WTO jangles keys to China censorship
By Richard Komaiko

A landmark event occurred last week that could change everything you think you know about censorship in China.

The United States Trade Representative (USTR), which is the department of the United States government responsible for international trade matters, filed a request for consultations at the World Trade Organization (WTO) pertaining to China's Internet censorship regime.

A request for consultations is not a formal complaint. Rather, it is a series of questions posed by one country to another about a

 
sensitive issue, where the country receiving the request is required to answer the questions or else face a formal complaint. How China answers these poignant questions could hold the key to the future of freedom of information in the People's Republic of China.

The rest of this article will be devoted to explaining the significance of this development. First, we will briefly review two earlier WTO cases between the US and China which touched on censorship. Then, we will explain why China's Internet censorship regime may be illegal under international law and recount the exact questions that the USTR has posed to China in this latest request for consultations. Finally, we will discuss the implications this development may hold for China's domestic politics.

China - intellectual property rights case
On April 10, 2007, the USTR filed a request for consultations with China at the WTO related to three aspects of its intellectual property laws. The consultations eventually led to a formal complaint.

One of the main issues in the complaint was China's policy of not protecting the intellectual property rights of products that fail to comply with Chinese censorship laws. For example, if a German pop singer is banned in China, the pop singer's album would not be entitled to copyright protection in China. She could hold a copyright, but Chinese authorities would not enforce the copyright, which meant that anyone could freely pirate her work.

Chinese authorities argued that this was a moot point because, if the work isn't allowed in China, what is the purpose of protecting it? The American side pointed out that a huge volume of copyrighted work that fails to meet Chinese censorship requirements is nonetheless pirated and sold throughout China, so the policy in question created a safe space for piracy and black markets. The WTO rejected China's defense, and ruled that it must uphold intellectual property rights even if the goods themselves do not meet Chinese censorship requirements.

China - audiovisual products case
Shortly after the China - intellectual property case, the WTO decided another dispute between the US and China related to censorship. In the China - audiovisual products case, the US pointed out that under Chinese law, only Chinese state-owned enterprises (SOEs) were allowed to import movies, music, magazines and books (collectively referred to as "cultural products"), and that this was illegal under international law.

When China joined the WTO, it agreed to completely eliminate the SOE monopoly on importing cultural products so that, within three years of accession, everyone could import cultural products.

China defended itself by pointing to another part of WTO law that says a country can violate WTO law if it's necessary to "protect public morality". China argued that the censorship regime was necessary in order to protect public morality, and the SOE monopoly on importing cultural products was necessary to enforce censorship because only SOEs could be trusted to police themselves.

The US countered by proposing that China could move to a model that didn't rely on SOE self-censorship: private parties could import the products and then apply to the Central Department of Propaganda for censorship permission. China claimed that this approach would be far more costly, and therefore, out of the question, but the WTO sided with the United States, and ordered China to reform its import regime to comply with international law.

Current consultations
In the current round of consultations, the US has indicated it believes that China's Internet censorship regime might be inconsistent with China's WTO obligations. One of the obligations that China accepted when it joined the WTO was to publish and make publicly available English translations of all laws and regulations which affect international commerce.

Most foreign businesses have websites. Often times, however, foreign business websites are blocked in China. The high-profile cases are tech giants like Facebook, Twitter and Google, but those are only the tip of the iceberg. The much larger problem is for humble little brick and mortar businesses - companies that are neither famous nor well known - whose websites are blocked in China.

The position of the USTR is that these blockages occur frequently enough that they appear to be a part of a concerted pattern, and if there is a concerted pattern of blocking foreign commercial websites, then the Chinese government is required to publish and make publicly available English translations of whatever laws or regulations are used to determine which websites to block. With this in mind, the USTR requested consultations with China and posed the following questions.

1. Websites of service suppliers based outside of China are sometimes inaccessible in China, which can prevent those companies from marketing products and supplying services to the Chinese market. The United States would like to better understand China's rules governing website blocking so that service suppliers based outside of China may adopt appropriate policies to avoid encountering this problem.

a. Who or what ministry is responsible for determining if and when a foreign website should be blocked in China?
b. What are the guidelines and criteria for blocking access to foreign websites? How often are these guidelines and criteria changed or published? Where are these guidelines published? Are they made public in advance of their implementation? Which ministries are responsible for drafting them?
c. What is the process for implementing a restriction on a website? How does the relevant entity determine whether an entire website should be blocked or only services or content deemed illegal?
d. Is the blocking implemented directly by the government, or indirectly by Internet service providers (ISPs) and/or telecommunications companies?
e. If blocking is carried out by ISPs or telecommunications companies, are these actions typically implemented through written governmental orders? If so, which governmental organs are authorized to issue such orders?
f. How can a service supplier without a physical presence in China determine if access to their website is or will be blocked in China? To whom should such a supplier direct questions if there are any misunderstandings?
g. Can an affected service supplier appeal a decision to block access to their website? If so, what is the procedure for appealing, and where is that procedure published? Can a service supplier use the court system to appeal a decision to block access to their website? If so, has any such appeal ever been successful?
h. Is the same process used to prevent access to foreign and domestic websites providing similar services in China? If the process is different, please describe the differences.

