torture and ill treatment: Yang Maodong (also known as Guo Feixiong) (m),” AI Index: ASA 17/008/2006, February 9, 2006.

[50] “Detained Rights Activist and Lawyer Formally Arrested,” South China Morning Post, October 3, 2006.

[51] “Chinese police arrest civil rights lawyer,” Agence France-Presse, October 2, 2006.

[52] "China abortion activist sentenced", BBC News Online, August 24, 2006, http://news.bbc.co.uk/1/hi/world/asia-pacific/5281440.stm (accessed November 23, 2006).

[53] “China: Release ‘Barefoot Lawyer,’” Human Rights Watch news release, July 19, 2006, http://hrw.org/english/docs/2006/07/18/china13765.htm.

[54] Ibid.  

[55] Joseph Kahn, “Rights advocate wins a retrial, a rarity in Chinese courts,” The New York Times, November 1, 2006

[56] Maureen Fan, “Rare Retrial Begins for Blind Chinese Legal Activist Proceedings Again Marked By Tumult, Attorneys Say,” The Washington Post, November 28, 2006.

[57] Maureen Fan, “Chinese Activist's Sentence Is Reaffirmed,” The Washington Post, December 1, 2006.

[58] "TIME 100: The People Who Shape Our World", Time, April 30, 2006.

[59] Joseph Kahn, “China Arrests Human Rights Lawyer Who Criticized State,” The New York Times, October 15, 2006.

V. The New Guiding Opinions

After a lawyer has accepted a mass case, he must… promptly report the situation to the relevant government departments.

—Section II of the Guiding Opinions

From the overall principles to the detailed content, everything is wrong in these Guiding Opinions.

—Zhang Sizhi, former vice-chair of the Beijing Lawyers Association

The Guiding Opinions of the All-China Lawyers Association on Lawyers Handling Mass Cases were adopted “on a trial basis” on March 20, 2006, by the Standing Committee of the ACLA.⁶⁰ They were not made public until April 15, when they were posted on the website of the ACLA. Administrative measures adopted on a trial basis are fully operative and generally constitute the first step towards more permanent statutes, which are often more constraining.⁶¹

The Guiding Opinions open with a preamble explaining the goal and basis of the regulations, followed by five sections covering the definition of mass cases and the general responsibilities of lawyers; the requirements for handling relationships with clients, judicial agencies, the government, the media, and the public; the requirements for the acceptance of mass cases by law firms; the duties of local lawyers associations; and legal liability. The Guiding Opinions recognize the positive role of lawyers for the legal system, noting that “[l]awyers who intervene in mass cases are helpful to the government, enterprises, and other opposing parties in their lawful handling of matters” and, when handling individual cases, “help promote judicial and legislative activities and lawful administration” by issuing “legal opinions and suggestions.”⁶²

Mass cases are defined as those “involving 10 or more plaintiffs” who have initiated a common lawsuit or a series of legal proceedings on a common matter.⁶³ The preamble refers specifically to issues of “land confiscation, forced eviction, relocation from reservoir areas, enterprise restructuring, environmental pollution and other aspects of the protection of the rights and benefits of rural residents.” ⁶⁴  These cases “usually involve complex social, economic and political factors, and have varied impacts on state and society that cannot be ignored.”⁶⁵

All but two of the provisions of the Guiding Opinions set forth new restrictions and additional duties for lawyers handling mass cases, so as to “regulate and guide” the work of lawyers handling these cases.⁶⁶ Section V states that lawyers are to abide by these Guiding Opinions “when taking on important sensitive cases.” The Guiding Opinions cover not only litigation (su song) but also other forms of professional services, such as providing advice for non-litigious (fei susong) resolutions such as mediation or conciliation or petitioning through the Letters and Visits (petition) system.  They impose new requirements for lawyers in their relations with plaintiffs, lawyers associations, justice bureaus, government departments, and the media. In effect, the Guiding Opinions limit the ability of lawyers to prosecute some of the most important kinds of cases regarding human rights in China today.

A central problem with the Guiding Opinions is the vagueness of the language contained in many key provisions, which opens the door to arbitrary interpretations by the authorities (terms such as “sensitive” or “major impact” cases and cases that have “adverse consequences,” or criteria such as “good political quality,” “interfering with the normal operations of the state agencies,” or a “great sense of social responsibility”). This is particularly disappointing in a document produced by a legal institution.

Two further provisions provide that local lawyers associations must help safeguard lawyers’ lawful rights⁶⁷ and that cases initiated before the issuing of the Guiding Opinions must be brought into conformity with the new requirements.⁶⁸ Below we set out in greater detail key provisions of the Guiding Opinions, and Human Rights Watch’s related concerns.

A. Tightening of control by the judicial bureaus and other governmental departments

The Guiding Opinions state that, after a lawyer has accepted a mass case, he or she must accept the “guidance and supervision” of the judicial bureau.⁶⁹ Lawyers must also “promptly and fully communicate” with the bureau, and “assist the judicial agency in ascertaining the facts.”⁷⁰ The exact extent of the “guidance and supervision” is not defined, which allows for arbitrary interpretation by the authorities.

The Ministry of Justice, an administrative organ under the State Council, oversees judicial bureaus and departments at the provincial and local levels. These judicial agencies are administrative entities rather than part of the court system.⁷¹ The authority wielded over the judicial system by the party’s Legal and Political Committees are such that they can easily instruct the judicial authorities to use the Guiding Opinions to bar lawyers from taking on sensitive cases that could result in exposure of government abuses.

By requiring lawyers to accept the instructions emanating from the local judicial bureaus, the Guiding Opinions further open the door to interference of unscrupulous local authorities. In practice, on account of the hierarchical structure of local governments, higher-level governmental departments and party committees can issue instructions to their subordinated judicial bureaus about cases in which the local government itself is the defendant. When the authorities tried to rein in Gao Zhisheng (before ultimately arresting him a few months later, see above), the Beijing Judicial Bureau handed him “a list of cases and clients that were off limits.”⁷²

This leaves the plaintiff seeking redress little chance of success. For example, lawyers representing rural residents displaced by a highway project would have to accept the “guidance” of the departments of the very authorities that had authorized the eviction in the first place. Many of the most acute protests in recent years have been triggered by local governments’ attempts to pay derisory compensation for taking over rural land, in the knowledge that farmers would have no effective way to contest the legality of the decision. In June 2006 an official from the Ministry of Land and Resources acknowledged that more than one million cases involving land-related irregularities had built up in the previous two years.⁷³

Even less politically sensitive initiatives that have been endorsed by the government, such as public interest litigation in consumer rights and environmental protection areas, could find themselves in jeopardy under the new Guiding Opinions.

           

B. Requiring lawyers to share confidential information with the authorities

Section II of the Guiding Opinions requires a lawyer to “promptly and fully communicate with the relevant justice bureau” about mass cases as well as actively pass information about the dispute “to the judicial agency,” and “assist … [that] agency in ascertaining the facts.” If lawyers discover problems that may “intensify” the dispute, or discover that the dispute may escalate, they must immediately report it to the judicial authorities.⁷⁴ Lawyers are also instructed to avoid the “distortion” of the details of the case or false testimonies that create a situation “where the popular mood becomes unstable.”⁷⁵If this is the case, the lawyer is obliged to “promptly report the situation to the relevant government departments.”⁷⁶

These provisions negate the principle of confidentiality between lawyer and client and quash the ability of plaintiffs to enjoy meaningful legal representation.  The contradiction is particularly acute in cases where one of the parties is precisely the authorities to which the lawyer must report: in many of the cases of local protests that have been documented, local governments not only refused to entertain the plaintiffs’ grievances, but also intimidated or retaliated against them.⁷⁷ Lawyers routinely complain that local governments are the most significant source of external interference in preventing access to justice.⁷⁸

C. Strengthening of controls exercised by the lawyers associations

The Guiding Opinions add a second layer of controls over individual lawyers and law firms by requiring that they communicate with and receive the supervision of the local lawyers association. Even though lawyers associations are already under the administrative supervision of the judicial bureaus, the Guiding Opinions establish specific requirements for mass cases that do not exist for other types of cases. When a lawyer accepts a mass case, he must immediately report the case to the local lawyers association.⁷⁹ A law firm retained for a mass case must also report it to the lawyers association to which the firm is subordinate.⁸⁰

The lawyers associations must report and “share information” on these cases with the judicial bureaus,⁸¹ and have the responsibility to “supervise, regulate, and safeguard” lawyers’ handling of mass cases.⁸² In mass cases that have or are expected to have a “major impact,” the associations are also required to promptly “communicate and coordinate” with the “relevant [governmental] bureaus.”⁸³

In practice, a lawyer involved in a case that the local authorities wish to keep out of public view would have to report developments that may lead to publicity or protests by informing the government of the intentions of his clients. For example, a lawyer representing villagers who have taken a polluting factory to court would have to alert the government authorities if he or she were to learn that they intended to hold a sit-in in front of its gates.

Lawyers associations have the authority to look into how a lawyer is handling a case and to put forward suggestions.⁸⁴ They can propose or remind each party’s lawyers to enter into mediation and negotiation, and to resolve conflict.⁸⁵ If asked by a law firm,⁸⁶ they can also issue directly an opinion to the “masses.”⁸⁷

D. Introduction of specific requirements for accepting cases

The Guiding Opinions introduce for law firms requirements supplementary to the Law on Lawyers regarding the steps by which they accept cases.  These serve as additional deterrents to lawyers who want to take up mass cases.

Section III states that the initial consultation with the plaintiffs must be conducted by a minimum of two lawyers of “good political quality” and “abundant experience.”⁸⁸ The decision to undertake a case must be decided by at least three partners.⁸⁹ The director of the law firm assumes “full responsibility for oversight and supervision.”⁹⁰ Law firms that decide to take a case must complete a comprehensive record of their acceptance of the case⁹¹ and promptly report it to the local lawyers association.⁹²

These requirements seek to hold firms explicitly responsible for the deeds of their lawyers when they handle mass cases. Requiring the full approval of at least three partners of the firm may be sufficient in many cases to dissuade lawyers from engaging in such cases by spreading the responsibility—and therefore the consequences—of taking up mass cases from individual lawyers to groups of partners.

The provision requiring lawyers to be of “good political quality” places political loyalty to the CPC over professional responsibility or the right to counsel. In the Chinese political lexicon, the requirement to be of “good political quality” is understood as compliance with party directives. The CPC relies on lawyers who are themselves party members to form the backbone of the legal profession. One of the roles of the judicial bureaus in charge of lawyers is to organize political indoctrination sessions for lawyers. In some localities, attendance at these meetings is compulsory for the renewal of law licenses.

E. Greater restrictions on working with petitioners

Under article 41 of the Chinese constitution, citizens have the right to petition any state organs for violation of the law or dereliction of duty. Millions of petitions are filed every year, and thousands of people travel to Beijing to petition the central authorities when they are unable to obtain redress at the local level.

Two clauses of the Guiding Opinions pertain to the provision of legal services to plaintiffs who are petitioning through the Letters and Visits system. The Guiding Opinions prohibit lawyers from “instigating” and “participating” in petitioning activities with or on behalf of their clients.⁹³  This prohibition is a further curtailment of their independence and a violation of both their clients’ and their own constitutional rights to petition.

Despite its abysmally low rate of success, collective petitioning (jiti shangfang) constitutes a way for citizens sharing the same grievance to organize, publicize, and seek the intervention of higher authorities to intervene in their cases, and is often conducted in conjunction with ongoing legal processes and various forms of protests.⁹⁴  As such, it is seen by the authorities as a potential factor in, or indicator of, social unrest.⁹⁵  In recent years a number of prominent lawyers and legal experts have helped protesters draft and circulate petitions, including to media organs and government departments.⁹⁶

In 2005 the government also launched a campaign to “resolve” petitioners’ grievances that in some cases involve the assistance of local lawyers. Yet in these instances the Guiding Opinions now stipulate that lawyers must “persuade their clients not to take their petitions to higher levels or to organize mass petitions.”⁹⁷ Instead, they instruct lawyers to discourage collective or higher-level petitioning.

The absence of petitions therefore becomes a criterion of the “successful” resolution of a mass case in the eyes of the authorities. “When 3,000 households were evicted… to make way for the Olympics village project,” an article published in the People’s Daily exemplified, “not one person petitioned.”

The chief factor was that lawyers were involved early in the demolition and relocation process and assisted the government departments in reaching settlements. This is an example of lawyers participating successfully in the resolution of a mass case.⁹⁸

The requirement that lawyers dissuade their clients to exercise their constitutional right to petition is clear interference with the duty of the members of the legal profession to represent their clients.

F. Discouraging contacts with media and foreign organizations

The Guiding Opinions warn lawyers to restrict contacts with the media. Lawyers must “be cautious in their commentary” and avoid “stirring up” news.⁹⁹  They must also “exercise caution” in their contacts with overseas organizations and media.¹⁰⁰

The role of the media in publicizing cases, particularly cases of manifest injustice, has grown significantly with the spread of the Internet. Faced with powerful local authorities who often are able to prevent legal challenges to their decisions, many lawyers try to generate pressure through the media.¹⁰¹ Weiquan lawyers and law academics have also become a primary source of information about protracted disputes and unrest incidents. It is characteristic of the weiquan movement that it often involves coordination between local activists, lawyers and legal experts, and investigative journalists.¹⁰²

Although the Guiding Opinions do not prohibit lawyers from talking to the media, they nevertheless specify that they should “be careful,” “exercise caution,” and avoid “stirring up news,” without defining these terms or clearly stating the sanctions for violations.¹⁰³ This suggests that a lawyer who actively mobilized the media on cases or events that the government considers an embarrassment would be liable to sanctions. In subsequent comments after the promulgation of the Guiding Opinions, official media have denounced lawyers who “blacken the country” by disclosing or commenting on mass cases.¹⁰⁴ Suggesting that lawyers exercise caution in talking to “foreign organizations” further curtails their independence.  Foreign reporters have also been subjected to state harassment while covering rural protests.

G. Requiring lawyers to take cases based on their possible effect on “stability”

The Guiding Opinions state that “lawyers must … safeguard the country’s stability”¹⁰⁵ and that “the correct handling of [mass cases] is essential to the successful construction of a socialist harmonious society.”¹⁰⁶

The Chinese government regularly invokes the specter of instability as grounds for curtailing basic rights. The term stability signals official concern about both law and order and the nonappearance of potential challenges to the rule of the CPC. The slogan “stability overwhelms everything” (wending yadao yiqie), a formula coined by Deng Xiaoping, remains a basic tenet of party ideology. It refers to the idea that all values and goals must yield to the primary goal of maintaining stability.

Appealing to “social stability” is the most common justification by the government for conducting politically motivated repression against perceived dissenters or critics. It often cites the “adverse consequences” of news stories for “social stability” as a justification for censoring media reports about social unrest or punishing news outlets and journalists for reporting on them.¹⁰⁷ The criminal charge of “disrupting social order” has repeatedly been used to crush any perceived dissent or opposition to the party and the state, or when citizens seek to exercise their fundamental rights and freedoms. The cover-up of public health crises (such as the SARS—“Severe Acute Respiratory Syndrome”—epidemic in 2003)¹⁰⁸ or industrial accidents (such as the chemical spill in the Songhua river in November 2005)¹⁰⁹have also been justified by the need to preserve “social stability.”

H. Intimidating sanctions

Lawyers who contravene the Guiding Opinions, causing “adverse consequences,” are liable to disciplinary sanctions from their lawyers association or from the judicial bureaus, as provided by the Law on Lawyers.¹¹⁰ The sanctions range from warnings to revocation of license.¹¹¹

However, the Guiding Opinions do not define in any way what “adverse consequences” are, making decisions about what is permitted inherently subjective and arbitrary. Given that the preamble to the Guiding Opinions warns of “varied impact” on “state and society,” these terms imply that lawyers can be held  responsible for clients’ protests, sit-ins, demonstrations, or other collective actions, which probably fit into the government’s definition of “adverse consequences” on social order.

Lawyers trying to publicize mass cases through the media are liable to sanctions.

[60] Guiding Opinions of the All-China Lawyers Association on Lawyers Handling Mass Cases, adopted “on a trial basis” on March 20, 2006, by the Standing committee of the ACLA (“Guiding Opinions”). [中华全国律师协会关于律师办理群体性案件指导意见, 2006年3月20日 常务理事会通过并试行.]

[61] Jianfu Chen, “The Development and Conception of Administrative Law in the PRC,” Law in Context, 16(2), 1998, pp. 72-105.

[62] Guiding Opinions, Section 1, sub-section 1. (The numbering and bulleting format of the Guiding Opinion is not consistent throughout its five sections. For the sake of clarity paragraphs numbered with Chinese numerals are referred to here as “sub-sections” and those numbered with Arabic numerals as “points.”)

[63] Ibid., Section 1, sub-section 1.

[64] Ibid., Preamble.

[65] Ibid., Preamble.

[66] Ibid., Preamble.

[67] Guiding Opinions, Section IV, points 4 and 5.

[68] Ibid., Section V.

[69] Ibid., Section I, sub-section 3.

[70] Ibid., Section II, “Relations with judicial agencies.”

[71] See Randall Peerenboom, “Lawyers in China: Obstacles to Independence and the Defense of Rights,” Lawyers Committee for Human Rights, March 1998.

[72] Joseph Kahn, “Lawyer takes on China's 'unwinnable' cases,” The New York Times, December 12, 2005.

[73] “Local Governments Linked to Most Serious Cases of Using the Land Illegaly,” Legal Daily, June 6, 2006. [“严重土地违法多与地方政府有关,” 法制日报, 2006-06-06.]  A survey of 15 cities carried by the ministry indicated at least 60 percent of the land developed in metropolitan areas since September 2004 had either been illegally obtained or used, while in other cases the proportion was as high as 90 per cent.

[74] Guiding Opinions, Section II, “Relations with government.”

[75] Ibid., Section II, “Relations with the client.”

[76] Ibid, Section II. “Relations with government.” The Guiding Opinions leave unclear what should be considered as the “relevant” government departments, but they are most likely the departments that have jurisdiction over the issue at hand, such as the land management bureau in the case of a land dispute, or the tax bureau for a dispute over abusive taxation.

[77] See, for example, Eva Pils, “Land Disputes, Rights Assertion, And Social Unrest in China: A Case from Sichuan,” Columbia Journal of Asia Law, Spring/Fall 2005, pp. 235-292.

[78] See Ye Qing and Gu Yuejin, eds., Study of the Lawyers System in China (Shanghai: Shanghai Academy of Social Sciences Press, 2005). [叶青，顾跃进（主编），中国律师制度研究，上海：上海社会科学出版社，2005.]

[79] Guiding Opinions, Section III, point 1.

[80] Ibid., Section III, point 1.

[81] Ibid., Section IV, point 7.

[82] Ibid., Section I, sub-section 3.

[83] Ibid., Section IV, point 3.

[84] Ibid., Section IV, point 1.

[85] Ibid., Section IV, point 6.

[86] Ibid., Section IV, point 6.

[87] Ibid., Section IV, point 3.

[88] Ibid., Section III, point 3.

[89] No provision is made for firms with fewer than three partners. Since joining a law firm is an absolute requirement for lawyers to practice (article 23 of the Law on Lawyers), one- or two-person firms are very uncommon. National People’s Congress of the PRC, Law of the People’s Republic of China on Lawyers (Revised 2001), adopted December 29, 2001, effective January 1, 2002.

[90] Guiding Opinions, Section III, point 2.

[91] Ibid., Section III, point 3.

[92] Ibid., Section III, point 1.

[93] Ibid., Section II, “Relations with the client.”

[94] A recent study found that only three of two thousand petitioners surveyed had their problems resolved. Human Rights Watch, “We Could Disappear At Any Time.”

[95] In recent years, the number of petitions across the country has skyrocketed, prompting the authorities to enact new regulations in 2005 that aim at containing them at the local level. Petitioners often face persecution and violence, which largely go unsanctioned by the authorities. See Human Rights Watch, “We Could Disappear At Any Time.”

[96] See, for example, Yu Meisun, “The Diary of a Peasant Advocate,” China Rights Forum, No 3, 2004, pp. 61-67.

[97] Guiding Opinions, Section III, point 4.

[98] “In Solving Mass Cases, the Role of Lawyers Cannot be Ignored,” People’s Daily Online, June 20, 2006. [“处理群体事件, 律师作用不可忽视”, 人民网，2006-06-20], reproduced at http://opinion.people.com.cn/GB/40604/4496965.html (accessed December 6, 2006).

[99] Guiding Opinions, Section II, “Relations with the media.”

[100] Ibid., Section II, “Relations with the media.”

[101] For a general discussion of the relationship between the media and the legal system see Benjamin L. Liebman, “Watchdog or Demagogue? The Media in the Chinese Legal System,” Columbia Law Review, 105:1, January 2005, pp. 1- 157. Liebman reports that “[l]awyers also comment that maintaining good relations with the media is important, particularly when representing weak or disadvantaged clients who are in disputes with locally influential persons or individuals” (p. 93).

[102] A prominent example was the Tangshan case, where law activists Yu Meisun and Li Baiguang partnered with the investigative journalist Zhao Yan—who was working at the time for the liberal journal China Reform—to expose the plight of relocated residents fighting for compensation. Yu Meisun has also recounted how he tried to get an influential program on China’s Central Television (CCTV) to cover the cases of villagers involved in a land dispute. See Eva Pils, “Land Disputes, Rights Assertion, And Social Unrest in China: A Case from Sichuan,” Columbia Journal of Asia Law, Spring/Fall 2005, pp. 235-292.

