China has been eager to claim its “Internet sovereignty” since the 18th party congress, with Internet control naturally topping the central leadership’s agenda. The recently released cyber security law draft, while aiming to codify the previously scattered Internet regulation policies and solidify Cyberspace Administration’s status as the leading Internet governing body, has demonstrated the country’s determination to take a more effective and concentrated approach to make cyberspace “safe and harmonious” territory.
The draft legalized China’s use of the Great Fire Wall to deny domestic citizens’ access to information the authorities deem as forbidden by laws and regulations. Article 43 of the draft states that the cyberspace administration and relevant departments shall notify relevant organizations to adopt technological measures and other necessary measures to block the transmission of information that is prohibited by Chinese laws and regulations.
The draft also rationalized the Internet shutdown tactics that were previously deployed during the Xinjiang riot in 2009. Article 50 of the draft promulgates that in order to fulfill the need to protect national security and social public order and respond to major social security incidents, the State Council, or the governments of provinces, autonomous regions and municipalities with approval by the State Council, may take temporary measures of the Internet communication in certain regions, such as by restricting it.
The draft also imposes Internet companies’ obligation to actively monitor Internet users’ content and delete content that is forbidden by laws and regulations in order to prevent that information from spreading (Article 40). Failure of preventing illegal information from spreading will result in punishment including warning, fines and even forced closure (Article 57). Law enforcement can also enlist network operators’ help for national security and criminal detection purposes (Article 23).
The draft also duplicates the stringent requirements on the real identity registration system of the NPCSC’s 2012 Decision on Strengthening Network Information Protection, according to Clement Chen, a post-doctoral fellow at the Faculty of Law, HKU. Article 20 of the draft prescribes that network operators shall require users to provide real identity information when signing service agreements to ensure the traceability of the Internet content. Where users do not provide real identify information, network operators must not provide them with relevant services. Chen adds that while the draft imposes obligations to protect privacy on the ISPs, it does not impose equally comprehensive obligations on public authorities in relation to their collection and processing of personal information within the broad scope of “Internet security maintenance.”
The draft law may cement Cyberspace Administration’s leadership role in administering, coordinating, and supervising cyberspace affairs. The Ministry of Industry and Information Technology, the Ministry of Public Security, and the State Administration of Press, Publication, Radio, Film and Television may only play subordinate roles.
Cyberspace Administration, or the Office of the Central Leading Group for Cyberspace Affairs, was set up in 2013 with the aim of enhancing China’s cyber security and informatization strategies. Chinese President Xi Jinping chairs it and on many occasions has stressed that cyber security and informatization are significant strategic issues that are critical to national security and development.
The Cyberspace Administration’s role has also been expanded from monitoring and censoring online content to evaluating and authorizing the overseas storage and transfer of Chinese citizens’ personal information, based on Article 31 of the draft law. However, with the enhancement and expansion of the Cyberspace Administration’s role, it is unclear whether it will be subject to any form of supervision and oversight.
The draft law may be seen as China’s official response to both domestic and foreign criticisms of the current chaotic and inefficient Internet control mechanism. By codifying the Internet control policies and concentrating the power to one body, China is likely to adopt a more aggressive posture with greater efficiency in governing the domestic cyberspace.
Jennifer Zhang is an Internet researcher at Journalism and Media Studies Centre, the University of Hong Kong.