Developments in Internet Law: Internet Use Restricted in China

By Elaine Hargrove-Simon, Silha Fellow and Bulletin editor

A "Declaration of Internet Users' Rights" was published by 18 Chinese dissidents and intellectuals in China on July 29, 2002, according to Agence France-Presse. The declaration calls for the Chinese people to have complete freedom in surfing the Internet. Additionally, the Declaration of Rights states that creators of Web pages must be restricted only with regard to "evident and real" slander, pornography or certain "violent attacks or behavior."

Internet access in China is very tightly controlled, and most people are forced to use "Internet cafés" in order to surf the Web and maintain anonymity. According to Reuters, many of these cyber cafes are run illegally and ignore fire and safety regulations.

Such disregard led to the deaths of 25 people on June 16, when a fire broke out in an Internet café in the northeastern port city of Dalian. The staff of the Lanjisu Cyber Café had left for the night, locking the doors but allowing some customers to remain inside to surf the Internet. When the café caught fire, the customers, mostly students, were trapped. The mayor of Beijing subsequently ordered all of the city's 2,400 cafés to close. New cafés were not allowed to open unless they passed safety inspections. Agence France-Presse reported that on July 18, 30 of the city's cyber cafés had reopened.

Wang Yuesheng, who operates a legal Internet café, told Reuters that four government departments must approve a café's license before it can become operational. Of Beijing's 2,400 web cafés, only 200 are legal, according to the official Xinhua news agency. Cyber cafés are not permitted within 200 yards of factories or businesses, primary or secondary schools, or any government or Communist Party installation. Café owners are required to pay for and install equipment that will allow police to monitor Internet activity. Police search the computers for activity relating to Taiwan, Tibet, the officially banned Falun Gong spiritual movement, and pornography.

On July 15, the Associated Press reported that Internet portals in China have signed a voluntary pledge to limit user access to sites that do not conform with official Chinese guidelines. Signatories to the pledge include Yahoo!'s Chinese-language site, which agreed to refrain from "producing, posting or disseminating pernicious information that may jeopardize state security and disrupt social stability." Those who sign the pledge also agree not to spread "superstition and obscenity," and to block any foreign-based Web sites that contain "harmful information." Currently, most Web sites belonging to human rights groups and Western media are blocked. New regulations will take effect beginning August 1, 2002 that, according to the Beijing Morning Post, will "promote the healthy development of Internet publications."

In related news, satellite transmission of the British Broadcasting Corporation's programming into China was cut off on July 1, 2002. According to the Associated Press, Chinese officials said the shut-down would be temporary. It was not revealed what portion of the transmissions was offensive, although the BBC reported that the shutdown came after a broadcast on the fifth anniversary of the 1997 hand over of Hong Kong from Britain to China during which the Falun Gong movement had been mentioned.

All foreign channels have recently been required to broadcast through a state-owned satellite, which the Chinese government can switch off at will. However, there are reportedly other satellites continuing to broadcast the BBC into China.

Silha Center Files Brief in Bunner CaseThe Silha Center has joined the American Civil Liberties Union and the American Civil Liberties Union of Northern California in an amicus brief in DVD Copy Control Association, Inc. v. Bunner (No. S102588), filed in the California Supreme Court on July 11, 2002. Silha Professor and Silha Center Director Jane E. Kirtley was co-author of the brief.

The case arose after several individuals posted DeCSS, a computer program that allows the decryption of DVDs, on the Internet. The DVD Copy Control Association claims that the publication unlawfully disclosed trade secrets, and obtained an injunction to stop the defendants from "posting or otherwise disclosing or distributing on their websites or elsewhere, the DeCSS program . . . or any other information derived from this proprietary information." The California Court of Appeal overturned the injunction, finding it to be an unconstitutional prior restraint (see DVD Copy Control Association v. Bunner, 113 Cal. Rptr.2d 338 (Cal. Ct. App. 2001)).

The primary issue raised on appeal is a narrow one: does the First Amendment permit an injunction prohibiting disclosure by third parties of lawfully obtained and widely disseminated information? It is similar to the question decided by the U.S. Supreme Court in Bartnicki v. Vopper, 532 U.S. 514 (2001), in which the high court ruled that journalists could not be sued for publishing the contents of an illegally-intercepted telephone conversation when the conversation concerned a matter of public interest and when the journalists had done nothing illegal to obtain the tape. (See Summer 2001 Bulletin, " U.S. Supreme Court Rules In Historic Bartnicki Case").

Another issue which may be considered by the court is whether computer software such as DeCSS is "speech," and, if so, whether its distribution can be enjoined. (See Winter 2002 Bulletin, "Appeals Court Rules Ban on Hyperlinks Constitutional.") The date for oral argument has not yet been set. The text of the amicus brief can be found at:



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This page contains a single entry by cla published on November 11, 2009 12:55 PM.

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