[103] Guiding Opinions, Section II, “Relations with the media.”

[104] “Lawyers Handling Mass Cases Have Regulations,” Legal Daily, May 24, 2005 [“律师办理群体性案件有章程”, 法制日报, 2006-05-24], http://www.legaldaily.com.cn/bm/2006-05/24/content_320333.htm.

[105] Guiding Opinions, Section I, sub-section 2.

[106] Ibid., Preamble.

[107] See, for example, “China: Journalists imprisoned after reporting on land disputes,” Committee to Protect Journalists, January 19, 2006; Kristin Jones, “China’s Hidden Unrest,” Committee to Protect Journalists, May 2006.

[108] Brad Adams (Human Rights Watch), “China’s Other Health Cover-up,” commentary, The Asian Wall Street Journal, June 12, 2003, http://hrw.org/english/docs/2003/06/12/china12938.htm.

[109] Beijing waited until 10 days after the incident to tell the public about a factory explosion that dumped 100 tons of benzene and other chemicals into northeastern China’s Songhua river. “China’s PR problem,” Los Angeles Times, December 13, 2005.

[110] Guiding Opinions, Section 4, point 8.

[111] The detailed modalities of sanctions applicable to lawyers are detailed in regulations issued by the Ministry of Justice. See Ministry of Justice, Methods for Punishing Lawyers and Law Firms Illegalities, March 19, 2004. [“司法部关于律师和法律事务所违法行为处罚办法”, 2004年3月19日.]

VI. Promulgation of Local Versions of the Guiding Opinions

The adoption of the ACLA Guiding Opinions immediately prompted the promulgation of comparable regulations at the local level in several municipalities and provinces, such as Henan, Guangdong, Shenyang, Shenzhen, and Hangzhou. Although some of these regulations have not officially been made public, media reports have disclosed all regulations requiring lawyers to seek instructions and report to local judicial bureaus when handling “sensitive” or “mass” cases.

Many of the local regulations appear considerably more explicit and restrictive than the Guiding Opinions. For instance, whereas the latter instruct lawyers to “exercise caution” in their dealings with foreign organizations, local variants state that “without having received approval from the relevant departments, [lawyers] must not accept any interview with foreign media.”¹¹²   Similarly, whereas the Guiding Opinions mandate that lawyers uphold a “great sense of social responsibility,” a local variation instructs that “in cases that have a political influence … the lawyer handling the case must respect political and propaganda discipline.”¹¹³ Local regulations also widen the scope of mass cases considered “sensitive” by including catch-all clauses such as “important cases designated by leadership organs”¹¹⁴—that is, the CPC—or cases “that have extensive influence in this province or for all the country,” “that attract a high degree of media attention, or that have a big influence on the actions of the government.”¹¹⁵

Local regulations also make the criteria for imposing penalties on lawyers more explicit:  “[I]f a lawyer violates the political discipline, the propaganda discipline or causes problems in a mass case incident, he must be disciplined … and receive a suspension penalty.”¹¹⁶

Henan province

On March 18, 2006, as the Guiding Opinions awaited promulgation, the Henan Judicial Bureau issued trial regulations on “Strengthening the Supervision and Guidance for Lawyers’ Representation in Important and Sensitive Cases and Mass Cases.”¹¹⁷ The regulations mandate that lawyers report to judicial bureaus when handling “important, mass, or sensitive cases.” These three categories include cases that affect the “government’s image,” criminal cases involving high-level cadres, and “cases involving collective interests that can reach 20 people or more.”¹¹⁸

The regulations instruct judicial bureaus to “strengthen their supervision” of lawyers, and “handle these cases with a high degree of political responsibility.”¹¹⁹ The judicial bureaus are required to prevent lawyers handling sensitive cases from “aggravating a situation,” or “using domestic or international media to inflame public opinion”; to prevent the general public being “incited to oppose the government,” or to “create problems through mass cases”; and to prevent the “use of proxy cases to attack the party or the judicial system.”¹²⁰

Lawyers handling “important, sensitive, or mass cases” must submit to the same requirements detailed in the national Guiding Opinions, such as reporting and informing judicial bureaus and government departments and accepting their instructions. The Henan regulations also state that lawyers associations in the province will organize trainings on how to handle the Guiding Opinions according to “political discipline” demands.

Shenyang municipality

In April 2006, a month after the ACLA adopted the Guiding Opinions, the judicial bureau of Shenyang municipality, Liaoning province, issued regulations regarding the activities of lawyers in “important, difficult, and sensitive cases.”¹²¹ The Shenyang regulations established procedures for seeking instructions and submitting reports to the judicial bureau so as to “comprehensively advance the role of lawyers in protecting social order and building a harmonious society.”¹²²The regulations went beyond what the Guiding Opinions mandate by imposing restrictions not just on mass cases but on the broadly defined “sensitive” cases.

Shenzhen municipality

In July 2006 the Shenzhen Municipal Judicial Bureau issued its “Provisional Regulations on Lawyers in Handling Sensitive and Mass Cases.”¹²³ The regulations impose similar requirements as the Guiding Opinions on lawyers handling cases “that can easily lead to social contradictions … or influence social stability,” such as “violations of people’s interests by government departments.”¹²⁴ Mass cases are defined as cases that can “influence the relation between the party and the masses … such as disputes about land compensation, forced demolitions and evictions, enterprise restructuring, workers’ layoffs, illegal fundraising, elections at the grassroots level, and unpaid wages.”¹²⁵ In addition to reporting within three days of accepting sensitive or mass cases, lawyers must not “use the media to bring pressure to bear on government bureaus or judicial organs.”¹²⁶

Lawyers have reported similar regulations for Hangzhou municipality and Guangdong province, although it is unknown whether they were issued before or after the ACLA regulations.¹²⁷ They similarly instruct lawyers to report to the judicial authorities when they take mass or “sensitive” cases.

* * *

In Henan province and Shenyang municipality the enactment of new regulations was accompanied by the organization of meetings with the judicial bureaus to convey the new requirements to lawyers. Such meetings, while a typical means of disseminating information about new laws, underscore the emphasis the government is placing on the issue.  In Henan province, on April 19, a “Work conference on strengthening the establishment of lawyers ranks,” presided over by the party secretary and the head of the Judicial Bureau, was held in the provincial capital Zhengzhou to “analyze and study the current state of affairs and problems that lawyers [in Henan] face, and strengthen their sense of professional responsibility.”¹²⁸ In Shenyang, a similar conference was held on April 14. The Shenyang Judicial Bureau reportedly “established the system for reporting important, difficult and sensitive cases… in order to realize the unification of legal, social and political outcomes.”¹²⁹

The promulgation of the national ACLA Guiding Opinions and the adoption of similar or broader regulations at the local level reflect a deliberate attempt by the authorities to respond to the increase in public protests by restricting access to legal and media channels through which protesters attempt to assert their rights. While it remains to be seen whether, as many Chinese legal experts predict, the government’s strategy will ultimately lead to an escalation of protests and violence, these new regulations reflect the fragility of the CPC’s commitment to the rule of law when Chinese citizens band together to air their grievances. The development of such limitations has also led to fears that local governments would be able to further extend and legitimize these restrictions to the courts, instructing them not to accept certain cases. 

[112] Shenzhen Municipality Judicial Bureau, Provisional Regulation on Lawyers Handling Sensitive and Mass Cases, June 29, 2006 [深圳市司法局: “关于律师代理群体性敏感案(事)件管理的暂行规定”2006-06-29], http://www.szlawyers.com/ShowDetail.asp?ArticleId=2346 (accessed October 30, 2006), art. 7, point 2.

[113] Henan Provincial Judicial Bureau, Trial Opinion on Strengthening the Supervision and Guidance for Lawyers’ Representation in Important and Sensitive Cases and Mass Cases, March 18, 2006 [“河南司法厅关于加强对律师办理重大、敏感、群体性案件指导监督的意见, (试行)” 2006-04-18], http://www.hnlawyer.org/show.aspx?id=2482 (accessed July 13, 2006), Section III, sub-section 1, point 2.

[114] Shenzhen Municipality Judicial Bureau, Provisional Regulation on Lawyers Handling Sensitive and Mass Cases, June 29, 2006 [深圳市司法局: “关于律师代理群体性敏感案(事)件管理的暂行规定” 2006-06-29], art. 2, point 8.

[115] Henan Provincial Judicial Bureau, Trial Opinion on Strengthening the Supervision and Guidance for Lawyers’ Representation in Important and Sensitive Cases and Mass Cases, March 18, 2006 [“河南司法厅关于加强对律师办理重大、敏感、群体性案件指导监督的意见, (试行)” 2006-04-18], Section I, sub-section 1.

[116] Ibid., Section III, subsection 1, point 4.

[117] Ibid.

[118] Ibid., Section I, sub-section 1.

[119] Ibid., Section I.

[120] Ibid., Section I, sub-section 3.

[121] Judicial Bureau of Shenyang Municipality, Liaoning Province, Several Opinions on the Instruction and Reports of Shenyang Lawyers in Charge of Important, Difficult, and Sensitive Cases, issued April 19, 2006. [辽宁省沈阳市司法局: “沈阳市律师承办重大疑难敏感案件请示报告的若干意见”2006-04-19 发起.]

[122] “Shenyang Lawyers Accepting Sensitive Cases Must Ask for Instructions,” website of the Ministry of Justice, April 19, 2006 [“沈阳律师承办敏感案件须请示”, www.legalinfo.gov.cn, 2006-04-19], http://www.legalinfo.gov.cn/moj/lsgzgzzds/2006-04/20/content_3037 (accessed May 23, 2006).

[123] Shenzhen Municipality Judicial Bureau, Provisional Regulation on Lawyers Handling Sensitive and Mass Cases, June 29, 2006 [深圳市司法局: “关于律师代理群体性敏感案(事)件管理的暂行规定”, 2006-06-29], http://www.szlawyers.com/ShowDetail.asp?ArticleId=2346 (accessed October 30, 2006).

[124] Ibid., art. 2, point 9.

[125] Ibid., art. 2, point 4.

[126] Ibid., art. 7, point 2.

[127] “Rights Protection Lawyers Restrained,” Ming Pao (Hong Kong), May 18, 2006. [“维权律师被套紧箍咒”, 明报（香港), 2006-05-18.]

[128] “The Justice Bureau of Zhengzhou Municipality Convenes a Work Conference on Strengthening Lawyers Ranks,” article posted on the website of the Zhengzhou Lawyers Association, April 19, 2006 [“郑州市司法局召开加强律师队伍建设工作会议”, 郑州律师网, 2006-04-19], http://www.zzlawyer.org/show.aspx?id=1265 (accessed May 26, 2006).

[129] “The Judicial Bureau of Shenyang Municipality Takes 5 Measures to Advance and Strengthen the Building of Lawyers Ranks,” website of the Judicial Bureau of Shenyang Municipality, April 19, 2006 [“沈阳市司法局采取五项举措推进和加强律师队伍建设”, 中国沈阳普法网，2006-04-14], http://www.sypf.com/fzxw/sfdt/086.htm (accessed June 30, 2006).

VII. Lawyers’ Reactions to the New Restrictions and the Government’s Response

The Guiding Opinions have attracted strong public denunciation… They are a step back for lawyers and a disgrace for the entire legal profession.

—Posting on a bulletin board by a lawyer from Henan province

The publication of the Guiding Opinions has generated considerable disquiet within the Chinese legal community. Lawyers and legal experts have expressed concerns about what they see as warnings against taking up mass cases, efforts to curtail their independence, and a worrying indication that the government intends to roll back hard-earned improvements in their status made since the 1980s.

At the time the Guiding Opinions were promulgated, the debate was allowed virtually no room in official media.  One significant exception to the general media silence on the issue was the publication of an extremely critical article in the China Economic Times, one month after the Opinions appeared on the ACLA website.¹³⁰  The article was entitled “In the End, Should Lawyers ‘Follow the Law’ or ‘Listen to Government Departments’?” and strongly criticized the Guiding Opinions, depicting them as a setback for the legal profession. A second critical article appeared a week later in the Oriental Morning Post, focusing on the threat to the professional independence of lawyers.¹³¹. These articles were widely circulated and commented upon on Internet legal forums, but the fierce reaction of critics was not directly reported in China’s official media.  On May 24, however, the Legal Daily, a publication operated by the Ministry of Justice, published an unusual article defending the Guiding Opinions, acknowledging that they had “attracted the attention of the public and a large number of lawyers,” while criticizing the “incorrect and biased understanding of the provisions” of those who saw the Guiding Opinions as a curb on lawyers (see also below).¹³²

The absence of independent lawyers’ organizations, which could speak out forcefully in defense of lawyers, and the tight constraints on public debate in China, meant that most of the critical debate on and comment against the Guiding Opinions has been on specialized Internet forums. (The ACLA and many local lawyers associations maintain electronic bulletin boards and forums, and there are thousands of legal websites across China that allow users to post comments. Some of the electronic bulletin boards are restricted to licensed lawyers who must register in order to access or post comments.) Lawyers’ comments clearly reflect that they view the Guiding Opinions as a rollback of their independence. They also stress that the Guiding Opinions will reinforce the impunity of local governments and officials who commit abuses—having authority over the local government’s judicial bureaus, local power-holders can order them to instruct lawyers in a way that makes the local government virtually immune from litigation. Party leaders have also undisputed authority over the local judicial bureaus through the Political and Legal Committee of the CPC, which statutorily “leads” their work. Lawyers also raise a range of other concerns, including how these Guiding Opinions reflect on the lack of independence of the ACLA, the consequences of the restrictions on contact with the media, the legal basis for the Guiding Opinions, and whether the regulations were targeting the weiquan rights protection movement.

Although academics are now mostly free to discuss any legal topic, publishing in newspapers or journals remains tightly controlled and some outspoken advocates of legal reforms have been blacklisted or temporarily suspended from teaching.¹³³ It is likely that scholarly comment will appear in professional journals in the future, but Human Rights Watch is not aware of any at the time of publication of this report. Organization of academic conferences requires the approval of the authorities of the host research institution, a process that allows topics that are judged politically sensitive to be weeded out. It is therefore hardly surprising that the most significant gathering of legal experts opposing the new Guiding Opinions took place not in a law school or research institution, but in a Beijing bookshop.¹³⁴ On June 14, prominent members of the legal community held a seminar in a Beijing bookshop attended by law professors, lawyers, and law activists on the new Guiding Opinions, in an attempt to organize a response to these new threats to the lawyers’ profession and the legal system. Despite the participation of some of the most well-known legal reformers and lawyers, including the former vice-chair of the Beijing Lawyers Association, as well as the very critical tone of the meeting, the event got no mention in the official press. (The seminar is discussed in greater detail below.)

A. Lawyers’ initial reactions

The initial reactions posted on the Internet forum of the ACLA website and on other local lawyers associations’ websites were unambiguous: “I just glanced at the regulations: I feel a great danger for lawyers,” read a posting on the ACLA’s bulletin board.¹³⁵ Dozens of similar postings appeared on local lawyers associations’ websites, legal electronic lists, blogs, and general discussion forums.

1. A blow to the legal profession

Lawyers generally perceived the Guiding Opinions’ stringent restrictions on the handling of mass cases as a warning from the government to dissuade them from representing these “sensitive” cases. One lawyer succinctly commented, “These Guiding Opinions give a message to lawyers: don’t take up mass cases.”¹³⁶

Indeed, the chilling effect was rapidly confirmed by other lawyers. A participant in the ACLA forum on the new regulations indicated for example that his law firm had conducted a meeting to dissuade its employees and partners from engaging in the activities listed by the new Guiding Opinions on mass cases:  

Two days ago the law firm I work for held a meeting to convey the spirit [of these Guiding Opinions]. As a result, lawyers are only allowed to speak about law, and must not incite petitioning activities, disturbances, sit-ins, and expose cases to the media. All this is not allowed … otherwise, you’re done.¹³⁷

The Guiding Opinions became ironically nicknamed “the incantation of the golden hoop”—a reference to the famous classical Chinese novel Pilgrimage to the West, where the cunning Monkey King (Sun Wukong) wears a golden hoop around his head. When his master recites the incantation, the hoop tightens, causing him insufferable pain.¹³⁸ “In substance [the Guiding Opinions] are putting another golden hoop spell on lawyers … This will tie down lawyers,”wrote one commentator, in one of many similar postings. ¹³⁹

Legal activists such as Xu Zhiyong, a law lecturer at Beijing University who has often been involved in defending mass cases, and Pu Zhiqiang, a lawyer specializing in media defamation who has represented politically sensitive cases, also voiced their concerns. Pu Zhiqiang told the Financial Times that the Guiding Opinons would “make lawyers fearful of accepting lawsuits by disadvantaged groups”—farmers and those forcibly evicted, for example—while  Xu Zhiyong told the South China Morning Post that the new obligation to report these cases “may attract problems and pressure” for lawyers.¹⁴⁰

Lawyers pointed out that, by virtue of being under the authority of the local government, the judicial bureaus’ most likely course of action when confronted with a case involving protesters would be to side with the government and restrict the activities of lawyers:

[I]n these mass cases, the so-called “relevant departments” are themselves frequently one of the parties. These kinds of requirements for lawyers [to seek instructions from these departments] are really the biggest perversion of the spirit of the law. ¹⁴¹

Another commentator echoed the widely shared perception that the new restrictions would make lawyers irrelevant in the eyes of citizens seeking redress:  

If a lawyer has accepted a case of forced eviction, forced resettlement, or dismissal, he must provide legal aid to his clients. But according to the requirements of the ACLA, he must also closely collaborate with “the relevant government departments,” “report the circumstances,” and accept “guidance and supervision of the judicial administrative organs.” Can this kind of lawyer still obtain the trust of the plaintiff(s)?¹⁴²

A commentator on the ACLA’s forum stressed that, in many cases, the power of the national and of local governments was largely unconstrained by legality:

In a country governed according to law, this kind of problem [listening to government departments or following the law] doesn’t present itself. But in China, in reality power is stronger than the law. A lawyer can only make choices according to his own circumstances and the local circumstances.¹⁴³

In other words, a lawyer relies very much on having good relations with gongjianfa (police, procuracy, and courts) officials, whose cooperation he needs to carry out his professional duties.  Lawyers privately confided that gongjianfa officials often try to impress on lawyers that the claims of their clients are groundless or unreasonable and that in view of the larger imperative of maintaining social stability they should reject the case or refrain from bringing a lawsuit in court.

2. Criticizing the ACLA

In addition to the alarm generated by the Guiding Opinions themselves, commentators also voiced frustrations about the role of the All-China Lawyers Association. Rather than defending the independence of the legal profession, the ACLA had in fact itself helped inflict the damage.

Some of the points made by the ACLA’s Guiding Opinions are valid… of course we should be concerned with the resolution of this type of cases. But because the ACLA is a self-governing body, its foremost concern should remain the independence of the lawyers’ profession.¹⁴⁴

Another lawyer expressed his disappointment in these sarcastic terms:

In truth this shows that “governing the country according to law” in reality is nothing but a slogan…. The ACLA limits itself to protect the realization of a “harmonious society,” avoids putting itself in trouble, it’s hopeless … We should thank the ACLA for this, our ACLA is really great!¹⁴⁵

Other commentators defended the ACLA, pointing out that because it is statutorily under the “guidance and supervision” of the Ministry of Justice, it had no choice but to carry out the instructions:

For a long time in practice the lawyers association at all levels has not been able to avoid the coloration of being “half-official.” Even though they are technically a social organization, the head and the secretary are chosen or controlled by the justice administrative organs… When lawyers most need the organization to fight for their rights and benefits, the lawyers association is often silent. ¹⁴⁶

Members of the ACLA have long advocated for a more vigorous role for the association in defending lawyers. In 1998 the ACLA established a Committee for the Protection of Lawyers’ Legal Rights and Interests, although it still has very little sway and has been silent on the issue of the Guiding Opinions.

3. Pledging not to be intimidated

The most significant response to date to the Guiding Opinions from the legal community came from the seminar organized on June 14, 2006, by prominent legal figures in Beijing, and chaired by the former vice-chair of the Beijing Lawyers Association, Zhang Sizhi. The small-scale seminar brought together law professors, criminal lawyers and weiquan activists. Among them were prominent legal experts, including He Weifang (Peking University), Zhang Zhiming (People’s University), He Bing (Chinese Politics and Law University), and Mo Shaoping, a criminal lawyer who has defended many dissidents and politically sensitive cases in the past (including the case of the New York Times researcher Zhao Yan).

Zhang Sizhi (who has often been referred to as the “conscience of the Chinese legal community” for his historical role in promoting the legal profession)¹⁴⁷ reportedly termed the Guiding Opinions “a disaster” that was “sending back the legal profession to the situation of the 1980s,”¹⁴⁸ when lawyers could only be employed by the state.¹⁴⁹ “From the overall principles to the detailed content, everything is wrong in these Guiding Opinions,” the Hong Kong newspaper Ming Pao reported him as saying.¹⁵⁰

Corroborating the general view that the Guiding Opinions were designed to intimidate lawyers against taking mass cases, Zhang urged lawyers to continue to take up these cases, even if it landed them in trouble with the authorities: “I am ready to shield you with my own body. I am already almost 80 years old, but you have long days before you, [and] China will need your contribution.”¹⁵¹ 

A renowned legal scholar, He Bing contested the legality of measures restraining lawyers handling mass cases, which overstepped the Charter of the ACLA and the Law on Lawyers. Fu Dalin, a professor from Xi’an Political and Legal University, had made a similar point in a posting on the forum of the ACLA: even though the Law on Lawyers stipulates that the lawyers are “supervised” by the justice departments, such supervision was not intended to allow intervention in specific cases:

This supervision [by the judicial bureaus] must be a lawful supervision and guidance for lawyers who violate the law in their profession, and must be a macro-guidance within the law, it cannot on any pretext become a basis for interfering in a particular case that is being lawfully handled by a lawyer.¹⁵²

Other participants, such as He Weifang, criticized the Guiding Opinions as an attempt by the central authorities to cover up protests and government-committed abuses. He Weifang argued that the Guiding Opinions were part of a “hysterical reaction” from the authorities to the rise of protests in recent years. “The authorities want to put out the fire by putting down the lawyers,” he reportedly said, urging lawyers not to be intimidated.¹⁵³  He pointed out that the new Guiding Opinions limited the normal operations of the lawyers’ profession, harmed the fundamental principles of the lawyers’ professional organization, and resulted in the lawyers losing the right to handle cases independently.¹⁵⁴

B. Government response

Although the government prevented a public debate on the Guiding Opinions, the strong reaction of the legal community prompted the authorities to respond publicly.