2. The United States understands that the State Council established a State Internet Information Office (SIIO) in May 2011. The United States is interested in better understanding the functions of the office and whether it is the appropriate interlocutor for foreign businesses that have questions or concerns regarding website inaccessibility.

a. What are the responsibilities and authorities of the SIIO?
b. Will the SIIO handle licensing or other approval processes for Internet service providers or make decisions regarding filtering of foreign websites? If so, please describe which of these processes the SIIO will manage.
c. Should companies contact the SIIO or some other entity when they have questions regarding China's Internet filtering laws, regulations and policies? If the SIIO is the appropriate contact, which office or individual should they contact? If not SIIO, which ministry and office should companies contact?
d. Which categories of objectionable conduct are managed by each ministry with responsibilities or authorities for managing Internet content?

3. Based on information provided by the SIIO earlier this year, the United States understands that foreign websites are sometimes inadvertently blocked when they share an IP address with a website which China has deemed harmful.

a. Can you explain how such inadvertent blockages occur?
b. Are there other ways that China can filter material deemed harmful to avoid such inadvertent website blockages?
c. Would Chinese authorities consider it reasonable to notify the owner of a web hosting service that one or more sites that the service hosts are being blocked in China, so that the web hosting service can ensure that other legitimate sites are not inadvertently blocked? Are Chinese authorities already doing this?
d. What steps should companies take when they become aware of such inadvertent blockages to resolve any issues and ensure their services are accessible in China?

4. The Measures for the Administration of Internet Information Services, issued by the State Council on September 25, 2000, describe nine categories of content which Internet information service providers may not disseminate. The Provisions on the Administration of Internet News Information Services, issued by the State Council and Ministry of Information Industry on September 25, 2005, add two additional categories of content which may not be transmitted. Given the broad nature of these categories, the United States is seeking greater clarity on the content that falls within them.

a. Are there any laws, regulations, policies or other guidance that establish criteria to determine when content fits into these eleven categories? If so, where can a service supplier access these measures?
b. Are government requests or orders to filter specific terms online ever communicated directly to Internet information service providers? If so, how are these directives communicated? Are these requests or orders made public? Does an Internet information service provider have the right to obtain a written order prior to implementing such a directive?
c. Are the same terms subject to filtering made available to Internet information service providers inside China and outside China?

5. According to the White Paper on the Internet in China, "telecommunication business operators and Internet information service providers shall establish Internet security management systems and utilize technical measures to prevent the transmission of all types of illegal information."

a. How is illegal information defined in this instance?
b. Is a written governmental order required for either a private corporation or a relevant authority to block the transmission of illegal information?
c. What types of technical measures are service suppliers expected to use to prevent transmission of the illegal information? d. Do authorities in China approve specific technical measures? If so, which ministry does this?
e. Are the technical measures employed by operators to block the transmission of illegal information applied automatically to domestic and foreign traffic? If not, how are they applied?
f. Does Internet content from outside of China go through a separate monitoring process for illegal information than Internet content created inside of China? If so, how do the two processes differ?

China is now legally required to appear before the WTO and answer these questions. Obviously, this puts the Chinese government in a tricky position. If it chooses not to answer, then it will be in violation of its WTO obligations. It if chooses to answer, then it will be in compliance, but the intimate details of its censorship program will be revealed. The funny thing about censorship is that once people learn the rules of the game, the rules cease to be effective.

Analysis and opinion
The trajectory of US-China relations at the WTO is becoming increasingly clear. There is a growing pattern of WTO disputes between the US and China that revolve around China's censorship regime. One way to explain this pattern is that the US government is intentionally using the WTO as a back door to dismantle China's censorship regime.

Another way to explain this pattern is that China's censorship regime produces side effects which are genuinely inconsistent with international law.

As an American citizen who considers himself very patriotic, I think that the first explanation greatly overestimates the capacity of the US government. The US government is far too cumbersome and distracted to mount any sort of large scale, prolonged, savvy maneuver of that caliber. It is far more likely that these disputes are arising naturally as a result of the unintended consequences of China's censorship regime.

It is important to note that the US has never alleged that China should not be allowed to practice censorship. The decision whether to practice censorship is unquestionably a matter of China's internal affairs as a sovereign state, to be decided between the government of China and the Chinese people themselves.

Rather, the US government has alleged that, to the extent that Chinese censorship impacts commercial relations with foreign parties, the censorship regime must be made transparent and must be made to comply with the international law commitments that China voluntarily agreed to when it joined the World Trade Organization.

This dispute is bound to have spillover effects into Chinese domestic politics. The Chinese government cannot realistically liberalize censorship for foreigners while maintaining censorship for Chinese citizens. If that were the case, how long would it be before the Chinese people stand up and demand to be treated by their government with the same equality, dignity, and access to information as that enjoyed by foreigners?

Richard Komaiko is the author of Lawyers in Modern China and the cofounder of AttorneyFee.com.

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