1. Defending the Guiding Opinions

In May 2006 the Ministry of Justice took the unusual step of responding indirectly to the criticisms in an article defending the Opinions in the Legal Daily, a publication it runs. Noting that the new Guiding Opinions had “attracted the attention of the public and a large number of lawyers,” the article disputed that the objective was to limit the ability of lawyers to operate. The principle behind the new regulations, the Legal Daily stated, was solely to “safeguard the legal rights” of lawyers handling mass cases.¹⁵⁵ The Legal Daily’s argument reflected clearly that establishing the rule of law was not the primary goal of the Guiding Opinions:

Some articles pointed to the provision mandating that lawyers report when handling such cases, and, seizing this point while neglecting the rest of the content, criticized the fact that the Guiding Opinions limited and restricted the freedom of lawyers to handle cases. This indicates that some people have an incorrect and biased understanding of the provisions and background of the Guiding Opinions, as well as of their aim and significance.¹⁵⁶

The terms “incorrect and biased understanding” have strong political overtones, making use of a language habitually directed towards what the party identifies as political criticism.  

At the same time, the head of the ACLA, Yu Ding, also rejected the notion of lawyers’ independence from the government, arguing that

The ACLA is a professional social organization under the supervision and guidance of the Ministry of Justice. According to the regulations, the ACLA should communicate… with the Ministry of Justice before getting involved in a big case.¹⁵⁷

Yu argued that the Guiding Opinions were designed for the purpose of “bettering the ability of lawyers to resolve contradictions between citizens and the government,” and “offer[ing] better protection for the security and interests of lawyers, so as to avoid conflicts with the government.”¹⁵⁸

Yu also reiterated the threat that lawyers violating the new regulations would be penalized by the ACLA:

According to disciplinary standards of the profession, if a lawyer violates the regulations, the ACLA can discipline him by handing out a suspension or issuing a warning. ¹⁵⁹

Wang Cailiang, a Beijing lawyer who contributed to the initial drafting of the Guiding Opinions, also argued that reinforcing the links between lawyers and governmental agencies was of benefit to both lawyers and social stability. Wang justified the drafting as a way to encourage more lawyers to take on mass cases:¹⁶⁰

Two problems are at the origin of this lack of willingness to take mass cases…. One is that local regulations in some areas prevent the filing of mass cases, leading vulnerable populations to be even more vulnerable. Another one is that because of the [social and political] factors behind these cases, lawyers are unwilling to take up these cases due to the risks attached. ¹⁶¹

Wang did not explain why curbing the independence of lawyers rather than reinforcing their protection was the logical solution.  Rather, he merely stated in vague terms that the new regulations were “appropriate” to the “national conditions”:¹⁶²

These Guiding Opinions undoubtedly benefit the protections of the legal rights and benefits of the vulnerable populations, and are beneficial for the development of the proper role of lawyers in social building and social harmony. The regulations establish a reporting and communication system, this fits the present national conditions. Even if it adds to the lawyers obligations, considering it from the general situation of social stability, it is nevertheless appropriate. ¹⁶³

Appealing to “present national conditions”and the imperative to maintain “social stability” is the most common justification by the government for conducting politically motivated repression against perceived dissenters or critics.

2. Blaming Western enemy forces

Local authorities have explicitly justified the Guiding Opinions on the grounds that exposing protests and sensitive cases would embarrass the party and the government. For example, the Henan authorities listed “criminal cases of high-level officials” as a category of sensitive cases that could “affect the general political situation,”¹⁶⁴ while Shenzhen listed “violations of people’s interests by government departments,” and “unfair decisions by law enforcement agencies” as cases where lawyers were prohibited to talk to the media without prior approval.¹⁶⁵

The head of the Judicial Bureau of Zhengzhou, Henan province, justified the curbs on grounds of unspecified plans by “elements of the democracy movement” to use the legal community to undermine the authorities:

Elements of the democracy movement and overseas organizations of the evil cult Falungong also plot to use lawyers as a tool to pressure the party and the government. Looking at the domestic situation, nowadays…. it is a period when contradictions between the people arise, crime rises, and the fight against enemies is complicated.¹⁶⁶

He went on to suggest that the Guiding Opinions were crucial to stemming the tide of protests, which he implied were being instigated by foreigners: 

Sensitive cases of all kinds and mass incidents multiply ceaselessly. This augmentation must be solved in a legal manner…. Lawyers who take up sensitive and mass cases must resolve the contradictions according to law. If not, these cases could easily degenerate, to the advantage of a few individuals with ulterior motives in the country and to Western enemy forces abroad, affecting social and political stability. Therefore, we must remain highly vigilant, and absolutely not let the Western enemy forces’ plans succeed.¹⁶⁷

The allegation that protestors’ lawyers were supported by foreign forces had similarly been leveled by the Guangdong authorities in the wake of the Shanwei incidents, Dongzhou prefecture, where the police fired at protesters, killing at least three.¹⁶⁸ The Public Security Bureau circulated a report shortly after the killings, blaming a succession of collective protests on “disputes over so-called rights protection” issues and accused “hostile forces” of politicizing and inciting the masses over issues of farmers’ rights. The report also accused activists of “taking advantage of individual incidents”—the occurrence of protests or crackdowns—to write essays stirring up public opinion.¹⁶⁹

Discourses that associate vigorous legal activism with a political challenge are in line with remarks made by Politburo member Luo Gan on “Strengthening the political thinking of political and legal ranks” on April 11, 2006.¹⁷⁰ Luo Gan called for strengthening the “political and national security awareness” as a way to “strengthen our fight against opponents.”¹⁷¹ He listed “those who, under the pretext of rights protection [weiquan] carry out sabotage” among the enemy forces against whom “forceful measures” must be adopted, along with “people with ulterior motives who use internal contradictions within the people to create disturbances, who use Falungong and other evil sects to stir up trouble, and who use the ‘three forces’ [separatism, extremism, and terrorism] to carry out terrorism and separatist activities.”¹⁷²

Against such a politicized background, the Guiding Opinions act as a strong deterrent for lawyers to get involved in mass cases, which are explicitly defined as being politically sensitive.

[130] Shan Shibing, “In the End Should Lawyers ‘Follow the Law’ or ‘Listen to Government Departments’?” China Economic Times, May 18, [单士兵, “律师到底要“遵从法律”还是“听命部门”? ,” 中国经济时报, 2006-05-18], republished at http://law111.com/bbs/viewthread.php?tid=28 (accessed June 1, 2006).

[131] Wang Lin, “The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence,” Oriental Morning Post, May 24, 2006 [王琳, “评论：律协的主业应是维护行业独立性”, 东方早报, 2006-05-24], http://gb.chinabroadcast.cn/9083/2006/05/24/622@1057649.htm (accessed May 26, 2006).

[132] “Lawyers Handling Mass Cases Have Regulations,” Legal Daily, May 24, 2005 [“律师办理群体性案件有章程”, 法制日报, 2006-05-24], http://www.legaldaily.com.cn/bm/2006-05/24/content_320333.htm (accessed May 26, 2006).

[133] This is the case of Sichuan law professor and legal activist Wang Yi, for instance. “China Closes Dissident Blog Nominated for Award,” Radio Free Asia, October 31, 2005.

[134] Restrictions on nongovernmental organizations organizing conferences are often even tighter.  In June 2006 the Beijing authorities quashed the attempt by lawyers and legal experts involved in the case of the blind lawyer Chen Guangcheng to organize an independent seminar on rights defenders in China. The organizer of the seminar, Han Tao, had invited two of Chen’s legal advisers, Teng Biao and Xu Zhiyong, as well as HIV/AIDS and rights activist Hu Jia. Security officers instructed Tao to cancel the conference, searched his home and the conference site, and placed Han under surveillance. Radio Free Asia (in Chinese), June 30, 2006.

[135] Posting number 678106 by user “xlfy,” bulletin board of the ACLA website, http://www.acla.org.cn/forum/, June 6, 2006 (accessed June 16, 2006).

[136] Posting number 675700 by user “zzg,” bulletin board of the ACLA website, http://www.acla.org.cn/forum/, May 23, 2006 (accessed May 26, 2006).

[137] Posting by user “Cen Shao,” bulletin board of the ACLA website, http://www.acla.org.cn/forum/, May 20, 2006 (accessed May 25, 2006).

[138] See, for example, Arthur Waley’s rendering of the incantation of the golden hoop in his abridged translation of Pilgrimage to the West: “Tripitaka began to recite again. Monkey was soon writhing and turning somersaults. He grew purple in the face and his eyes bulged out of his head. Tripitaka, unable to bear the sight of such agony, stopped reciting, and at once Monkey’s head stopped hurting. - ‘You’ve been putting a spell upon me,’ he said.” Wu Ch’eng-en, Monkey, translated by Arthur Waley (London: Penguin Books, 2006 edition), p. 156.

[139] Posting number 676487 by user “lkhls,” bulletin board of the ACLA website, http://www.acla.org.cn/forum/, May 30, 2006 (accessed June 20, 2006). Reflecting the popularity of the reference, an important article later published in defense of the Guiding Opinion in the Legal Daily used as a subtitle “It’s a protective film, not a golden hoop.” “Lawyers Handling Mass Cases Have Regulations,” Legal Daily, May 24, 2005 [“律师办理群体性案件有章程”, 法制日报, 2006-05-24], http://www.legaldaily.com.cn/bm/2006-05/24/content_320333.htm (accessed May 26, 2006).

[140] “Warning to Lawyers Handling Protest Suits,” South China Morning Post, May 19, 2006.

[141] Shan Shibing, “In the End Should Lawyers ‘Follow the Law’ or ‘Listen to Government Departments’?” China Economic Times, [单士兵, “律师到底要“遵从法律”还是“听命部门”?,” 中国经济时报].

[142] Wang Lin, “The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence,” Oriental Morning Post, May 24, 2006 [王琳, “评论：律协的主业应是维护行业独立性”, 东方早报, 2006-05-24].

[143] Posting number 676319 by user “Bo Yang,” bulletin board of the ACLA website, http://www.acla.org.cn/forum/, May 25, 2006 (accessed June 20, 2006).

[144] Wang Lin, “The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence,” Oriental Morning Post [王琳, “评论：律协的主业应是维护行业独立性”, 东方早报.]

[145] Posting number 678149 by user “Lawyer Sun Yueli,” bulletin board of the ACLA website, http://www.acla.org.cn/forum/, June 1, 2006 (accessed June 20, 2006).

[146] Wang Lin, “The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence,” Oriental Morning Post [王琳, “评论：律协的主业应是维护行业独立性”, 东方早报].

[147] "Fifty Public Intellectuals Who Influence China," Southern Peoples’ Weekly, September 8, 2004 [“影响中国公共知识分子50人”, 南方人物周刊, 2004年9月8日。]. Zhang Sizhi has acted as defense lawyer in several of China's highest -profile cases, from the "Gang of Four" in 1980 to political dissident Wei Jingsheng in 1995.

[148] “The Legal Community Denounces the All-China Lawyers Association for Harming the Lawful Rights of the Masses,” Ming Pao (Hong Kong), June 15, 2006. [“法界斥律协戕害大众法律权利”, 明报 (香港), 2006-06-15.]

[149] Li Yuwen, “Lawyers in China: A Flourishing Profession in a Rapidly Changing Society?” China Perspectives, No. 27, January-February 2000.

[150] “The legal Community Denounces the All-China Lawyers Association for Harming the Lawful Rights of the Masses,” Ming Pao. [“法界斥律协戕害大众法律权利”, 明报.]

[151] Ibid.

[152] Fu Dalin, “Lawyers Must Ask for Instructions?” website of the ACLA, April 28, 2006 [傅达林, “律师办案须请示”, 中国律师网, 2006-4-28], reproduced at://www.cdlawyer.com/wztj/ShowArticle.asp?ArticleID=593 (accessed April 28, 2006).

[153] “The legal Community Denounces the All-China Lawyers Association for Harming the Lawful Rights of the Masses,” Ming Pao. [“法界斥律协戕害大众法律权利”, 明报.]

[154] Ibid.

[155] “Lawyers Handling Mass Cases Have Regulations,” Legal Daily [“律师办理群体性案件有章程”, 法制日报].

[156] Ibid.

[157] “Rights Protection Lawyers Restrained,” Ming Pao (Hong Kong), May 18, 2006. [“维权律师被套紧箍咒”, 明报（香港）, 2006-05-18.]

[158] Ibid.

[159] Ibid.

[160] “Drafter Talks about the Guiding Opinions on Lawyers Handling Mass Cases,” website of the ACLA www.acla.org.cn, May 18, 2006 [“起草人谈律师办理群体性案件指导意见,” 中国律师网, 2006-05-18], http://www.lawyers.org.cn/jsp/news/newsInfo.jsp?newsID=2000039725 (accessed May 20, 2006).

[161] Ibid.

[162] Ibid.

[163] Ibid.

[164] Henan Provincial Judicial Bureau, Trial Opinion on Strengthening the Supervision and Guidance for Lawyers’ Representation in Important and Sensitive Cases and Mass Cases, March 18, 2006 [“河南司法厅关于加强对律师办理重大、敏感、群体性案件指导监督的意见, (试行)” 2006-04-18], http://www.hnlawyer.org/show.aspx?id=2482 (accessed July 13, 2006).

[165] Shenzhen Municipality Judicial Bureau, Provisional Regulation on Lawyers Handling Sensitive and Mass Cases, June 29, 2006 [深圳市司法局: “关于律师代理群体性敏感案(事)件管理的暂行规定”2006-06-29], http://www.szlawyers.com/ShowDetail.asp?ArticleId=2346, art. 2, points 6 and 7.

[166] “Speech of Comrade Zheng Zhaoquan at the Work Conference on Building Shenyang Municipality Lawyers’ Ranks,” website of the Judicial Bureau of Shenyang Municipality, April 14, 2006 [“郑朝权同志在全市律师队伍建设工作会议上的讲话”, 中国沈阳普法网，2006-4-14], http://www.sypf.com/fzxw/sfdt/081.htm (accessed June 30, 2006).

[167] Ibid.

[168] See “China: Dongzhou Killings Need Independent Investigation,” Human Rights Watch news release, December 15, 2005, http://www.hrw.org/english/docs/2005/12/15/china12281.htm, and “China: Dongzhou Killings Must Be Investigated,” Human Rights Watch news release, June 1, 2006, http://hrw.org/english/docs/2006/06/01/china13489.htm.

[169] See Congressional-Executive Commission on China, “Guangdong Public Security Bureau Blames Mass Incidents on Rights Defenders Activities,” March 31, 2006, http://cecc.gov/pages/virtualAcad/index.phpd?showsingle=42751 (accessed June 30, 2006).

[170] Luo Gan, “Bolstering the teaching of the concept of socialist rule by law: Conscientiously strengthening the political thinking of the political and legal ranks,” Seeking Truth, Issue No. 433, June 16, 2006 [罗干, “深入开展社会主义法治理念教育  切实加强政法队伍思想政治建设”, 求是, 2006年6月16日（总433期）], http://www.qsjournal.com.cn/qs/20060616/GB/qs^433^0^1.htm (accessed October 16, 2006).

[171] Ibid.

[172] Ibid.

VIII. Recommendations

To the Chinese government

§ Immediately release all lawyers arrested, detained, or under supervision on account of their professional activities as human rights defenders.

§ Repeal the ACLA’s Guiding Opinions and similar local regulations that interfere with the ability of lawyers to represent the interests of their clients in collective cases.

§ Ensure the effective protection of lawyers carrying out their functions, in part by publicly committing to the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 to September 7, 1990, notably, principles:      

16.    Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

23.    Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

24.    Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.

§ Limit the authority of judicial bureaus over lawyers and prohibit interference in specific cases and cancel the system of annual renewal of lawyers’ licenses.

§ Ensure access to justice for victims of abuses of power by upholding existing laws, and prosecuting officials who obstruct the course of justice.

§ Make the ACLA fully independent so that it can adequately represent the interests of lawyers.

§ Issue an unconditional invitation to the United Nations special rapporteur on the independence of lawyers and judges to visit China, and allow the rapporteur full access in compliance with the terms of reference for United Nations rapporteurs.

To the United Nations

§ Press the Chinese government to free or cease harassing lawyers and allow “mass cases” to proceed through the legal system.

§ Press the Chinese government to invite the UN special rapporteur on the independence of lawyers and judges to visit.

To the international law community

§ Emphasize to Chinese officials the importance of an independent legal sector to resolving public disputes.

§ Publicly call for the repeal of the Guiding Opinions to bring them into line with international legal standards.

§ Recognize that assistance to improving judicial administration, which receives most international attention, will have a limited effect without commensurate support to the Chinese legal profession and the challenges it faces. 

§ Offer assistance on how to structure an independent lawyers’ association and provide comparative expertise on how other countries manage relationships between judicial branches and lawyers.

Acknowledgments

This report was edited by Brad Adams, executive director for the Asia Division of Human Rights Watch; Sophie Richardson, deputy director for the Asia Division; and Ian Gorvin, consultant in the Program Office. Dinah PoKempner, general counsel for Human Rights Watch, provided legal review.

Andrea Cottom, associate for the Asia Division, provided administrative and technical assistance. Production assistance was provided by Andrea Holley, Fitzroy Hepkins, Veronica Matushaj, Elijah Zarwan, and Jagdish Parikh.

Human Rights Watch is especially grateful to Professor Jerome Cohen and Professor D. Clarke for reviewing an earlier version of this report, as well as to the many Chinese legal professionals who volunteered their comments but preferred to remain anonymous.

Human Rights Watch also wishes to thank the C. E. and S. Foundation, as well as a very generous anonymous donor, for their support.

Appendix I: Guiding Opinions of the All-China Lawyers Association on Lawyers Handling Mass Cases

Adopted on a trial basis at the 4th session of the 6th meeting of the Standing Committee of the All-China Lawyers Association on March 20, 2006

During these important times, and beyond, the correct handling of cases of a mass nature [mass cases] is essential to the successful construction of a socialist harmonious society. Mass cases more commonly occur in land confiscation, forced eviction, relocation from reservoir areas, enterprise restructuring, environmental pollution, and other aspects of the protection of the rights and benefits of rural residents. Mass cases usually involve complex social, economic, and political factors, and have varied impacts on state and society that cannot be ignored. Thus, there is a need to regulate and guide lawyers in their handling of mass cases. Therefore, the following work opinions are proposed:

I.

1. A mass case is defined as one in which many (10 or more) plaintiffs act on the basis of the same or similar questions of fact or law to (a) bring an action through one representative, or collectively; (b) bring a series of actions; or (c) settle the matter outside the legal system. In a mass case, the law authorizes firms to provide professional and legal services in settling the matter outside the legal system, bringing court actions, and completing other related tasks.

Lawyers who undertake mass cases must go through legal channels to perform their duties. Lawyers who lawfully intervene in mass cases are helpful to the government, enterprises, and other opposing parties in their handling of the matters. Lawyers who get involved on an individual case basis, engage in analysis and inquiry, and propose legal opinions and suggestions help promote judicial and legislative activities and lawful administration.

In mass cases, lawyers can be retained by a mass client and provide legal advice, participate in mediation, and act as its agent in litigation. Lawyers can also provide consultative services as legal counsel to the government and enterprises, in order to assist the government and judicial agencies in handling and resolving issues, and can also be retained by the government, enterprises, and other opposing parties, to act as an agent in litigation and participate in mediation. Lawyers who handle mass cases shall serve their client within the bounds of their professional duties, in accordance with law, and strictly abide by professional ethics and disciplinary rules.

2. Lawyers should have a great sense of social responsibility and attach the utmost significance to mass cases. They should be faithful to the Constitution, the law, and their duties; maintain their principles; dutifully safeguard their client’s lawful rights; uphold the law, social equity, and justice; actively participate in and facilitate the appropriate resolution of mass cases; safeguard the nation’s stability; ensure economic development; and promote social harmony.

Lawyers who handle mass cases shall attempt to resolve contradiction and conflict, and assist all parties to a dispute in the selection of lawful, suitable, peaceful, and reliable paths and methods for resolution of the dispute. They should advocate mediation to resolve disputes.

3. Lawyers who handle mass cases must adhere to these Guiding Opinions, as well as strictly abide by professional ethics, disciplinary rules, and other rules that relate to the legal profession.

Lawyers who handle mass cases should accept supervision and guidance by judicial administration departments.

Lawyers associations have the responsibility to supervise, regulate, and safeguard the lawful handling of mass cases.

II.

Lawyers who take on mass cases should carefully handle their relationships with the client, judicial agencies, the government, the media, and the public, among others.

Relations with the client

1. Lawyers should assist, supervise, and urge the client to provide honest testimony, and cannot support or assist the client in intentionally concealing or omitting important evidence or providing false testimony.

2. Lawyers should do their best to avoid situations in which the popular mood becomes unstable due to the false testimony or the distortion of case details by some of their clients or their representatives.

3. Lawyers should reject blatantly irrational demands raised by the client, the client’s representative, or the client’s agent.

4. Lawyers must neither instigate nor participate in the petitioning activities of the client, the client’s representative, or the client’s agent. Lawyers must neither participate in nor suggest the client’s use of methods such as violating public security or interfering with the normal operations of state agencies to compel a resolution to the case.

5. Where the following circumstances exist, a law firm can rescind the retainer agreement and terminate the lawyer-client relationship:

(1) The client persists in demands that violate the law;

(2) The client conceals or distorts important facts;

(3) The client uses the lawyer’s services to engage in activities that violate the law;

(4) Other objective reasons that make it difficult for the lawyer to perform their professional duties in a normal way.

Relations with judicial agencies

After a lawyer has accepted a mass case, they must promptly and fully communicate with the relevant justice bureau, and “seek truth from the facts” to report the situation, so that the appropriate level of significance may be attached. They must actively assist the judicial agency in ascertaining the facts. If there is a need, they can go through the lawyers association to report any problems to the judicial agency.

Relations with the government

After a lawyer has accepted a mass case, they must go through legitimate channels to promptly report the situation to the relevant government bureaus. If they discover anything indicating a potential intensification of the dispute or escalation of the situation, they should immediately report to judicial administration authorities.

Relations with the media

Lawyers and law firms must have appropriate relations with the media (including online media), “seek truth from the facts,” and be cautious in their commentary. They must not stir up the news, and must not pay for news coverage. They should exercise caution in their contacts with overseas organizations and overseas media.

III.

Lawyers who handle mass cases should comply with the following demands:

1. The system of reporting and placing cases on file. After a law firm has been retained in a mass case, it shall promptly report to the lawyers association to which it is subordinate. Where multiple law firms have undertaken a case on behalf of different clients, but based on the same appeal, they can consult with one another to determine one law firm that will be responsible for reporting to the lawyers association. Law firms in different regions that accept the same case shall report separately to the respective lawyers associations to which they are subordinate.

2. Collective discussion, strengthened supervision. The undertaking of a mass case should be collectively discussed and agreed by at least three partners at a law firm, who will jointly accept the retainer, designate a person to undertake the case, and collectively formulate the case strategy. The director of the law firm is fully responsible for overseeing and supervising the lawyers handling a mass case, and shall promptly curb and adopt remedial measures against any behavior in violation of regulations that is discovered during the course of a lawyer’s handling of the case.

3. Completion of consultation andaccepting cases. Law firms shall arrange for two or more lawyers of good political and professional quality, with abundant experience, to conduct the consultations and accept mass cases, and keep records of their work. Lawyers must be painstaking and thorough in responding to those who come in for consultation, and should not be hasty in providing opinions. Law firms that decide to take a case shall complete a comprehensive record of their acceptance of the case.

4. Lawyers who are requested by the relevant government bureau to participate in petitioning cases must safeguard social stability while also safeguarding the lawful rights of the mass client. Lawyers shall, within the bounds of their own professional duties, work hard to support the work of the relevant bureaus, guide the client in the lawful handling of the case, and do their best to persuade their clients not to take their petitions to higher levels or to organize mass petitions.

5. Depending on the particular circumstances of a mass case, law firms can enter into a retainer agreement with the client and also enter into a retainer agreement with the client’s authorized representative or agent. After a case has entered the litigation stage and a court has made a request for each retainer letter authorized by the client, the law firm shall assist with the formalities.

6. After a mass case has concluded, the law firm shall promptly report the situation to the lawyers association to which it is subordinate.

7. Law firms shall guarantee that the records of a mass case are complete, detailed, orderly, and tidy.

IV.

When lawyers handle mass cases in accordance with law, a lawyers association shall provide support, guidance, and supervision:

1. Lawyers associations have the authority to familiarize themselves with the circumstances of a lawyer’s handling of a case, and to put forward suggestions.

2. Pursuant to a law firm’s request, a lawyers association can organize an individual case study. It can also, on its own, decide to convene a case study symposium and put forward its opinions.

3. With respect to mass cases that could have a major impact, lawyers associations shall promptly communicate and coordinate with the relevant bureaus. Lawyers associations can, according to the need, express their opinions to the masses on issues related to the case.

4. If the personal integrity and professional rights of a lawyer are harmed, a lawyers association shall promptly report the situation to the relevant bureau and urge the relevant bureau to adopt measures to safeguard the lawyer’s lawful rights.

5. If the professional rights of a lawyer are harmed outside his practicing jurisdiction, and he requests support from the lawyers association to which he is subordinate, the lawyers association receiving his request shall provide support. The All-China Lawyers Association can, according to the need, carry out organized and coordinated activities to defend the lawyer’s rights.

6. Law associations can, based on a request by a law firm or on the basis of their judgment regarding appropriate handling of the issue, propose or remind each party’s lawyers to enter into mediation and negotiation to resolve a dispute.

7. With respect to important mass cases, lawyers associations shall promptly share information with the judicial administration departments at their same level [of administration].

8. If a lawyer or law firm does not handle mass cases in accordance with the Opinions, and thus brings about adverse consequences, a lawyers association can administer a punishment based on the relevant rules of the legal profession, or propose the administration of a punishment by a judicial administration department.

9. Lawyers associations should strengthen professional training for lawyers handling mass cases and shall provide general guidance on situational policies, case handling strategies, and work demands.

V.

When taking on important sensitive cases, lawyers shall abide by the Guiding Opinions. Mass cases taken on before the Guiding Opinions came into effect should be reorganized accordingly.

The All-China Lawyers Association Executive Council is responsible for interpreting and revising the Guiding Opinions.

The Guiding Opinions were formulated based on the “Lawyers Association Articles of Association.” They have been placed on file with judicial administration departments.

The Guiding Opinions will be implemented on a trial basis from the date of issuance.

Appendix II: Glossary of Chinese Terms

English	Pinyin	Chinese
Rights protection	Weiquan	维权
Rights protection movement	Weiquan yundong	维权运动
Rights protection lawyer(s)	Weiquan lüshi	维权律师
Ruling the country according to law	Yi fa zhi guo	依法治国
Stopped for rectification	Ting ye zheng dun	停业整顿
De-registered	Zhuxiao	注销
Issued administrative warnings	Bei xingzheng jinggao	被行政警告
License withdrawn	Diaoxiao	吊销
Suspended for a period of time	Tingzhi zhiye	停止职业
Issued criticisms	Tongbao piping	通报批评
Temporarily de-registered	Bei zanhuan zhuce	被暂缓注册
Law enforcement organs	Gongjianfa	公检法
The “Three difficulties”	San nan	三难
Collective case	Jitixing anjian	集体性案件
Mass case	Quntixing anjian	群体性案件
Sudden incidents	Tufa shijian	突发事件
Litigation	Susong	诉公
Non-litigious	Fei susong	非诉公
Letters and Visits system (colloq.)	Shangfang	上访
Collective petitioning	Jiti shangfang	集体上访
“Stability overwhelms everything”	Wending yadao yiqie	稳定压倒一切

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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 that this will happen and no explanation after it happened that the failure to connect to the page is not the result of user error or technical failure but deliberate blockage. 2) When the user types certain keywords into a Google search, their connection to Google is terminated and they receive no search results. Again there is no explanation for why this happens. As the ONI points out, “Neither China’s keyword filtering nor the mechanism used to filter the Google cache is specific to Google.”¹¹³ In other words, the actual censorship being done in this case is by employees of the Internet Service Providers and by Chinese government employees, not by Google employees.

Passive censorship in Chinese-language Google News: In September 2004 the launch of a Chinese-language edition of Google News also marked Google’s first step in the direction of compromise with Chinese censorship practices. When the user typed in words or phrases that yielded blocked results, Chinese Google News did not display those results (see Figs 12 & 13 for a comparison of a search for “Tiananmen massacre” conducted on regular Google News and Chinese Google News in October 2005).The filtering was being done by the Chinese government and Chinese ISPs, not directly by Google. But Google opted not to display links on Chinese Google News that would lead to error pages or termination of the session.

In response to criticism by human rights and free speech groups, Google responded on its official blog:

For Internet users in China, we had to consider the fact that some sources are entirely blocked. Leaving aside the politics, that presents us with a serious user experience problem. Google News does not show news stories, but rather links to news stories. So links to stories published by blocked news sources would not work for users inside the PRC -- if they clicked on a headline from a blocked source, they would get an error page. It is possible that there would be some small user value to just seeing the headlines. However, simply showing these headlines would likely result in Google News being blocked altogether in China.¹¹⁴

Active censorship with Google.cn: In December 2005 Google received its license as a Chinese Internet service. Then on January 26, 2006, Google launched a censored version of its search engine for the Chinese market in which Google became the censor, not merely the victim of state and ISP censorship. Tests of the site showed that Google.cn censors thousands of keywords and web addresses.¹¹⁵ The “block list” was not given to Google by the Chinese government, but rather––as with the other search engines operating in China––was created internally by Google staff based on their own testing of what terms and web addresses were being blocked by Chinese Internet service providers.¹¹⁶  

Google’s CEO Eric Schmidt explained that Google’s decision to launch a censored service was the result of a great deal of internal wrangling within the company, but that ultimately Google executives concluded that censorship was necessary for Google to provide more and better service to Chinese Internet users. “We concluded that although we weren’t wild about the restrictions, it was even worse to not try to serve those users at all,” he said. “We actually did an evil scale and decided not to serve at all was worse evil.”¹¹⁷

On Google’s official blog, senior policy counsel Andrew McLaughlin explained that the

Figure 12: Search on regular Google News: “Tiananmen Massacre”

company’s top management had decided that being in China with a censored service would serve Chinese users better than if Google refused to censor. McLaughlin argued that while Google.com remained accessible to Chinese Internet users, “Google.com appears to be down around 10 percent of the time. Even when users can reach it, the website is slow, and sometimes produces results that when clicked on, stall out the user’s browser.”¹¹⁸ He defended Google’s decision against critics who slammed the company for compromising its signature corporate motto: “don’t be evil.”¹¹⁹

McLaughlin continued:

Launching a Google domain that restricts information in any way isn’t a step we took lightly. For several years, we’ve debated whether entering

Figure 13: Filtered search on Chinese Google News: “Tiananmen Massacre”

the Chinese market at this point in history could be consistent with our mission and values.

Filtering our search results clearly compromises our mission. Failing to offer Google search at all to a fifth of the world’s population, however, does so far more severely. Whether our critics agree with our decision or not, due to the severe quality problems faced by users trying to access Google.com from within China, this is precisely the choice we believe we faced. By launching Google.cn and making a major ongoing investment in people and infrastructure within China, we intend to change that. ¹²⁰

Clearly, Google felt that it was losing market share to its number-one competitor in the Chinese search engine market, Baidu, as a result of problems Chinese users were having accessing Google.com. Users regularly experienced Internet connection failures resulting from clicking on links appearing in Google.com search results that happened to be censored by Chinese Internet service providers.

It is difficult to assess the extent to which inaccessibility was truly affecting Google’s market position without access to Google’s full data from the results of its accessibility testing, which Google has not released.¹²¹

Google de-lists politically sensitive websites from the Google.cn search engine, but does not publicize a list of which sites are de-listed and does not notify the site’s owners. In an effort to increase transparency with users, Google.cn included one feature that is also being used to some degree by MSN Chinese “beta” search. In all cases in which search results are censored, Google.cn displays a message at the bottom of the screen: “These search results are not complete, in accordance with Chinese laws and regulations.” Google claimed in a statement that adding this level of transparency to censorship justified its decision to become an active censor. According to Google’s McLaughlin, “Chinese regulations will require us to remove some sensitive information from our search results. When we do so, we’ll disclose this to users, just as we already do in those rare instances where we alter results in order to comply with local laws in France, Germany and the U.S.”¹²² (See Figs. 14, 15 & 16.)

It is not true, however, that Google provides the same amount of disclosure about its Chinese censorship practices as it does when responding to court take-down orders in France, Germany, and the United States. On Google.com, results are often removed due to “cease and desist” requests over copyright violation. Search pages in which results have been removed include the following notice at the bottom of the page: “In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.”¹²³ A link then enables the user to read the full legal request that resulted in removal.¹²⁴ In France and Germany, when results are removed from a Google search, a notice at the bottom of the page notifies the user of exactly how many results were removed. It reads: “In response to a legal request

Figure 14: Google.com search on “Tiananmen Massacre”

submitted to Google, we have removed [x number of] result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org.”¹²⁵ A link then directs the user to a specific page on ChillingEffects.org with information about the legal circumstances under which the result was removed.¹²⁶

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Figure 15: Google.cn search on “Tiananmen massacre”

Figure 16: Google.cn de-listing of hrw.org

The level of transparency Google currently provides to the French, Chinese, and U.S. user is in itself criticized as inadequate by many technology analysts and free speech activists.¹²⁷ While Chinese legal and political circumstances surrounding censorship are very different from these countries, and government practices are several degrees less accountable and transparent, Google nonetheless owes the Chinese user the maximum extent of information possible about what has been removed and why. While Google has made a gesture in that direction by generating a generic notice when some search results have been removed, Human Rights Watch believes that it is possible and necessary for Google to provide even the Chinese user with more specific information about the number of results removed and why.

In his February 15, 2006 congressional testimony, Google Vice President Eliot Schrage pointed out that in addition to a disclosure policy of informing Chinese users whenever search results have been removed, Google’s new site will provide a link to the uncensored Google.com, ensuring that it remains available to Chinese users. His testimony also indicated that Google has observed and learned from the experiences of Yahoo! and Microsoft: “Google.cn today includes basic Google search services, together with a local business information and map service. Other products––such as Gmail and Blogger, our blog service––that involve personal and confidential information will be introduced only when we are comfortable that we can provide them in a way that protects the privacy and security of users’ information.”¹²⁸

Schrage also said that Google supports industry cooperation to minimize censorship:

Google supports the idea of Internet industry action to define common principles to guide the practices of technology firms in countries that restrict access to information. Together with colleagues at other leading Internet companies, we are actively exploring the potential for guidelines that would apply for all countries in which Internet content is subjected to governmental restrictions. Such guidelines might encompass, for example, disclosure to users, protections for user data, and periodic reporting about governmental restrictions and the measures taken in response to them.¹²⁹

Google also argues that these voluntary actions would be much more effective with help from the U.S. government’s executive branch:

The United States government has a role to play in contributing to the global expansion of free expression. For example, the U.S. Departments of State and Commerce and the office of the U.S. Trade Representative should continue to make censorship a central element of our bilateral and multilateral agendas.

Moreover, the U.S. government should seek to bolster the global reach and impact of our Internet information industry by placing obstacles to its growth at the top of our trade agenda. At the risk of oversimplification, the U.S. should treat censorship as a barrier to trade, and raise that issue in appropriate fora.¹³⁰

Chinese netizen reactions: Opinions differ in China––even among people who chafe against official restrictions on their freedom of speech––as to whether Google’s compromise was acceptable. When Google.cn was first rolled out, a number of Chinese bloggers concerned with free speech issues were quick to condemn the move. One labeled the new service the “Castrated Google.”¹³¹ Others, such as Michael Anti, were more philosophical, pointing out that while Google had made a compromise, it had done so after considerable weighing of the human consequences, and made a conscious decision not to provide services that would put itself in the position of having its local employees––with no choice but to comply––into conflict with the Chinese government demands to censor content or, even worse, to hand individuals over to the police.¹³²

Some Chinese bloggers have also expressed concern that the existence of the censored Google.cn will make it easier for Chinese ISP’s to block Google.com without excessive public outcry, because some form of Google search remains available.¹³³ Indeed, in late May and the first days of June—the most politically sensitive time of the year due to the anniversary of the June 4, 1989 Tiananmen Square massacre—several Chinese Internet users in Beijing, Shanghai and Guangzhou reported that Google.com was consistently inaccessible while the censored Google.cn remained accessible as normal. ¹³⁴ Users also reported problems accessing Gmail and other Google-hosted services.¹³⁵ Google spokespersons neither confirmed nor denied what was happening, but acknowledged user reports and said that the company was investigating.¹³⁶ By June 9the block was off, prompting speculation by Reporters Sans Frontieres that the easing was thanks to user outcry, although what happened remained difficult to assess, given that neither Google nor the Chinese government have elaborated publicly on the facts of the situation.¹³⁷

Chinese Internet users responded with anger, directed primarily at whoever was responsible for creating the blockage. Many bloggers protested by publishing on their blogs the picture of a voodoo doll labeled as “the person who makes it impossible to access Google,” with needles stuck in its heart, and the caption: “one click on this site equals one pin prick.”¹³⁸ (See Fig. 17.)

Figure 17: Anti-censorship voodoo doll displayed by Chinese blogger “keso” (screen grab on June 15, 2006)

Some Chinese bloggers, however, also blamed Google for not being upfront and honest with China’s frustrated netizens about what was going on. “Chinese bloggers are discontented with Google China’s official blog, since it did not have any explanation on the issues,” wrote the Chinese blogger “Tangos” at China Web 2.0 Review.¹³⁹ In fact, Google’s Chinese blog made no mention of the entire situation, despite the fact that the Google.com blockage was the primary concern of Google users during that period.¹⁴⁰ Chinese blogger “Herock” writes: “I can’t believe Google China isn’t aware that nobody can get on Google these days. In my view, reacting to these kinds of big events is part of the mission of a corporate blog. But the method of ‘Hei Ban Bao’ [the Google China blog – literally translated as ‘blackboard news’] is to pretend that this never happened and not say a word. This makes me feel that ‘Hei Ban Bao’ is totally useless.”¹⁴¹ Useless or not, the situation certainly demonstrates that Google’s China management are not being honest with their users, and that their users not only notice, but at least many of the influential and vocal ones seem to care a great deal.

A few days later Google co-founder Sergey Brin told reporters in Washington, D.C., that most Google users in China use the uncensored Google.com, not the censored Google.cn. He said that while Google had acquiesced to Chinese government censorship demands, they were “a set of rules that we weren’t comfortable with.” He then continued: “We felt that perhaps we could compromise our principles but provide ultimately more information for the Chinese and be a more effective service and perhaps make more of a difference.” He added that “perhaps now the principled approach makes more sense.” He then said: “It’s perfectly reasonable to do something different, to say: ‘Look, we’re going to stand by the principle against censorship, and we won’t actually operate there.’ That’s an alternate path….It’s not where we chose to go right now, but I can sort of see how people came to different conclusions about doing the right thing.”¹⁴²

Asked by reporters for comment soon thereafter, Chinese Foreign Ministry Spokesman Liu Jianchao responded at a press conference as follows:

China holds a positive attitude toward cooperation with Google in the information area. Any economic and trade cooperation should be conducted within the framework of law. We hope that corporations operating in China can abide by Chinese law.¹⁴³

Chinese blogger Keso had this reaction:

Liu Jianchao’s statement actually equals an admission that the blocking of Google was done by us because Google didn’t respect Chinese law. But China’s spokesman will never clearly tell the foreigners what article of the law Google violated, and that the blocking is being done by which law. Foreigners usually want to be able to conduct commercial activities according to clear laws which they can follow. But in China, a lot of things are like Zen and can’t be explained. Without some breakthrough in thinking, if you want to comprehend the Chinese way, unfortunately you also have to invest a lot of time. ¹⁴⁴

The comments thread following Keso’s post is long and lively. Some sympathized with Google’s situation or commented that competitor Baidu must be celebrating. Some expressed frustration with the system. Some wrote satirical poems and ditties, while others posted widely-used shorthand acronyms for obscenities in reference to Baidu and the Chinese government. Others remarked that Google is naive to think it can do anything other than adapt to the Chinese political situation. Some invoked patriotism and national pride in homegrown products and the need for foreigners to respect Chinese law. Others discussed the detailed business and advertising reasons for Google.cn’s lack of success so far, or argued about the quality of Baidu versus Google.¹⁴⁵ These comments are among the many examples of the extent to which Chinese Internet users themselves disagree over how multinational companies should respond to Chinese government demands.

It is worth noting that there is a perception among Chinese Internet users that Baidu gains competitively from Google’s problems. This is one further example of the way in which lack of transparent laws and procedures creates an unfair playing field for international businesses seeking to compete in the Chinese market. In light of this situation, Google should be justified in challenging Chinese ISP’s blockage of Google.com—when done without clear legal reason, procedure or process for appeal—as an unfair and extralegal barrier to trade, calling upon the U.S. Trade Representative and the World Trade Organization for support.

4. Skype

In November 2004 Skype (which was acquired by eBay in September 2005) launched a simplified Chinese-language version of Skype, the online voice and chat client, jointly developed with TOM Online Inc., a Chinese wireless Internet company. In September 2005 Skype and TOM formed a joint venture company to “develop, customize and distribute a simplified Chinese version of the Skype software and premium services to Internet users and service providers in China.”¹⁴⁶ The Chinese client distributed by TOM Online employs a filtering mechanism that prevents users from sending text messages with banned phrases such as “Falungong” and “Dalai Lama.”¹⁴⁷

In an April 2006 interview with the Financial Times, Skype’s chief executive Niklas Zennström responded to a question about Skype’s Chinese-language censorship, explaining that Skype was simply complying as necessary with local law. “Tom had implemented a text filter, which is what everyone else in that market is doing,” the Financial Times quoted Mr Zennström as saying. “Those are the regulations.”¹⁴⁸ Neither Zennström nor any other Skype executive, however, has clarified exactly which regulations are being complied with or which keywords are involved. Nor has Skype made public a full list of the keywords being blocked by the TOM-Skype client. Skype’s Jaanus Kase followed up with a post on the official Skype blog with some further clarification. He said:

TOM operates a text filter in TOM-Skype. The filter operates solely on text chats. The filter has a list of words which will not be displayed in Skype chats. The text filter operates on the chat message content before it is encrypted for transmission, or after it has been decrypted on the receiver side. If the message is found unsuitable for displaying, it is simply discarded and not displayed or transmitted anywhere.

It is important to underline:

 

The text filter does not affect in any way the security and encryption mechanisms of Skype.

 

 

Full end-to-end security is preserved and there is no compromise of people’s privacy.

 

 

Calls, chats and all other forms of communication on Skype continue to be encrypted and secure.

 

 

There is absolutely no filtering on voice communications.¹⁴⁹

 

Chinese bloggers and Internet entrepreneurs responded in the blog’s comments section, challenging the necessity of Skype’s action. Examples of the comments include:

Skype don’t need necessarily need [sic] Tom to operate business in China. Skype itself can do the job well since users help Skype spreading anywhere. I don’t know or even can’t image any government enforces a software to do text filtering unless they do self-policing first. Skype is misled by Tom, the useless partner. Basically Skype is different from Google or Yahoo online service, it’s standalone software.

Geeks in China ever regard Skype as the hero to play important role to conduct secure communication. They are very disappointed now to see Skype join the evil business list. Sigh!

The cooperation is definitely reducing the reputation of Skype in this country. It will also pushing [sic] users away. Please re-consider the decision (cooperating with ToM and anti-freedom). I suppose Skype the company is becoming a responsible business, why not rethink it?¹⁵⁰

After blogger criticism that he was ignoring users’ censorship concerns, Kase eventually responded with a comment at the RConversation.com blog: “Skype has taken a decision to have TOM Online actively manage its business in China, thus you should be addressing these questions to TOM.”¹⁵¹  

Interestingly, when Human Rights Watch downloaded and tested the TOM-Skype client, entering lists of banned words from the “block lists” of other services (such as those listed in Appendices I and II), none of the words were found to be blocked. Other Internet users in China have reported similar results. Nart Villeneuve of the OpenNet Initiative downloaded and analyzed the TOM-Skype client and found that, after running long lists of commonly banned words (including “Falungong” and “Dalai Lama”), he only succeeded in triggering the blockage of one common English-language obscenity. He did discover, however, that when installing TOM-Skype onto his computer, the censoring program ContentFilter.exe was also automatically installed without any user notification. Upon logging in, the program downloaded an encrypted file called “keyfile” onto his computer. (The file remained on his computer after he uninstalled TOM-Skype later.) He was unable to decrypt the file, but he writes in his blog that it appeared to be “a keyword list file of some sort.” Villeneuve observes that the keyword blocking takes place on the side of the message recipient and that any message containing the blocked keyword (sent by any Skype user to any user of the TOM-Skype client) fails to appear on the recipient’s screen.¹⁵² Human Rights Watch has downloaded the TOM-Skype client and had an identical experience. The censorware was downloaded onto a Human Rights Watch researcher’s hard drive without notification, and we received identical results to Villeneuve’s when testing lists of keywords frequently banned in China. Thus, while TOM-Skype currently does not censor many words, the TOM-Skype client is ready upon installation to receive updates from TOM-Skype at any time, adding new censored words without the user’s knowledge.

Skype has not acknowledged and is not known to be censoring its text chat in any other country besides China. The justification given by Skype executives for censorship is, in essence, the peer pressure defense: “Everbody does it.” To Skype’s credit, as of this writing very few words are being censored and no political or religious words have been discovered to be among them. It is not clear whether this is the result of recent public scrutiny or whether the TOM-Skype client had not yet added words to the block list. The key question now is whether Skype will resist adding new words to the block list without a legally binding written court order from the Chinese authorities to do so, or whether TOM-Skype will take an initiative proactively to censor. However, TOM-Skype does not inform users that censorware will be installed on their computer at the same time that the TOM-Skype software is installed. Skype executives have said that their local partner is carrying out “best practice” in the Chinese market. The installation of censorware without informing the user is actually considered to be “worst practice” in the Internet industry.

In order to set the standard for “best practices” in dealing with the Chinese government’s pressure to censor its users, Human Rights Watch recommends that Skype should prevail upon its business partner to: 1) resist adding any further keywords to the TOM-Skype censorship list without a court order forcing them to do so; and 2) inform users clearly and prominently on the download page that censorware will be installed along with the TOM-Skype client. It is not too late for Skype to resist the “race to the bottom” taking place in China, in which more and more multinational companies are participating and thus legitimizing China’s system of censorship without questioning a) whether the standard practices have any grounding even in Chinese legal procedure; b) whether they are truly necessary in order to function in China; or c) whether market advantage might be gained by making greater efforts than the domestic competition to maximize user interests and rights.

Figure 18: Detail from Nart Villeneuve blog post about TOM-Skype censorware

Figure 19: Detail from Nart Villeneuve’s blog post depicting censored chat on TOM-Skype

[54] “Yahoo! We Value…” Yahoo Mission Statement, 2004 [online], http://docs.yahoo.com/info/values/ (retrieved July 27, 2006).

[55] “Yahoo! Introduces Yahoo! China,” Yahoo! corporate press release, September 24, 1999 [online], http://docs.yahoo.com/docs/pr/release389.html (retrieved July 11, 2006).

[56] Jim Hu, “Yahoo yields to Chinese web laws,” CNet News.com.

[57] “Yahoo! Risks abusing human rights in China,” Human Rights Watch news release, August 9, 2002, http://www.hrw.org/press/2002/08/yahoo080902.htm.

[58] Jim Hu, “Yahoo yields to Chinese web laws,” CNet News.com.

[59] “Testimony of Michael Callahan, Senior Vice President and General Counsel, Yahoo! Inc., Before the Subcommittees on Africa, Global Human Rights and International Operations, and Asia and the Pacific,” U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006 [online], http://wwwc.house.gov/international_relations/109/cal021506.pdf, and Yahoo! corporate press release, undated, http://yhoo.client.shareholder.com/press/ReleaseDetail.cfm?ReleaseID=187... (both retrieved July 11, 2006).

[60] Reporters Sans Frontières, “Information supplied by Yahoo! helped journalist Shi Tao get 10 years in prison,” September 6, 2005 [online], http://www.rsf.org/article.php3?id_article=14884 (retrieved July 11, 2006).

[61] For a partial English translation see http://chinadigitaltimes.net/2006/02/yahoo_helped_sentence_another_cyber... (retrieved July 11, 2006); for the full Chinese court document see http://www.peacehall.com/news/gb/china/2006/02/200602051139.shtml; for a full English translation by Hong Kong blogger Roland Soong, see http://www.zonaeuropa.com/20060209_2.htm (retrieved July 11, 2006).

[62] The original Chinese court document and English translation are at http://www.rsf.org/article.php3?id_article=17180 (retrieved July 11, 2006).

[63] The original document and translation are at http://hrichina.org/public/contents/press?revision%5fid=27803&item%5fid=... (retrieved July 11, 2006).

[64] “CHINA: Yahoo gave email account data used to imprison journalist,” Committee to Protect Journalists 2005 News Alert, September 7, 2005 [online], http://www.cpj.org/news/2005/China07sept05na.html (retrieved July 11, 2006).

[65] Callahan testimony, U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China.”

[66] Ibid. See also: “Chinese man ‘jailed due to Yahoo,’“ BBC News, February 9, 2006 [online], http://news.bbc.co.uk/2/hi/asia-pacific/4695718.stm (retrieved July 11, 2006).

[67]“Yahoo Writer Jailed in China,” Red Herring, February 9, 2006 [online], http://www.redherring.com/Article.aspx?a=15659&hed=Yahoo+Writer+Jailed+i... (retrieved July 11, 2006).

[68] Callahan testimony, U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China.”

[69] “Yahoo Writer Jailed in China,” Red Herring.

[70] Mure Dickie, “Yahoo backed on helping China trace writer,” FT.com. November 10, 2005 [online], http://news.ft.com/cms/s/7ed7a41e-515f-11da-ac3b-0000779e2340.html (retrieved July 11, 2006).

[71] “ALIBABA.COM On the Record: Jack Ma,” San Francisco Chronicle, May 7, 2006 [online], http://www.sfgate.com/cgi-bin/article.cgi?f=/chronicle/archive/2006/05/0... (retrieved July 11, 2006).

[72] Clive Thompson, “Google’s China Problem,” New York Times Magazine, April 23, 2006 [online], http://www.nytimes.com/2006/04/23/magazine/23google.html?ex=1303444800en... (retrieved July 11, 2006).

[73] Nate Anderson, “Yahoo on China: We’re doing some good,” Ars Technica, May 12, 2006 [online], http://arstechnica.com/news.ars/post/20060512-6823.html (retrieved July 11, 2006).

[74] Nate Anderson, “Yahoo on China,” Ars Technica.

[75] “Yahoo!: Our Beliefs as a Global Internet Company,” Yahoo! corporate press release, undated [online], http://yhoo.client.shareholder.com/press/ReleaseDetail.cfm?ReleaseID=187... (retrieved July 11, 2006).

[76] Elinor Mills, “Yahoo Blog:Yahoo says no to Amnesty International on China,” CNet News.com, May 25, 2006, http://news.com.com/2061-10811_3-6077174.html (retrieved July 11, 2006).

[77] Ibid.

[78] “ALIBABA.COM On the Record: Jack Ma,” San Francisco Chronicle.

[79] See, among others, Human Rights Watch/Asia, “Whose Security? State Security in China’s New Criminal Code,” A Human Rights Watch Report, vol. 9, no. 4(C) April 1997, http://www.hrw.org/reports/1997/china5/; “China: Fair Trial for New York Times Researcher,” Human Rights Watch news release, June 2, 2006, http://hrw.org/english/docs/2006/06/02/china13498.htm; and U.S. State Department, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices – 2005: China,” March 8, 2006 [online], http://www.state.gov/g/drl/rls/hrrpt/2005/61605.htm (retrieved July 11, 2006).

[80] Nate Anderson, “Yahoo on China,” Ars Technica.

[81]Liu Xiaobo, “An Open Letter to Jerry Yang, Chairman of Yahoo! Inc. Regarding the Arrest of Shi Tao,” China Information Center, October 14, 2005 [online], http://www.cicus.org/news/newsdetail.php?id=5421 (retrieved July 11, 2006).

[82] Zhao Jing, “Guanyu Weiruan shijian he meiguo guohui keneng de lifa,” January 14, 2006, http://anti.blog-city.com/1603202.htm (retrieved July 16, 2006).

[83] Zhao Jing, “The Freedom of Chinese Netizens Is Not Up To The Americans,” blog, original Chinese at http://anti.blog-city.com/1634657.htm; English translation by Roland Soong at EastSouthWestNorth, http://www.zonaeuropa.com/20060217_1.htm (retrieved July 12, 2006).

[84]Clive Thompson, “Google’s China Problem,” New York Times Magazine.

[85] http://spaces.msn.com/rconversation/blog/cns!A325F2EACCC417CF!110.entry?_c=BlogPart#permalink

[86] Global Citizenship at Microsoft, [online], http://www.microsoft.com/about/corporatecitizenship/citizenship/default.... (retrieved July 27, 2006)

[87] Letter from Pamela S. Passman, Vice President, Global Corporate Affairs, Microsoft Corporation, to Human Rights Watch, July 21, 2006.

[88] “Microsoft Prepares to Launch MSN China,” Microsoft news release, May 11, 2005, http://www.microsoft.com/presspass/press/2005/may05/05-11MSNChinaLaunchP... (accessed July 12, 2006).

[89] Ibid. See also Allen T. Cheng, “Shanghai’s ‘King of I.T.’,” Asiaweek.com, February 9, 2001 [online], http://www.pathfinder.com/asiaweek/technology/article/0,8707,97638,00.ht... (retrieved July 12, 2006).

[90] “Screenshots of Censorship,” blog, Global Voices, June 16, 2005,

http://www.globalvoicesonline.org/?p=238; and http://news.bbc.co.uk/1/hi/technology/4088702.stm (retrieved July 12, 2006).

[91] Tests conducted by author between December 10 and 30, 2005, initially for the book chapter: 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).

[92] Roland Soong, “The Anti Blog is Gone,” EastSouthWestNorth, December 31, 2005 [online], http://www.zonaeuropa.com/200512brief.htm#100 (retrieved July 12, 2006); and Rebecca MacKinnon, “Microsoft Takes Down Chinese Blogger,” RConversation.com, January 3, 2006 [online], http://rconversation.blogs.com/rconversation/2006/01/microsoft_takes.htm... (retrieved July 12, 2006).

[93] David Barboza and Tom Zeller, Jr., “Microsoft Shuts Blog’s Site After Complaints by Beijing,” New York Times, January 6, 2006 [online], http://www.nytimes.com/2006/01/06/technology/06blog.html?ex=1294203600&e... (retrieved July 12, 2006).

[94] Jeremy Kirk, “Microsoft revamps blogging policy,” InfoWorld, January 31, 2006 [online], http://www.infoworld.com/article/06/01/31/74926_HNmicrosoftbloggingpolic... (retrieved July 12, 2006).

[95] Testimony of Jack Krumholtz Associate General Counsel and Managing Director, Federal Government Affairs Microsoft Corporation, House of Representatives Committee on International Relations Joint Hearing of the Subcommittee on Africa, Global Human Rights and International Operations and the Subcommittee on Asia and the Pacific: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006 [online], http://wwwc.house.gov/international_relations/109/kru021506.pdf (retrieved July 12, 2006).

[96] For the blog of Nina Wu, sister of Wu Hao, see http://spaces.msn.com/wuhaofamily/ ; for the blog of Hu Jia’s wife, Zeng Jinyan, see: http://spaces.msn.com/zengjinyan/ (both retrieved July 16, 2006).

[97] Original Chinese entry at http://wuhaofamily.spaces.msn.com/blog/cns!4004C8EDDE5C40F3!184.entry?_c=BlogPart; English translation at http://ethanzuckerman.com/haowu/?p=5228 (both retrieved July 12, 2006).

[98] Blogger Nancy Yinwang recently posted a comment on Nina Wu’s blog (at http://spaces.msn.com/wuhaofamily/blog/cns!4004C8EDDE5C40F3!346.entry?_c11_blogpart_blogpart=blogview&_c=blogpart#permalink) to announce that her blog (http://spaces.msn.com/nancy-yingwang) had been deleted. Translation at http://www.globalvoicesonline.org/2006/05/11/china-msn-censors-another-b... (retrieved July 14, 2006).

[99] “MSN Spaces rated the leading blog service provider in China,” People’s Daily Online, December 20, 2005 [online], http://english.people.com.cn/200512/20/eng20051220_229546.html (retrieved July 12, 2006).

[100] Clive Thompson, “Google’s China Problem,” New York Times Magazine.

[101] Michael Anti, “Wode taidu: Guanyu weiruan shijian he meiguo guohui keneng de lifa,” Anti Guanyu xinwen he zhengzhi de meiri sikao (Anti’s blog on Blog-city.com), January 14, 2006, http://anti.blog-city.com/1603202.htm; translation by Roland Soong at EastSouthWestNorth, January 15, 2006 [online], http://www.zonaeuropa.com/20060115_2.htm (both retrieved July 21, 2006).

[102] Chiu Yung, “Bushi MSN kechi, shi women diren yi deng,” Chiu Yung’s Web, January 4, 2006 [online], http://www.cantonline.com/index.php?op=ViewArticle&articleId=253&blogId=... (retrieved July 12, 2006).

[103] About the research center see “Microsoft launches Search Technology Center in China,” CNET News.com, October 28, 2005, http://news.com.com/Microsoft+launches+Search+Technology+Center+in+China... (accessed July 12, 2006). About the beta search launch see EricWan, “MSN Launches Chinese Search Beta,” Pacific Epoch, January 6, 2006 [online], http://www.pacificepoch.com/newsstories/50283_0_5_0_M/ (retrieved July 12, 2006); and “Beta Version of Chinese MSN Search Available,” China Net Investor reproducing Shanghai Times, January 15, 2006 [online], http://china-netinvestor.blogspot.com/2006/01/beta-version-of-chinese-ms... (retrieved July 12, 2006).

[104] Declan McCullagh, “No booze or jokes for Googlers in China,” CNET News.com, January 26, 2006 [online], http://news.com.com/What+Google+censors+in+China/2100-1030_3-6031727.htm... (retrieved July 12, 2006).

[105] The explanatory page is on MSN’s Chinese search website at http://beta.search.msn.com.cn/docs/help.aspx?t=SEARCH_CONC_AboutSearchRe... For an example of a search result containing censorship notification see http://beta.search.msn.com.cn/results.aspx?q=高智晟&FORM=QBHP. For an example of a clearly censored search result without any block notification message see http://beta.search.msn.com.cn/results.aspx?q=天安门屠杀&FORM=QBHP (all retrieved July 12, 2006).

[106] Google Corporate Information, "Our Philosophy, No. 6: You can make money without doing evil," [online], http://www.google.com/intl/en/corporate/tenthings.html (retrieved July 27, 2006).

[107] Eric Schmidt, “Let more of the world access the internet,” The Financial Times, May 21, 2006.

[108] “Google defends cooperation with China: Unveil Chinese language brand name: ‘Gu Ge’ or ‘Valley Song’,” Associated Press, April 12, 2006.

[109] “Google to Open Research and Development Center in China,” Google corporate news release, July 19, 2006 [online], http://www.google.com/press/pressrel/rd_china.html (retrieved July 12, 2006). “Google Launches New Japanese, Chinese, and Korean Search Services,” Google corporate news release, September 12, 2000 [online], http://www.google.com/press/pressrel/pressrelease34.html (retrieved July 12, 2006).

[110] Jason Dean, “As Google Pushes into China, It Faces Clash With Censors,” Wall Street Journal, December 16, 2005 [online], http://online.wsj.com/article/SB113468633674723824.html (retrieved July 16, 2006).

[111] OpenNet Initiative, “Google Search & Cache Filtering Behind China’s Great Firewall,” Bulletin 006, August 30, 2004 [online], http://www.opennetinitiative.net/bulletins/006/ (retrieved July 12, 2006).

[112] For further explanation of the Google cache see http://www.google.com/help/features.html#cached. For an example of the Google cache for a Human Rights Watch webpage on China see: http://64.233.187.104/search?q=cache:eVMz-MuvpOMJ:www.hrw.org/asia/china... (both retrieved July 12, 2006).

[113] OpenNet Initiative, “Google Search & Cache Filtering Behind China’s Great Firewall.”

[114]“China, Google News and source inclusion,” Google Blog, September 27, 2004, http://googleblog.blogspot.com/2004/09/china-google-news-and-source-incl... (retrieved July 12, 2006).

[115] OpenNet Initiative, “Google.cn Filtering: How It Works,” blog, January 25, 2006, http://www.opennetinitiative.net/blog/?p=87 (retrieved July 12, 2006).

[116] Clive Thompson, “Google’s China Problem,” New York Times Magazine.

[117] Danny Sullivan, “Google Created EvilRank Scale To Decide On Chinese Censorship,” Search Engine Watch, January 30, 2006 [online], http://blog.searchenginewatch.com/blog/060130-154414 (retrieved July 12, 2006).

[118]Andrew McLaughlin, “Google In China,” Google Blog, January 27, 2006, http://googleblog.blogspot.com/2006/01/google-in-china.html (retrieved July 12, 2006).

[119] For an explanation of Google’s code of conduct see Google’s official investor website at http://investor.google.com/conduct.html (retrieved July 12, 2006).

[120] McLaughlin, “Google In China,” Google Blog.

[121] Hundreds of tests by one of this report’s authors in Beijing and Shanghai in November 2005 over a ten-day period from a variety of locales did not reflect the same level of difficulty accessing Google.com on Chinese ISPs. Numerous Chinese working in the IT industry expressed skepticism at Google’s claim based on their own experiences.

[122] McLaughlin, “Google in China,” Google Blog.

[123]See for example http://www.google.com/search?q=seven+wonders+of+india&btnG=Search&hl=en&... (retrieved July 12, 2006).

[124] Ibid. The link is to http://www.chillingeffects.org/dmca512/show.cgi?NoticeID=805 (retrieved July 12, 2006).

[125]For an example in English see http://www.google.de/search?hl=en&q=www.jewwatch.com&btnG=Google+Search; and for an example in French see http://www.google.fr/search?hl=fr&lr=&sa=G&q=%22www.jewwatch.com%22 (both retrieved July 12, 2006). ChiilingEffects.org is a U.S. non-profit organization that has become the national online clearing house for documenting search engine take-down requests.

[126] For a recent German example see http://www.chillingeffects.org/international/notice.cgi?NoticeID=3917 (retrieved July 12, 2006).

[127] For more on this issue see Bill Thompson, “The billblog: Google censoring web content,” BBC News, October 25, 2002 [online], http://news.bbc.co.uk/1/hi/technology/2360351.stm; Jonathan Zittrain and Benjamin Edelman, Berkman Center for Internet and Society, “Localized Google search result exclusions,” October 26, 2002 [online], http://cyber.law.harvard.edu/filtering/google/; Seth Finkelstein, “Google Censorship - How It Works,” Sethf.com, March 10, 2003, http://sethf.com/anticensorware/general/google-censorship.php; and Philipp Lenssen, “Sites Google Censors,” Google Blogscoped, January 25, 2005, http://blog.outer-court.com/archive/2005-01-15-n50.html (all retrieved July 12, 2006).

[128] “Testimony of Google Inc. before the Subcommittee on Asia and the Pacific, and the Subcommittee on Africa, Global Human Rights, and International Operations” given by Eliot Schrage, vice president, Global Communications and Public Affairs, Google Inc., U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006 [online], http://wwwa.house.gov/international_relations/109/sch021506.pdf, and http://googleblog.blogspot.com/2006/02/testimony-internet-in-china.html (both retrieved July 12, 2006).

[129] Ibid.

[130] Ibid.

[131] Xiao Qiang, “Google taijian ban jinri fabu,” Zhengweekly blog, January 25, 2006, http://zhengweekly.blogbus.com/logs/2006/01/1860720.html, published in English-translation as “Chinese bloggers: GOOGLE Eunuch Version published today,” China Digital Times, January 25, 2006 [online], http://chinadigitaltimes.net/2006/01/chinese_bloggers_google_eunuch_vers... (both retrieved July 12, 2006).

[132] Clive Thompson, “Google’s China Problem,” New York Times Magazine.

[133] Xiao Quiag, “Google taijian ban jinri fabu” (”Google Eunuch Version published today”), Zhengweekly blog/China Digital Times.

[134]Human Rights Watch interviews with Internet users in China who requested anonymity.

[135] Andrew Lih, “Google access update,” andrew lih blog, June 4, 2006, http://www.andrewlih.com/blog/2006/06/04/google-access-update/ (retrieved July 16, 2006)

[136]Mure Dickie, “Beijing’s censors accused of disrupting Google.com,” Financial Times, June 8, 2006 [online], http://news.ft.com/cms/s/bbc6dabe-f69d-11da-b09f-0000779e2340.html (retrieved July 12, 2006).

[137]Reporters Sans Frontières, “Google.com accessible again inside China,” June 9, 2006 [online], http://www.rsf.org/article.php3?id_article=17936 (retrieved July 12, 2006).

[138]See “Tietu bu shuohua,” keepwalking blog, June 2, 2006, http://blog.donews.com/keepwalking/archive/2006/06/01/898146.aspx for what is believed to be the original. For an English-language blog post about the phenomenon see Rebecca MacKinnon, “Chinese bloggers fight Google censorship with voodoo...,” RConversation.com, June 7, 2006, http://rconversation.blogs.com/rconversation/2006/06/chinese_blogger.htm... (both retrieved July 12, 2006).

[139] “Chinese Search News Roundup,” China Web 2.0 Review, June 7, 2006 [online], http://www.cwrblog.net/203/chinese-search-news-roundup.html (retrieved July 12, 2006).

[140] See the Google China blog at http://www.googlechinablog.com/ (retrieved July 12, 2006).

[141] “Wo wei shenme juede google de heiban bao meijin toule,” Herock Post, June 5, 2006 [online], http://herock.net/archives/000183.html (accessed July 12, 2006).

[142] “Google ‘compromised principles’ over China,” Associated Press reproduced in Guardian Unlimited, June 7, 2006 [online], http://www.guardian.co.uk/china/story/0,,1792383,00.html (retrieved July 12, 2006).

[143] Ministry of Foreign Affairs of the PRC, “Foreign Ministry Spokesman Liu Jianchao’s Regular Press Conference on 8 June 2006,” June 9, 2006 [online], http://www.fmprc.gov.cn/eng/xwfw/s2510/t257246.htm (retrieved July 12, 2006).

[144] Keso, “Google de zhongguo nanti,” blog, Playin’ with IT, June 9, 2006, http://blog.donews.com/keso/archive/2006/06/09/909077.aspx (retrieved July 12, 2006).

[145] Ibid.

[146] “TOM Online, Skype announce joint venture in China,” Skype blog, September 5, 2005, http://www.skype.com/company/news/2005/skype_jointventure.html (retrieved July 12, 2006); see also John Blau, “Skype, Tom Online to launch Chinese joint venture,” InfoWorld, September 6, 2005 [online], http://www.infoworld.com/article/05/09/06/HNskypechinaventure_1.html (retrieved July 12, 2006).

[147] Alison Mashland, “Skype says texts are censored by China,” Financial Times, April 18, 2006 [online], http://news.ft.com/cms/s/875630d4-cef9-11da-925d-0000779e2340.html (retrieved July 12, 2006).

[148] Ibid.

[149] Isaac Mao, comment posted on April 21, 2006, in response to Jaanus Kase, “Comments about Skype chat text filtering in China,” Skype blog, April 19 2006. http://share.skype.com/sites/en/2006/04/comments_about_skype_chat_text.h... (retrieved July 12, 2006).

[150] Ibid.

[151] Comment posted by Jaanus Kase on May 22, 2006 in response to Rebecca MacKinnon, “Skype ignores users concerned about China censorship,” RConversation.com, May 21, 2006, at: http://rconversation.blogs.com/rconversation/2006/05/skype_ignores_u.htm... (retrieved July 12, 2006).

[152] Nart Villeneuve, “Tom-Skype Filtering in China,” blog, Internet Censorship Explorer (ICE), June 15, 2006 [online], http://ice.citizenlab.org/?p=219 (retrieved July 12, 2006).

V. Company, Government, Investor and Other Responses

1. Efforts toward a voluntary Industry Code of Conduct

Since the February 2006 congressional hearing, an academic working group from the Berkeley China Internet Project of the Graduate School of Journalism of the University of California at Berkeley (BCIP); the Berkman Center for Internet & Society at Harvard Law School; and the Oxford Internet Institute at Oxford University have been working to draft a globally applicable corporate code of conduct, plus policy recommendations to facilitate the fullest possible support for such standards by governments, international organizations, and trade bodies. The Center for Democracy and Technology is also facilitating discussions about a code of conduct between academics, activists, think-tanks, and representatives of some of the companies named in this report. Details of these codes are still under development and have yet to be announced publicly.¹⁵³

The reason to establish such a code, or standards and practices, is to seek collective ways to find the ability to resist demands for information or technology that violate fundamental human rights. These standards and practices should transcend the relationship of individual companies to any given market, therefore giving the entire industry collective strength––and preventing the kind of “race to the bottom” recently witnessed in China.

These standards and practices should serve not only as a catalyst and compass for corporate responsibility, but also as a buffer for companies operating in a political environment where freedom of expression is restricted. Such defense mechanisms should include all possible means, from transparency to non-collaboration and even resistance, to help these companies avoid aiding or colluding with human rights abusers.

While many of the principles in a meaningful code of conduct are the same as those raised in currently proposed legislation (discussed below), it is important to have these same principles in each, since each reinforces the other, one may be established or signed into law before the other, and it also remains to be seen whether the final version of legislation will fully include the following points, all of which we believe to be an essential minimum:

a. Maximize user data protection:

Do not host personally-identifying user data in jurisdictions of the People’s Republic of China, where political speech is routinely treated as a crime by the legal system.

Retain as little user data as possible for the shortest amount of time possible.

Substantially improve user education about the company’s data retention practices.

Greatly improve disclosure to users regarding the ways in which their data will be shared with third parties. Companies should include text on all user log-in pages, written in clear language and displayed in a prominent place on the page, informing the user of how and where their data is retained and under what conditions it may be shared with governments (making clear which ones if the company is bound to share the data with more than one government in order to be legally compliant) as well as other third parties. Obscure clauses in user agreements and terms of service are not sufficient or ethically adequate.

Build maximum encryption and privacy protection functions into the tools offered to Chinese users and educate users about their existence and uses. Companies should make their websites and email available to users to allow for secure communication via secure protocols such as https (an encrypted version of the Hypertext Transfer Protocol “http,” the primary method used to convey and transfer information on the World Wide Web), IMAPS (a secure version of the Internet Message Access Protocol that allows a local client to access email on a remote server), and POPS (encrypted version of the Post Office Protocol commonly used by email services so that users can retrieve email from a remote server).

b. Respect and uphold a rights-based rule of law:

Do not initiate censorship that has not been specifically ordered in writing by the Chinese government via a legally binding process. Businesses should not be forced to shoulder the moral burden and financial cost of political censorship. That burden, and the moral responsibility that goes along with it, should be shifted back to the Chinese government, where it belongs.

Do not comply with oral, undocumented requests for censorship. This includes manual deletion of content in addition to the filtering of it. Challenge in court every order to censor political speech. Do not comply without a court order.

The Chinese Foreign Ministry spokesman has declared that foreign Internet companies must follow Chinese law.¹⁵⁴ It follows that Internet companies have the right to request clear and transparent legal procedures before agreeing to removal or censoring of any content so that they can be clear about what laws they are being asked to follow. Such a formal legal process would include: 1) Asking each Chinese government agency with jurisdiction over content to designate a formal point of contact on content censorship issues; and 2) Insisting on a piece of paper to document content-related requests before a company is obligated to take down or filter any content.

Work with the U.S. Trade Representative, the European Union trade office, the World Trade Organization, the Organisation for Economic Co-operation and Development (OECD), and other national and international trade bodies to push for regulatory change in China, the goal being a fair business playing field that promotes honesty to the user and respect for the user’s rights.

None of these goals are inconsistent with goals and aspirations recently expressed by Chinese government officials.

c. Maximize service integrity and Chinese user trust:

Clearly and visibly inform users that they have complied with legally binding government requests to filter or otherwise censor content that the user is trying to access. Thus, if a user cannot view a webpage due to the company’s compliance with a government request, the user must be informed that this is the case. In other words, companies must pledge honesty to the user, and not engage in such dishonest practices as triggering a browser error page that implies technical problems or user error, when in fact the real reason is censorship.

To the maximum extent legally possible, inform the user about who is responsible (which corporate entity and department, which government ministry and department) for the filtering or censorship of each piece of content the user is attempting to access or post to the web.

Provide an “appeals process” by which a user can report the filtering or censorship of what she believes to be lawful speech. This process should provide the user with the ability to appeal anonymously and securely if she so wishes.

d. Record-keeping for greater accountability and user trust:

Keep written documentation of exactly what terms and web addresses they are asked to censor by the Chinese government. This documentation should include a precise explanation of exactly what local law is being violated by the use of each word or phrase or URL, as well as precise information about which government office or authority ordered the filtering of each word, phrase, or URL. This documentation should be made publicly available. If such detailed documentation is truly impossible due to lack of government cooperation, companies should agree that they will strive to provide the maximum amount of information possible about why each search result is filtered, why each specific phrase is blocked from posting online, etc.

e. Annual reporting:

All signatories should commit to produce an annual report detailing exactly what they have done to live up to the above pledge. These reports would be submitted to a nongovernmental organization that would compile and publish each signatory’s report on one website and in one printed volume for public consumption.

2. Legislation

Even if a code of conduct is adopted by key companies, Human Rights Watch believes that it is unlikely to be effective without accompanying legislation. First, some companies may sign up to a code and then ignore it. The key “sanction” of a voluntary code is disclosure of non-compliance and public opprobrium. Yet despite public criticism, being hauled before the U.S. Congress, and the threat of legislation, thus far companies have failed to change their practices. It is, therefore, not clear how a voluntary code would have the teeth to actually change behavior without accompanying legislation to impose real consequences for non-compliance.

The Global Online Freedom Act of 2006 was introduced in the U.S. House of Representatives on February 16, 2006, by New Jersey Republican Christopher Smith, co-sponsored by California Democrat Tom Lantos. It was amended and sent to the full International Relations Committee on June 22, 2006.¹⁵⁵ The proposed legislation includes the following measures:

A U.S. Office of Global Internet Freedom would be established under the State Department.

U.S. companies (defined as any company listed on a U.S. stock exchange) would be required by law to document and report all political and religious censorship conducted in designated “Internet-restricting countries” (as designated by the President).

U.S. companies would be prohibited from storing personally-identifiable user information on servers inside China and other “Internet-restricting countries.”

U.S. companies would only be able to hand over such user data to “Internet-restricting” governments in cases determined to be acceptable by the U.S. Department of Justice.

Transparency of Internet censorship would be achieved by requiring companies to report to the U.S. Office of Global Internet Freedom with a list of all data and content blocked or removed from their service at the host government’s request.

Victims and family members of people who are jailed or otherwise harmed due to U.S. company violation of the Act would have the right to sue the transgressing company in a U.S. court of law.

A feasibility study would examine the tightening of export controls to “Internet restricting countries.”

Human Rights Watch believes that barring a dramatic change of behavior by Internet companies doing business in China, legislation will be necessary. In urging the adoption of legislation, we are mindful that companies doing business in China did not set out to become censors or facilitate the arrest and imprisonment of Internet users. We understand that companies feel caught in a conflict between the demands of a repressive government in China and the rights of Internet users. Yet the principled path is clear, and it lies in taking all steps possible to protect basic rights to freedom of expression, information, and liberty. Thus far, companies have signally failed to do so. Yet at the same time some, such as Microsoft’s Bill Gates––who is famously opposed to regulation––have even urged Congress to regulate to create a level playing field among companies so they can resist caving in individually to whatever demands the Chinese authorities make¹⁵⁶

The goal of legislation should not be to prevent U.S. or other international companies from operating in China. Rather, the goal should be for companies in the business of the dissemination of information and ideas to adhere to these goals in China, not to participate or facilitate censorship or the arrest of individuals involved in peaceful expression, and to set a strong example of ethical corporate behavior. Human Rights Watch has worked with and consulted a variety of experts about what provisions should be in legislation of this kind. Many of these are in the Global Online Freedom Act, but others are not, and some provisions of the bill would be stronger with some changes.

Human Rights Watch urges the following principles as relevant to legislating on corporate responsibility to uphold human rights:

1. UNIVERSALITY: Legislation should be universal in nature, limited not specifically to the Chinese government or listed governments with exceptionally poor records, but rather targeted at all acts of political censorship.

2. NO USER DATA IN REPRESSIVE JURISDICTIONS:Companies should not be allowed to host personally-identifying user data in jurisdictions of the People’s Republic of China, so that they avoid having to comply with legally binding orders to turn over such information in order to prosecute, threaten, or harass individuals engaged in internationally protected speech. More universally, companies should be forbidden by law from hosting personally-identifying user data in jurisdictions where the courts have a well-documented track record of convicting people for peaceful expression of political or religious views.

3. CLEAR WARNINGS TO USERS OF RISKS: Companies must include text on all user log-in pages, written in clear language and displayed in a prominent place on the page, informing the user of how and where their data is retained and under what conditions it may be shared with governments (making clear which ones if the company is bound to share the data with more than one government in order to be legally compliant) as well as other third parties.

4. COMPANIES NOT TO ACT AS VOLUNTARY CENSORS OF PROTECTED SPEECH: Companies have no business making decisions about what political or religious content should or should not be censored. Companies should be prohibited from taking actions on their own to censor political or religious speech. Such proactive censorship is usually done in anticipation of government demands or preferences, without a legally binding order to remove specific material having been received. Censorship carried out proactively as the result of testing to identify what material the government is censoring and then taking action on this information in absence of any specific, legally binding court order, should be prohibited. Companies should also be prohibited from complying with oral, undocumented requests from the Chinese authorities for censorship of political and religious speech. This includes manual deletion of content in addition to the filtering of it. Companies should be required to challenge every order to censor non-violent political and religious speech in the Chinese courts. Companies should be prohibited from complying with an order unless the order is made by a court. Acting in this way will help with China’s often stated goal of building the rule of law.

5. USER NOTIFICATION WHEN GOVERNMENT HAS FORCED A COMPANY TO CENSOR PEACEFUL POLITICAL AND RELIGIOUS SPEECH: Companies should be required to clearly and visibly inform users that they have complied with legally binding government orders to censor content that the user is trying to access. Thus, if a user cannot view a webpage due to the company’s compliance with a government request, the user must be informed that this is the case. To the maximum extent legally possible, companies must inform the user about who is responsible (which corporate entity and department, which government ministry and department) for the censorship of each piece of content he or she is attempting to access or post to the web. Companies must also provide an “appeals process” by which a user can report the filtering or censorship of what the user believes to be lawful speech. This process must provide the user with the ability to appeal anonymously and securely if she so wishes.

6. FULL DOCUMENTATION: Companies must be required to keep written documentation of which terms and web addresses they are asked to censor by the Chinese government. This documentation should include which requests were complied with and rejected, and in accordance with what laws or regulations. It should contain explanation of exactly what local law is being violated by the use of each word or phrase or URL, as well as precise information about which government office or authority made the legally binding order to block or remove each word, phrase, or URL. This documentation should be made publicly available. If such detailed documentation is truly impossible due to lack of government cooperation, companies must provide the maximum amount of information possible about why each search result is filtered, why each specific phrase is blocked from posting online, etc.

7. ANNUAL REPORTING: Companies should be required to produce an annual report detailing exactly what they have done to comply with the legislation. These reports would be submitted to the governing jurisdiction of the legislation and posted on government and company websites.

8.    FINES AND VICTIMS’ RIGHT TO COMPENSATION: Where companies violate laws regulating how Internet companies do business with governments that abuse human rights, Companies should also be subject to significant fines by the relevant jurisdiction. Victims and family members of people who are jailed or otherwise harmed due to company violation of the law should also have the right to sue the company in a country to which jurisdiction it is subject.

9.    GLOBAL: Legislation should not just be adopted by the United States. The European Union and its members, Japan, and other democracies with companies doing business in this field in China (and in other countries with a poor record on human rights) should also adopt legislation. Political censorship of the Internet is a global problem and should be treated as such.

3. U.S. Executive Branch actions

On February 14, 2006, the U.S. State Department established a Global Internet Freedom Task Force. In his congressional testimony the following day, Ambassador David Gross pointed out that the Chinese government’s suppression of political and religious speech on the Internet runs contrary to its own international commitments. The task force has since had two meetings, with no discernible results or plans.

At the United Nations World Summit on the Information Society in Tunis in November 2005, China was a signatory to the Tunis Commitment, which reaffirmed the 2003 Geneva Declaration “that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The Tunis Commitment further stated that “freedom of expression and the free flow of information, ideas and knowledge are essential for the Information Society and beneficial to development.”¹⁵⁷ Regarding U.S. companies, Ambassador Gross observed:

We applaud recent statements that they recognize the importance of acting responsibly in this very difficult environment and see the value of cooperating with each other to improve the situation of the Chinese people. We have encouraged such cooperation, and we challenge our companies to leverage their global leadership by developing and implementing a set of meaningful best practices. We want to work with our companies, but the State Department can advocate more effectively for Internet freedoms when U.S. companies conduct themselves in a clear and consistent manner.¹⁵⁸  

In an effort to determine and facilitate next steps, the Global Internet Freedom Task Force has convened separate meetings with representatives from business, human rights organizations, and academia. No further actions have yet been made public.

4. European Union actions

On July 7, 2006, the European Parliament adopted a resolution condemning government-imposed restrictions on Internet content “which conflict with freedom of expression,” stressing “that freedom of expression is a key value shared by all EU countries and that concrete steps must be taken to defend it.”¹⁵⁹ According to a press release issued by the European Parliament:

MEPs [Members of the European Parliament] welcome the introduction by US legislators in February 2006 of a draft law, the Global On-line Freedom Act, aimed at regulating the activities of internet businesses when they operate in repressive countries.

They believe the EU too should stand up for the rights of internet users. They therefore call on the Council and Member States 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.

The Commission and Council are also asked to take the following steps:

to press the authorities of countries that have imprisoned journalists and others for expressing views on the internet to release them immediately;

to draft a voluntary code of conduct limiting the activities of companies in repressive countries;

to take into account, when considering EU assistance programs with third countries, the need for unhindered internet access by the citizens of those countries.¹⁶⁰

Human Rights Watch applauds this step toward creating and enforcing truly global corporate standards of behavior. We call on the European Commission and Council to implement the Parliament’s recommendations—whose goal is to protect the universally recognized right to freedom of speech for all the world’s people.

5. Investor pledge

In November 2005 twenty-five U.S., Canadian, Australian, and European investment funds managing around U.S.$21 billion in assets signed a pledge stating that “respect for freedom of expression is a factor we consider in assessing a company’s social performance,” and committing to “monitor the activities of Internet sector companies in repressive countries to evaluate their impact on access to news and information.” The companies also pledged to support shareholder resolutions at company annual meetings “favorable to freedom of expression,” to call on Internet businesses to make public ethical codes aimed at upholding freedom of speech worldwide, and to “[c]all on Internet businesses to make information public that will allow investors to assess how each firm is acting to ensure that its products and services are not being used to commit

human rights violations.”¹⁶¹ (See page 79 for full statement.) According to Reporters Sans Frontières, “the statement is above all targeted at companies such as Yahoo!, Cisco Systems and Microsoft that help the Chinese authorities censor the Internet or operate online surveillance systems.”¹⁶² This was a powerful message to companies that socially-responsible investors were very concerned about the issue and expected companies to change their practices. It showed that scrutiny and criticism of the companies was growing since socially-responsible investors had added their voice to criticisms of NGOs, the press, the public, and the U.S. Congress.

Joint Investor Statement on Freedom of Expression and the Internet

As investors and research analysts, we recognize that our investment decisions have an impact on human rights around the world. We are therefore committed to using the tools at our disposal to uphold human rights world wide as outlined in the United Nations Universal Declaration of Human Rights (UDHR), including freedom of opinion and expression, freedom of assembly and association, and security of persons.

The growth of the Internet offers considerable opportunities for global broad-based wealth creation. Companies involved in providing Internet services and technology are playing a leading role in building global communities and sharing knowledge. We believe that government action to censor, monitor, isolate and jail Internet users for exercising basic human rights outlined in the UDHR threatens the ultimate realization of these benefits. We believe these actions also present significant barriers to growth for Internet sector businesses, which depend on a broadly connected, free Internet.

To help advance freedom of expression, the undersigned:

Reaffirm that freedom of expression is a universal human right that companies have an obligation to respect throughout their worldwide operations, and, in particular, in countries with a history of serious and widespread human rights violations;

Reaffirm that Internet sector businesses have a particular responsibility in this domain for a number of reasons, including the following:

            Their long-term success depends on a broadly connected Internet that is free of       censorship; and

            Millions of people depend on their products and services for reliable access to        news and information;

Recognize that, according to numerous and credible sources, a number of countries throughout the world do not tolerate public dissent and monitor and control citizens’ access to the Internet as a means of suppressing freedom of expression;

Recognize that some businesses help authorities in repressive countries to censor and mount surveillance of the Internet, and others turn a blind eye to the use made of their equipment;

State that respect for freedom of expression is a factor we consider in assessing a company’s social performance;

Announce that we will monitor the operations of Internet businesses in repressive regime countries to evaluate their impact on access to news and information;

Commit ourselves to supporting, at annual general meetings of publicly listed companies, shareholder resolutions that we believe are favorable to freedom of expression or otherwise promote the principles of this declaration;

Call on Internet businesses to adopt and make public ethical codes stressing their commitment to freedom of expression and defining their obligations to uphold these freedoms; and

Call on Internet businesses to make information public that will allow investors to assess how each firm is acting to ensure that its products and services are not being used to commit human rights violations (including, products and services that enable Internet censorship, surveillance and identification of dissidents). 

[153] “Statement by Xiao Qiang, Director, China Internet Project, The Graduate School of Journalism, University of California at Berkeley, to the House International Relations Committee, Subcommittee on Africa, Global Human Rights and International Operations,” U.S., House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006 [online], http://wwwc.house.gov/international_relations/109/qia021506.pdf (retrieved July 12, 2006).

[154] Ministry of Foreign Affairs of the PRC, “Foreign Ministry Spokesman Liu Jianchao’s Regular Press Conference on 8 June 2006,” June 9, 2006 [online], http://www.fmprc.gov.cn/eng/xwfw/s2510/t257246.htm (retrieved July 12, 2006).

[155] For text of the latest amended version of the Bill, plus an account of all action related to this legislation, see http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.04780 (retrieved July 12, 2006).

[156] In February 2006 Gates told the Financial Times: “I think something like the Foreign Corrupt Practices Act has been a resounding success in terms of very clearly outlining what companies can't do and other rich countries largely went along with that. That's a great thing. I think - [it] may be that idea [will] come along.” Richard Waters, "Transcript of Interview with Bill Gates," Financial Times (FT.Com), February 15, 2006 (retrieved July 27, 2006).

[157] “Testimony of Ambassador David A. Gross, U.S. Coordinator for International Communications and Information Policy Bureau of Economic and Business Affairs, U.S. Department of State,” U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006 [online], http://wwwa.house.gov/international_relations/109/gro021506.pdf (retrieved July 12, 2006); “Tunis Commitment” WSIS-05/TUNIS/DOC/7-E, November 18, 2005 [online], http://www.itu.int/wsis/docs2/tunis/off/7.html (retrieved July 16, 2006); “The Geneva Declaration of Principles and Plan of Action,” December 12, 2003 [online], http://www.itu.int/wsis/documents/doc_multi-en-1161/1160.asp (retrieved July 16, 2006).

[158]Ibid.

[159] “Democracy and human rights: Somalia, Mauritania and the internet,” European Parliament press release, June 7, 2006 [online], http://www.futureofeurope.parlament.gv.at/news/expert/infopress_page/015... (retrieved July 12, 2006).

[160] Ibid.

[161] Reporters Sans Frontieres, "Investment funds and analysts to monitor what Internet firms do in repressive countries," November 7, 2005 [online], http://www.rsf.org/article.php3?id_article=1553 (retrieved July 12, 2006).

[162] See http://www.rsf.org/article.php3?id_article=15530 (retrieved July 12, 2006).

VI. Recommendations

To Internet companies working in China

• Lobby and attempt to convince the Chinese government and its officials to end political censorship of the Internet.
• Develop and adhere to a code of conduct that prohibits participation in or facilitation of infringements of the right to free expression, information, privacy, association, or other internationally recognized human rights (see Section V, Part 2).
• Never turn over personal user information if it could lead to prosecution for protected expression. In order to minimize conflicts with Chinese law, companies should not store such data in China.
• Never censor any material unless required by legally binding and written government request. The practice of proactively seeking and censoring search terms, words or phrases in blogs, chatrooms, online bulletin boards, and websites, as well as entire website addresses, crosses the line from being censored to becoming the censor, and must end immediately. There is an ethical difference between being censored and being the censor.
• Use all legal means to resist demands for censorship of searches, blogs, web addresses, etc. Companies should only comply with such demands if they are made via legally binding, documentable procedures and the company has exhausted all reasonable legal means to resist them.
• Document all cases in which content has been censored in compliance with legally binding government demands and make this information publicly available.
• Make websites and email available to users to allow for secure communication via secure protocols such as https (an encrypted version of the Hypertext Transfer Protocol “http,” the primary method used to convey and transfer information on the world wide web), IMAPS (a secure version of the Internet Message Access Protocol that allows a local client to access email on a remote server), and POPS (encrypted version of the Post Office Protocol commonly used by email services so that users can retrieve email from a remote server).

 

To investors in Internet companies

• Press for ethical company practices and respect for users’ human rights on a global scale.

• Insist on code of conduct and support legislation—and compliance with it—if companies fail to adopt and truly follow a code.

To International organizations including the WTO, OECD, and UN

• Make a full study of the ways in which non-transparent censorship practices in countries such as China contribute to the lack of a level business playing field, and the extent to which censorship can be considered a barrier to trade.

To activists, human rights groups, nongovernmental organizations, charitable foundations, and other groups concerned with promoting global freedom of speech online

• Work in concert with socially responsible businesses to develop technologies that will maximize privacy, ensure anonymity, and enable Internet users around the globe to circumvent Internet censorship, filtering, and blocking.
• Conduct independent research and documentation of the ways in which companies are or are not complying with legislation and/or codes of conduct.
• Provide clearing houses of information through which users can better inform themselves about the ways in which the products and services they use may be limiting their universally recognized right to free speech and privacy.

To users of the services and products of Internet companies

• Make it known that the way users are treated in China and elsewhere is an indicator of companies’ respect for users’ rights globally.
• Take companies’ human rights standards into account when deciding which products and services to purchase or use.

To the United States, European Union, Japan, and other countries with Internet-related companies operating in China

• Support legislation of company behavior as described in Section V, Part 3 above, to regulate the conduct of such companies and prohibit their participation in or facilitation of infringements of the right to free expression, information, privacy, association, or other internationally recognized human rights.
• Press companies to adopt a principled and effective code of conduct.
• Press China to end all political censorship of the Internet and to stop pressuring companies to act as censors.
• Press China to end the use of the criminal law against individuals on the basis of speech that would otherwise be protected under international law, and to release all such Internet prisoners.

To the Chinese Government

• End all censorship of internationally protected expression on the Internet.
• Cease putting pressure on or ordering companies to engage in censorship.
• End all criminal actions against individuals using the Internet for peaceful political and religious expression.
• Create formal, well-documented and legally transparent processes by which content censorship requests are made to companies, formal written procedures by which companies can challenge or respond to censorship requests, and formal, transparent legal procedures by which members of the Chinese public can safely and fairly challenge the legality of any act of censorship without fear of reprisal.

Acknowledgements

Rebecca MacKinnon was the principal researcher and editor of this report, which was prepared for the Asia Division of Human Rights Watch. It was also edited by Brad Adams, Asia division executive director; Sophie Richardson, Asia division deputy director; Arvind Ganesan, director of the Business and Human Rights division; and Ian Gorvin, consultant to the Program office. Dinah PoKempner, general counsel for Human Rights Watch provided legal review. Valuable contributions were made by Sophie Beach, Nicholas Bequelin, Xiao Qiang and Mickey Spiegel. Jo-Anne Prud'homme, Jonathan Cohen, and Andrea Cottom, associates for the Asia division, provided administrative and technical assistance. Production assistance was provided by Andrea Holley, manager of outreach and public education; Fitzroy Hepkins, mail manager; Veronica Matushaj, photo editor; Jagdish Parikh, online communications content coordinator; and Jose Martinez, production associate.

Human Rights Watch gratefully acknowledges the input and assistance of many friends and colleagues who must remain anonymous.

Appendix

Appendix I: “The words you never see in Chinese cyberspace”

China Digital Times

The words you never see in Chinese cyberspace¹⁶³

By Xiao Qiang :: 2004-08-30, 10:37 PM :: Politics

http://chinadigitaltimes.net/2004/08/the_words_you_n.php

It is an open secret that all Chinese Internet hosting services, including wireless and instant messenger services, filter user communication through key word blocking mechanisms. But overly vague and broad Chinese internet laws and the internet police force never made the forbidden words explicit -- Not until some Chinese hackers located a document within the installation package of QQ instant messaging software. The file contains over one thousand words, most of them in Chinese, which will be blocked by the service. Owned by Tencent, QQ is China’s most popular Instant Messenger service. On a regular basis, tens of millions of users use their service. On one day, March 13, there were more than six million users online using QQ at the same time. Because of its high traffic volume, it is technically much harder to build in the key word filtering mechanism on the server’s end. Instead, Tencent sneaked in a filtering program file in their installation package at the client end. When a client installs the QQ2003 software on their own computer desktop, a program file, called COMToolKit.dll, is automatically included. This file contains all the forbidden keywords, which will be automatically blocked when the client runs QQ. The full list is below.

Recently, some Chinese hackers located this file and released it on the Internet. The censored key words list is commonly used not just for QQ, but also for all websites, BBS and text messaging services. One Internet user did a rough breakdown of the list: About 15 percent of the words are sex related, the rest are all related to politics. About 20 percent of the words are Falungong related, including “师父” (master) and “弟子” (disciple); about 15 percent are names of current officials and their relatives; about 10 percent are words used in the liberal political discourse such as “democracy”, “freedom”, and “dictatorship”; and about 5 percent are related to certain nationalistic issues, such as ”保钓” (defend Diaoyu Island), “俄国边界” (Sino-Russian Border) , “卖国” (selling out the country) etc. About 15 percent of the forbidden words are related to anti-corruption, such as “走私” (smuggling), “公款” (public funds); etc. Other censored words include names of dissidents,writers, and intellectuals, and names of certain foreign publications. Please find the entire list attached here:

From Program Files\Tencent\QQGame\COMToolKit.dll:

bitch

shit

falun

sex

tianwang

cdjp

av

bignews

boxun

chinaliberal

chinamz

chinesenewsnet

cnd

creaders

dafa

dajiyuan

dfdz

dpp

falu

falun

falundafa

flg

freechina

freedom

freenet

fuck

GCD

gcd

hongzhi

hrichina

huanet

hypermart

incest

jiangdongriji

lihongzhi

making

minghui

minghuinews

nacb

naive

nmis

paper

peacehall

playboy

renminbao

renmingbao

rfa

safeweb

sex

simple

svdc

taip

tibetalk

triangle

triangleboy

UltraSurf

unixbox

ustibet

voa

voachinese

wangce

wstaiji

xinsheng

yuming

zhengjian

zhengjianwang

zhenshanren

zhuanfalun

bitch

fuck

shit

三个代表|表 
一党|党 
多党|党 
民主|民 
专政|政 
行房|房 
自慰|慰 
吹萧|萧 
色狼|色 
胸罩|罩 
内裤|裤 
底裤|裤 
私处|私 
爽死|爽 
变态|态 
妹疼|疼 
妹痛|痛 
弟疼|疼 
弟痛|痛 
姐疼|疼 
姐痛|痛 
哥疼|疼 
哥痛|痛 
同房|房 
打炮|炮 
造爱|爱 
性交|性 
性爱|性 
作爱|作 
做爱|做 
操你|操 
日你|日 
日批|日 
日逼|日 
鸡巴|鸡 
我操|操 
操死|操 
乳房|乳 
阴茎|阴 
阳具|阳 
开苞|苞 
肛门|肛 
阴道|阴 
阴蒂|阴 
肉棍|肉 
肉棒|肉 
肉洞|肉 
荡妇|荡 
阴囊|阴 
睾丸|睾 
捅你|捅 
捅我|捅 
插我|插 
插你|插 
插她|插 
插他|插 
干你|干 
干她|干 
干他|干 
妓女|妓 
射精|射 
口交|交 
手淫|淫 
口淫|淫 
屁眼|屁 
阴户|阴 
阴门|阴 
下体|下 
龟头|龟 
阴毛|阴 
避孕套|套 
你妈逼|逼 
大鸡巴|鸡 
性高潮|性 
性虐待|性 
性高潮|性 
大法|法 
弟子|弟 
大纪元|元 
真善忍|忍 
明慧|慧 
大法|法 
洪志|志 
红志|志 
洪智|智 
红智|智 
法轮|轮 
法论|论 
法沦|沦 
法伦|伦 
发轮|轮 
发论|论 
发沦|沦 
发伦|伦 
轮功|功 
轮公|公 
轮攻|攻 
沦功|功 
沦公|公 
沦攻|攻 
论攻|攻 
论功|功 
论公|公 
伦攻|攻 
伦功|功 
伦公|公 
打倒|倒 
民运|运 
六四|四 
台独|独 
王丹|丹 
柴玲|柴 
李鹏|鹏 
天安门|安 
江泽民|泽 
朱容基|基 
朱镕基|朱 
李长春|春 
李瑞环|瑞 
胡锦涛|锦 
魏京生|魏 
台湾独立|湾 
藏独|藏 
西藏独立|藏 
疆独|疆 
新疆独立|疆 
警察|察 
民警|警 
公安|公 
邓小平|邓 
嫖|嫖 
大盖帽|帽 
革命|命 
武警|警 
黑社会|社 
交警|警 
消防队|消 
刑警|刑 
夜总会|夜 
妈个|个 
公款|款 
首长|首 
书记|记 
坐台|台 
腐败|腐 
城管|管 
暴动|暴 
暴乱|乱 
李远哲|哲 
司法警官|司 
高干|高 
高干子弟|弟 
高干子女|女 
人大|大 
尉健行|健 
李岚清|清 
黄丽满|满 
于幼军|军 
文字狱|狱 
宋祖英|英 
天安门|门 
自焚|焚 
骗局|骗 
猫肉|猫 
吸储|储 
张五常|张 
张丕林|丕 
空难|难 
温家宝|温 
吴邦国|邦 
曾庆红|庆 
黄菊|黄 
罗干|罗 
吴官正|官 
贾庆林|庆 
专制|制 
卖淫|淫 
三個代表|表 
一黨|黨 
多黨|黨 
民主|民 
專政|政 
行房|房 
自慰|慰 
吹蕭|蕭 
色狼|色 
胸罩|罩 
內褲|褲 
底褲|褲 
私處|私 
爽死|爽 
變態|態 
妹疼|疼 
妹痛|痛 
弟疼|疼 
弟痛|痛 
姐疼|疼 
姐痛|痛 
哥疼|疼 
哥痛|痛 
同房|房 
打炮|炮 
造愛|愛 
性交|性 
性愛|性 
作愛|作 
做愛|做 
操你|操 
日你|日 
日批|日 
日逼|日 
雞巴|雞 
我操|操 
操死|操 
乳房|乳 
陰莖|陰 
陽具|陽 
開苞|苞 
肛門|肛 
陰道|陰 
陰蒂|陰 
肉棍|肉 
肉棒|肉 
肉洞|肉 
蕩婦|蕩 
陰囊|陰 
睾丸|睾 
捅你|捅 
捅我|捅 
插我|插 
插你|插 
插她|插 
插他|插 
幹你|幹 
幹她|幹 
幹他|幹 
妓女|妓 
射精|射 
口交|交 
屁眼|屁 
陰戶|陰 
陰門|陰 
下體|下 
龜頭|龜 
陰毛|陰 
避孕套|套 
你媽逼|逼 
大雞巴|雞 
性高潮|性 
性虐待|性 
性高潮|性 
大法|法 
弟子|弟 
大紀元|元 
真善忍|忍 
明慧|慧 
大法|法 
洪志|志 
紅志|志 
洪智|智 
紅智|智 
法輪|輪 
法論|論 
法淪|淪 
法倫|倫 
發輪|輪 
發論|論 
發淪|淪 
發倫|倫 
輪功|功 
輪公|公 
輪攻|攻 
淪功|功 
淪公|公 
淪攻|攻 
論攻|攻 
論功|功 
論公|公 
倫攻|攻 
倫功|功 
倫公|公 
打倒|倒 
民運\|運\ 
六四|四 
台獨|獨 
王丹|丹 
柴玲|柴 
李鵬|鵬 
天安門|安 
江澤民|澤 
朱容基|基 
朱鎔基|朱 
李長春|春 
李瑞環|瑞 
胡錦\濤|錦\ 
魏京生|魏 
臺灣獨立|灣 
藏獨|藏 
西藏獨立|藏 
疆獨|疆 
新疆獨立|疆 
警察|察 
民警|警 
公安|公 
鄧小平|鄧 
嫖|嫖 
大蓋帽|帽 
革命|命 
武警|警 
黑社會|社 
交警|警 
消防隊|消 
刑警|刑 
夜總會|夜 
媽個|個 
公款|款 
首長|首 
書記|記 
坐台|台 
腐敗|腐 
城管|管 
暴動|暴 
暴亂|亂 
李遠哲|哲 
司法警官|司 
高幹|高 
高幹子弟|弟 
高幹子女|女 
人大|大 
尉健行|健 
李嵐清|清 
黃麗滿|滿 
於幼軍|軍 
文字獄|獄 
天安門|門 
自焚|焚 
騙局|騙 
貓肉|貓 
吸儲|儲 
張五常|張 
張丕林|丕 
空難|難 
溫家寶|溫 
吳邦國|邦 
曾慶紅|慶 
黃菊|黃 
羅幹|羅 
賈慶林|慶 
專制|制 
賣淫|淫 
八九|八 
八老|八 
巴赫|巴 
白立朴|白 
白梦|白 
白皮书|白 
保钓|保 
鲍戈|鲍 
鲍彤|鲍 
暴乱|暴 
暴政|暴 
北大三角地论坛|北 
北韩|北 
北京当局|北 
北京之春|北 
北美自由论坛|北 
博讯|博 
蔡崇国|蔡 
藏独|藏 
曹长青|曹 
曹刚川|曹 
柴玲|柴 
常劲|常 
陈炳基|陈 
陈军|陈 
陈蒙|陈 
陈破空|陈 
陈希同|陈 
陈小同|陈 
陈宣良|陈 
陈一谘|陈 
陈总统|陈 
程凯|程 
程铁军|程 
程真|程 
迟浩田|迟 
持不同政见|持 
赤匪|赤 
赤化|赤 
春夏自由论坛|春 
达赖|达 
大参考|大 
大法|大 
大纪元|大 
大纪元新闻网|大 
大纪园|大 
大家论坛|大 
大史|大 
大史记|大 
大史纪|大 
大中国论坛|大 
大中华论坛|大 
大众真人真事|大 
戴相龙|戴 
弹劾|弹 
登辉|登 
邓笑贫|邓 
迪里夏提|迪 
地下教会|地 
地下刊物|地 
弟子|弟 
第四代|第 
电视流氓|电 
钓鱼岛|钓 
丁关根|丁 
丁元|丁 
丁子霖|丁 
东北独立|东 
东方红时空|东 
东方时空|东 
东南西北论谈|东 
东社|东 
东土耳其斯坦|东 
东西南北论坛|东 
动乱|动 
独裁|独 
独裁政治|独 
独夫|独 
独立台湾会|独 
杜智富|杜 
多维|多 
屙民|屙 
俄国|俄 
发愣|发 
发轮|发 
发正念|发 
法愣|法 
法抡|法 
法仑|法 
法伦|法 
法轮|法 
法论|法 
法十轮十功|法 
法十轮十功|法 
法谪|法 
法谪功|法 
反封锁技术|反 
反腐败论坛|反 
反攻|反 
反共|反 
反人类|反 
反社会|反 
方励之|方 
方舟子|方 
飞扬论坛|飞 
斐得勒|斐 
费良勇|费 
分家在|分 
分裂|分 
粉饰太平|粉 
风雨神州|风 
风雨神州论坛|风 
封从德|封 
封杀|封 
冯东海|冯 
冯素英|冯 
佛展千手法|佛 
付申奇|付 
傅申奇|傅 
傅志寰|傅 
高官|高 
高文谦|高 
高薪养廉|高 
高瞻|高 
高自联|高 
戈扬|戈 
鸽派|鸽 
歌功颂德|歌 
蛤蟆|蛤 
个人崇拜|个 
工自联|工 
功法|功 
共产|共 
共党|共 
共匪|共 
共狗|共 
共军|共 
关卓中|关 
贯通两极法|贯 
广闻|广 
郭伯雄|郭 
郭罗基|郭 
郭平|郭 
郭岩华|郭 
国家安全|国 
国家机密|国 
国军|国 
国贼|国 
韩东方|韩 
韩联潮|韩 
汉奸|汉 
何德普|何 
何勇|何 
河殇|河 
红灯区|红 
红色恐怖|红 
宏法|宏 
洪传|洪 
洪吟|洪 
洪哲胜|洪 
洪志|洪 
胡紧掏|胡 
胡锦涛|胡 
胡锦滔|胡 
胡锦淘|胡 
胡景涛|胡 
胡平|胡 
胡总书记|胡 
护法|护 
花花公子|花 
华建敏|华 
华通时事论坛|华 
华夏文摘|华 
华语世界论坛|华 
华岳时事论坛|华 
黄慈萍|黄 
黄祸|黄 
黄菊|黄 
黄菊|黄 
黄翔|黄 
回民暴动|回 
悔过书|悔 
鸡毛信文汇|鸡 
姬胜德|姬 
积克馆|积 
基督|基 
贾庆林|贾 
贾廷安|贾 
贾育台|贾 
建国党|建 
江core|江 
江八点|江 
江流氓|江 
江罗|江 
江绵恒|江 
江青|江 
江戏子|江 
江则民|江 
江泽慧|江 
江泽民|江 
江澤民|江 
江贼|江 
江贼民|江 
江折民|江 
江猪|江 
江猪媳|江 
江主席|江 
姜春云|姜 
将则民|将 
僵贼|僵 
僵贼民|僵 
疆独|疆 
讲法|讲 
酱猪媳|酱 
交班|交 
教养院|教 
接班|接 
揭批书|揭 
金尧如|金 
锦涛|锦 
禁看|禁 
经文|经 
开放杂志|开 
看中国|看 
抗议|抗 
邝锦文|邝 
劳动教养所|劳 
劳改|劳 
劳教|劳 
老江|老 
老毛|老 
老人政治|老 
黎安友|黎 
李长春|李 
李大师|李 
李登辉|李 
李红痔|李 
李宏志|李 
李洪宽|李 
李继耐|李 
李兰菊|李 
李岚清|李 
李老师|李 
李录|李 
李禄|李 
李鹏|李 
李瑞环|李 
李少民|李 
李淑娴|李 
李旺阳|李 
李文斌|李 
李小朋|李 
李小鹏|李 
李月月鸟|李 
李志绥|李 
李总理|李 
李总统|李 
连胜德|连 
联总|联 
廉政大论坛|廉 
炼功|炼 
梁光烈|梁 
梁擎墩|梁 
两岸关系|两 
两岸三地论坛|两 
两个中国|两 
两会|两 
两会报道|两 
两会新闻|两 
廖锡龙|廖 
林保华|林 
林长盛|林 
林樵清|林 
林慎立|林 
凌锋|凌 
刘宾深|刘 
刘宾雁|刘 
刘刚|刘 
刘国凯|刘 
刘华清|刘 
刘俊国|刘 
刘凯中|刘 
刘千石|刘 
刘青|刘 
刘山青|刘 
刘士贤|刘 
刘文胜|刘 
刘晓波|刘 
刘晓竹|刘 
刘永川|刘 
流亡|流 
六四|六 
龙虎豹|龙 
陆委会|陆 
吕京花|吕 
吕秀莲|吕 
抡功|抡 
伦功|伦 
轮大|轮 
轮功|轮 
轮奸|轮 
罗干|罗 
罗礼诗|罗 
马大维|马 
马良骏|马 
马三家|马 
马时敏|马 
卖国|卖 
毛厕洞|毛 
毛片|毛 
毛贼东|毛 
美国参考|美 
美国之音|美 
蒙独|蒙 
蒙古独立|蒙 
密穴|密 
绵恒|绵 
民国|民 
民进党|民 
民联|民 
民意|民 
民意论坛|民 
民运|民 
民阵|民 
民猪|民 
民主|民 
民主墙|民 
民族矛盾|民 
明慧|明 
莫伟强|莫 
木犀地|木 
木子论坛|木 
南大自由论坛|南 
闹事|闹 
倪育贤|倪 
你说我说论坛|你 
潘国平|潘 
泡沫经济|泡 
迫害|迫 
祁建|祁 
齐墨|齐 
钱达|钱 
钱国梁|钱 
钱其琛|钱 
抢粮记|抢 
乔石|乔 
亲美|亲 
亲日|亲 
钦本立|钦 
秦晋|秦 
青天白日旗|青 
轻舟快讯|轻 
情妇|情 
庆红|庆 
全国两会|全 
热比娅|热 
热站政论网|热 
人民报|人 
人民内情真相|人 
人民真实|人 
人民之声论坛|人 
人权|人 
忍|忍 
日内瓦金融|日 
瑞士金融大学|瑞 
色情|色 
善恶有报|善 
上海帮|上 
上海孤儿院|上 
邵家健|邵 
射精|射 
神通加持法|神 
沈彤|沈 
升天|升 
盛华仁|盛 
盛雪|盛 
师父|师 
石戈|石 
时代论坛|时 
时事论坛|时 
世界经济导报|世 
事实独立|事 
双十节|双 
水扁|水 
税力|税 
司马晋|司 
司马璐|司 
司徒华|司 
斯诺|斯 
四川独立|四 
宋xx|宋 
宋平|宋 
宋书元|宋 
宋祖英|宋 
苏绍智|苏 
苏晓康|苏 
台独|台 
台盟|台 
台湾独立|台 
台湾狗|台 
台湾建国运动组织|台 
台湾青年独立联盟|台 
台湾政论区|台 
台湾自由联盟|台 
太子党|太 
汤光中|汤 
唐柏桥|唐 
唐捷|唐 
滕文生|滕 
天安门录影带|天 
天安门事件|天 
天安门屠杀|天 
天安门一代|天 
天怒|天 
天葬|天 
童屹|童 
统独|统 
统独论坛|统 
统战|统 
屠杀|屠 
外交论坛|外 
外交与方略|外 
万润南|万 
万维读者论坛|万 
万晓东|万 
汪岷|汪 
王宝森|王 
王炳章|王 
王策|王 
王超华|王 
王丹|王 
王辅臣|王 
王刚|王 
王涵万|王 
王沪宁|王 
王军涛|王 
王力雄|王 
王瑞林|王 
王润生|王 
王若望|王 
王希哲|王 
王秀丽|王 
王冶坪|王 
网特|网 
尉健行|尉 
魏京生|魏 
魏新生|魏 
温家宝|温 
温元凯|温 
文革|文 
无界浏览器|无 
吴百益|吴 
吴邦国|吴 
吴方城|吴 
吴官正|吴 
吴弘达|吴 
吴宏达|吴 
吴仁华|吴 
吴学灿|吴 
吴学璨|吴 
吾尔开希|吾 
五不|五 
伍凡|伍 
西藏|西 
西藏独立|西 
洗脑|洗 
下体|下 
项怀诚|项 
项小吉|项 
小参考|小 
肖强|肖 
邪恶|邪 
谢长廷|谢 
谢选骏|谢 
谢中之|谢 
辛灏年|辛 
新观察论坛|新 
新华举报|新 
新华内情|新 
新华通论坛|新 
新疆独立|新 
新生网|新 
新闻封锁|新 
新语丝|新 
信用危机|信 
邢铮|邢 
熊炎|熊 
熊焱|熊 
修炼|修 
徐邦秦|徐 
徐才厚|徐 
徐匡迪|徐 
徐水良|徐 
许家屯|许 
薛伟|薛 
学潮|学 
学联|学 
学习班|学 
学运|学 
学自联|学 
雪山狮子|雪 
严家其|严 
严家祺|严 
阎明复|阎 
颜射|颜 
央视内部晚会|央 
杨怀安|杨 
杨建利|杨 
杨巍|杨 
杨月清|杨 
杨周|杨 
姚月谦|姚 
夜话紫禁城|夜 
一中一台|一 
义解|义 
亦凡|亦 
异见人士|异 
异议人士|异 
易丹轩|易 
易志熹|易 
淫穴|淫 
尹庆民|尹 
由喜贵|由 
游行|游 
幼齿|幼 
幼女|幼 
于大海|于 
于浩成|于 
余英时|余 
舆论|舆 
舆论反制|舆 
宇明网|宇 
圆满|圆 
远志明|远 
岳武|岳 
在十月|在 
则民|则 
择民|择 
泽民|泽 
贼民|贼 
曾培炎|曾 
曾庆红|曾 
张伯笠|张 
张钢|张 
张宏堡|张 
张健|张 
张林|张 
张万年|张 
张伟国|张 
张昭富|张 
张志清|张 
赵海青|赵 
赵南|赵 
赵品潞|赵 
赵晓微|赵 
赵紫阳|赵 
哲民|哲 
真善忍|真 
真相|真 
真象|真 
镇压|镇 
争鸣论坛|争 
正见网|正 
正义党论坛|正 
郑义|&

[163] The list at the end of this article is a partial one and appears at http://chinadigitaltimes.net/2004/08/the_words_you_n.php.

Appendix II: “The Great Firewall of China: Keywords used to filter web content”

The Washington Post

The Great Firewall of China

Keywords Used to Filter Web Content

Saturday, February 18, 2006; 11:11 AM

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/18/AR200602...

The Washington Post obtained a list of keywords used by a Chinese blog service provider to flag offensive material. Of 236 items on the list, 18 were obscenities. The rest were related to politics or current affairs.

Most words on this list can be posted on Chinese Web sites, but their presence quietly alerts editors to examine the messages that contain them and possibly

take action. In tests, postings that included long sections of the list were allowed to remain on several sites, but quickly removed from others. One site also blocked the computer used to conduct the tests from posting anything else.

In addition, on most sites, at least some of the sensitive phrases cannot be posted at all. Depending on the site, filters replace the offending words with asterisks or block the entire message. Below is the list. Obscenities have been withheld.

Names of People [Chinese characters added by Human Rights Watch]

Bao Tong 鲍彤

Chen Yonglin 陈用林

Cui Yingjie 崔英杰

Ding Jiaban 丁家班

Du Zhaoyong 杜兆勇

Gao Jingyun 高景云

Gao Zhisheng 高智晟

He Jiadong 何家栋

He Weifang 贺为方

Hu Xingdou 胡星斗

Hu Yuehua 胡跃华

Hua Guofeng 华国锋

Huang Jingao 黄金高

Jiang Mianheng 江绵恒

Jiang Yanyong 蒋彦永

Jiang Zemin 江泽民

Jiao Guobiao 焦国标

Jin Zhong 金众

Li Zhiying 李智英

Liang Yuncai 梁云才

Liu Jianfeng 柳剑锋

Liu Junning 刘军宁

Liu Xiabobo 刘晓波

Nie Shubin 聂树斌

Nie Shubin (repeated)

Sun Dawu 孙大午

Wang Binyu 王斌余

Wang Lixiong 王力雄

Xu Zhiyong 许志永

Yang Bin 杨斌

Yang Dongping 杨东平

Yu Jie 俞杰

Zhang Weiying 张惟英

Zhang Xingshui 张星水

Zhang Zuhua 张祖桦

Zhao Yan 赵岩

Zhou Qing 周勍

Zhu Chenghu 朱成虎

Zhu Wenhu 朱文虎

Zi Yang (in English)

Ziyang (in Chinese) 紫阳

Ziyang (in English)

zzy (in English, abbreviation for Zhao Ziyang)

Chinese Politics

17th party congress 十七大

Babaoshan 八宝山

Beat [overthrow] the Central Propaganda Department 打倒中宣部

Blast the Central Propaganda Department 炮打中宣部

Block the road and demand back pay

Chief of the Finance Bureau 金融司司长

Children of high officials 高干子弟

China liberal (in English)

Chinese Communist high officials 中共高干

Denounce the Central Propaganda Department 讨伐中宣部

Down with the Central Propaganda Department 痛打中宣部

Impeach 罢免

Lin Zhao Memorial Award 林昭纪念奖

Patriots Alliance 爱国者同盟

Patriots Alliance (abbreviated) 爱盟 

Patriots Alliance Web 爱国者同盟网

Police chase after and kill police 警察追杀警察

Pollution lawsuit 污染诉讼

Procedures for dismissing an official 罢官规则

Red Terror 红色恐怖

Set fires to force people to relocate 动迁纵火

Sons of high officials 高干子弟

The Central Propaganda Department is the AIDS of Chinese society 中宣部是中国社会的艾滋病

Villagers fight with weapons 村民械斗

Wang Anshi’s reform and the fall of the Northern Song dynasty 王安石变法与北宋的灭亡

Specific Issues and Events

Buy corpses 买尸体

Cadres transferred from the military 军转干部

Cashfiesta (English)

Cat abuse 虐猫

Changxin Coal Mountain 长兴媒山

China Youth Daily staff evaluation system 中青报考评

Chinese orphanage 中国孤儿院

Chinese Yangshen Yizhi Gong  中华养生益智功

Demobilized soldiers transferred to other industries 复转军人

Dongyang 东阳

Dongzhou 东洲

Fetus soup 婴儿汤

Foot and mouth disease 口蹄疫

Fuzhou pig case 福州猪案

Gaoxin Hospital 高新医院

High-speed train petition 高铁大签名

Hire a killer to murder one’s wife 雇凶杀妻

Honghai Bay 红海湾

Horseracing 马术比赛

Jinxin Pharmaceutical 京新药业

Kelemayi 克拉玛依

Linyi family planning 临沂计划生育

Market access system 准入制

Mascot 吉祥物

Military wages 军人工资

No Friendlies 无福娃

Prosecutor committed suicide 检察长自杀

Pubu Ravine 瀑布沟

Shanwei government 汕尾政府

Suicide of deputy mayor 副市长自杀

Suicide of Kuerle mayor 库尔勒市市长自杀

Swiss University of Finance 瑞士金融大学

Taishi village 太石村

Top ten worst cities 十大最差城市

Wanzhou 万州

Weitan [Village] 韦滩村

Zhang Chunxian welcomes supervision against corruption 张春贤欢迎廉政监督

Falun Gong

Terms related to the banned Falun Gong spiritual movement, including phrases from its “NineCommentaries” manifesto against the Communist Party:

Chinese Communist Party brutally kills people 共产党残暴杀人

dajiyuan (in English)

Defy the heavens, earth and nature. Mao Zedong 藐视天地自然。毛泽东

Epoch Times 大纪元

Epoch Times (written with a different character) 大纪园

Epoch Times news Web site 大纪元新闻网

Evaluate the Chinese Communist Party 评中国共产党

Evaluate the Chinese Communist Party (abbreviated) 评共产党

falundafa (in English)

flg (in English)

Fozhan Qianshou Fa 佛展千手法

Guantong Liangji Fa 贯通两极法

In the Chinese Communist Party, common standards of humanity don’t exist 共产党那里，没有普遍的人性标准

Li Hongzhi 李洪志

lihongzhi (in English)

Master Li 李大师

minghui (in English)

Mother and daughter accused each other, and students and teachers became enemies 母女告发和师生反目

New Tang dynasty TV Station 新唐人电视台

Nine Commentaries 九评

No. 1 evil cult in the world 人世间的头号大邪教

Obedient citizens under its brutal rule 它暴虐统治下的顺民

People become brutal in violence, Chinese Communist Party  暴力之中人变得暴虐，共产党

People developed a concept of the Chinese Communist Party, but 人们对共产党又产生了幻想。但是，

People who could escape have escaped, and had people to seek refuge with 逃的逃，有人投靠

Quit the party 退党

Run the opposite direction of the so-called ideals of Communism 与所谓共产主义的理想背道而驰

Shenzhou Jiachifa 神通加持法

Spring Festival Gala of the World’s Chinese 全球华人春节联欢晚会

Steal people’s painstaking work 盗用人民辛勤劳动

Truth, Compassion, Tolerance [Falungong slogan] 真善忍

Zhenshanren (in English) [same slogan in English]

Overseas Web Sites, Publications and Dissident Groups

Century China Foundation 世纪中国基金会

China Issues Forum 中国问题论坛

China Renaissance Forum 中国复兴论坛

China Society Forum 中国社会论坛

China Spring 中国之春

Chinese Current Affairs 中华时事

Chinese World Forum 华语世界论坛

EastSouthWestNorth Forum 东南西北论坛

EastWestSouthNorth Forum 东西南北论坛

Forum of Wind, Rain and the Divine Land 风雨神州论坛

Freedom and Democracy Forum 自由民主论坛

Freedom to Write Award 自由写作奖

Great China Forum 大中华论坛

Han Style 汉风

Huatong Current Affairs Forum 华通时事论坛

Huaxia Digest 华夏文摘

Huayue Current Affairs Forum 华岳时事论坛

Independent Chinese PEN Center 独立中文笔会

Jimaoxin Collection 鸡毛信文汇

Justice Party Forum 正义党论坛

New Birth Web 新生网

New Observer Forum 新观察论坛

North American Freedom Forum 北美自由论坛

reminbao (in English)

remingbao (in English)

Small Reference 小参考

Spring and Summer Forum 春夏自由论坛

Voice of the People Forum 人民之声论坛

Worldwide Reader Forum 万维读者论坛

You Say I Say Forum 你说我说论坛

Zhengming Forum 争鸣论坛

Zhidian Jiangshan Forum 指点江山论坛

Zhongshan Wind and Rain Forum 钟山风雨论坛

Taiwan

Establish Taiwan Country Movement Organization 台湾建国运动组织

Great President Chen Shui-bian 陈水扁大总统

Independent League of Taiwan Youth 台湾青年独立联盟

Independent Taiwan Association 独立台湾会

New Party 新党

Taiwan Freedom League 台湾自由联盟

Taiwan Political Discussion Zone 台湾政论区

Ethnic Minorities

East Turkestan 东土耳其斯坦

East Turkestan (abbreviated) 东突

Han-Hui conflicts [ethnic conflicts] 回汉冲突

Henan Zhongmu 河南中牟

Hui [muslim ethnic minority] rebellion 回民暴动

Hui village 回民村

Langcheng Gang 狼城岗

Nancheng Gang 南城岗

Nanren Village 南仁村

Tibet independence 疆独

Xinjiang independence 疆独

Zhongmu County 中牟县

Tiananmen Square

Memoirs of June 4 participants 六四参加者回忆录

Redress June 4 六四平反

Tiananmen videotape 天安门录影带

Tiananmen incident 天安门事件

Tiananmen massacre 天安门屠杀

Tiananmen generation 天安门一代

World Economic Herald 世界经济导报

Censorship

Cleaning and rectifying Web sites 网站清理整顿

China’s true content 中国真实内容

Internet commentator 网络评论员

News blockade 新闻封锁

International

Indonesia 印尼

North Korea falls out with China 朝鲜对中国翻脸

Paris riots 巴黎骚乱

Tsunami 海啸

Other

Armageddon 世界末日

Bomb 炸弹

Bug 窃听器

Handmade pistol 自制手枪

Nuclear bomb 原子弹

Wiretap 监听器

Chinese People Tell the Truth 中华人民实话实说

Chinese People Justice and Evil 中华人民正邪

China Social Progressive Party 中国社会进步党

Chinese Truth Report 中华真实报道

Dazhong Zhenren Zhenshi 大众真人真事

Jingdongriji (English)

Night talk of the Forbidden City 夜话紫禁城

People’s Inside Information and Truth 人民内情真

© 2006 Washingtonpost.Newsweek Interactive

Appendix X: Letter from Human Rights Watch to Google

(While Human Rights Watch and Google have had private discussions, Google did not reply formally to this letter)

July 5, 2006

Eric Schmidt, CEO

Google Inc.
1600 Amphitheatre Parkway
Mountain View, CA 94043

USA
Fax: +1 650 253 0001

Re: China

Dear Mr. Schmidt,

I am writing to request your help with research that Human Rights Watch is conducting on the role of international companies in the Internet in China. This report will include a discussion of the role of Google in China. It is our goal to present a thorough and objective report. To that end, we are soliciting information and views from your company.

We would appreciate any comments you may have about Google’s role in China. Specifically, we would appreciate responses to the following questions. This will greatly assist our understanding of Google and the environment in which it works.

1. Can Google elaborate on its human rights policies and procedures? In what way have these been adapted to China?

2. Does the company raise objections to censorship directly with Chinese or other government authorities?

3. How does the company decide what words or terms to censor and restrict from Google.com and Google.cn? Can the company contest such requests through the legal or judicial process in China? If so, how does the company do this and has it ever challenged a request?

4. Please provide your full and current list of blocked words, phrases, and URL’s from both Google.com and Google.cn.

5. Does Google make public words or terms that are prohibited on Google.cn? If not, would you be willing to do so, including by placing them in a prominent position on your websites?

6. Would Google be willing to provide links to a third-party site such as Chilling Effects to provide more information to the user about why search results were removed?

7. We appreciate that Google is not hosting Gmail and Blogger.com in China. Under what conditions, if any, would the company do so?

8. Has the company been asked to sign on to the pledge for self-discipline?

9. Has your company been pressured by Chinese authorities to block or remove additional content on Google.cn beyond what Google.cn already blocks or removes from search results? Has it been subjected to pressure or direct requests since that date? If so, what has been your company’s response?

10. There have been reports by Chinese bloggers that Google is moving the hosting of Google.cn onto servers inside China. Can you confirm whether this is the case, and if so what measures is Google taking to protect user privacy in the event that the Chinese government requests data such as user search results?

11. Does Google support an industry code of conduct, and if so, can you elaborate on what principles you think it should contain?

12. What is the company’s position on U.S. or other government anti-censorship regulation generally, and the Smith bill in particular?

Because we are under deadline, we would appreciate a response by July 14. If we do not receive a reply by then, I am afraid we may be unable to include information you provide in the published report.

Thank you very much for your consideration of our request and I look forward to remaining in contact with you.

Sincerely,

Brad Adams

Executive Director

Asia Division

Cc: Elliot Schrage, Vice President, Global Communications and Public Affairs

Andrew McLaughlin, Senior Policy Counsel (via email to mclaughlin@google.com)

Sergey Brin & Larry Page, co-founders

Rishi Jaitly, Policy Analyst (via email to rishi@google.com)