Archive for September, 2007

If a Law Itself Disobey the Principle of Law, It is A Bad Law

China has promulgated many provisions on the Internet cotrolling. According to these regulations, not only commercial organs but also any of the personal website shall “record” the owner, the IP address, the domain name to the governmental agencies. However, this provision of “recording” is acctually a kind of licensing policy since if any of the above information is changed, the site owner shall record again. Violation of this regulation will lead to a punishment of termination of website. Furthermore, according to another provision, if a website provides any function of interactive communication including message board, BBS, comment box and so on, the web owner shall get a seperate license beforehand. To obtain this license, the web owner shall take part in a workshop of “network security management” held by the government and get a certificate from it.

In accordance with the above regulations, the new storm of banning Chinese individual websites is appeared lawful since most of the owner of the personal website can not afford time and money to obtain the licenses. I will not blame the enforcement of these regulation impulsively. From the legal perspective, my doubt is firstly on the legitimacy and the rationale of the legislation. Comparing to other communication systems, the feature of the Internet is interactive. It is hardly to find a website without the interactive functions. Requiring all websites “recording” seperately is not a good regulation because it ignored the basic character of the Internet.

As for the requirement of participating the “network security worksop”, I can’t find any reasonable excuse — Regardless the arrangement of substantive rights and duties, the rule of law is at least based on the due process. Even from the very utilitarian and positive perspecitve of legal theory, if a procedural regulation is impossible to be fully enforced, this procedure is unreasonable. I can hardly imagine that in the era of web 2.0, in the era of anyone who has a computer can easily creat his/her own blog, the government can provide enough workshops for all “webmasters”.) So the only way of implementing the regulations is selecting specific time (for example, before some important events like the national meeting of the party) and choosing specific objects. This way is bad because it violate the basic requirement of a “harmonious” society – EQUALITY. From the basic knowledge of jurisprudence, if a law itself disobey the principle of law, it is a bad law.

In fact, even “recording” is not as easy as it seemed should be. Government website for “recording” is so slow that can not be registered in easily; the time of “permitting the recording” is unlimited. So even those abiding the provision of “website recording” will encounter many obstacles. (if you can read Chinese, click here to read a webmaster’s complaint).

Bad News – Some One Proposed to Deny Accesses from Governmental Network in A BBS

Yesterday, a post calling for a joint blocking of IP addresses belonging to governmental networks, copyright organizations and national gateways was published in “V2EX.com“. V2EX is a famous web 2.0 Chinese community, which is believed to be blocked by G.F-W recently. This website, built by Livid Torvalds (Liu Xin), an excellent programmer born in Kunming, provides discussion boards service in a creative way. This new “BBS” attracts a great amount of visitors in a short period.

V2EX is believed to be blocked on 5 September under a storm of Internet Controlling. It remains not clear that which department of China’s government is in charge of the whole action, while perhaps the storm is mainly for “creating a stabilization” before the 17th National Congress of Chinese Communist Party.

The author of the post suggest Chinese individual webmasters collect IP addresses of governmental networks, copyright organizations, judicial organs and other networks or servers may be employed to operate the so called “G-F.W”.

THIS IS A BAD NEWS. Because this implies a possible upgrade of the tension between government and netizens. The similar upgrades have happened before in China, and some of them led to tragic finales. Fortunately, the calling in this post may not be successful since it is very hard to define which IP address should be banned, and a joint activity is too difficult to be practiced. Nevertheless, from the legal perspective, to ban any access to one’s own website dose not violate the law, unless a new law claims that [b]any visisting[/b] from IP addresses in governmental network shall not be denied accessing to any database. If this becomes true, nothing can be better than leave the jurisdiction of such law because that is really an irreversible upgrade, i.e., “Matrix Reloaded” comes true.

I hope it never happens.

Hong Kong Legislation on the Cyber Crimes

1. Laws against Hacking (Unauthorized Access, Access with Criminal Intent)
There are two offences under the laws of Hong Kong aiming at “Hacking” activities:-
Cap.106 S.27a – Unauthorised access to computer by telecommunication
Cap.200 S.161- Access to computer with criminal or dishonest intent

CAP 106 TELECOMMUNICATIONS orDINANCE
Section 27A – Unauthorized access to computer by telecommunications – 16/06/2000
Section Num:
27A
Version Date
16/06/2000
Heading
Unauthorized access to computer by telecommunications

(1) Any person who, by telecommunications, knowingly causes a
computer to perform any function to obtain unauthorized access to any
program or data held in a computer commits an offence and is liable on
conviction to a fine of $20000. (Amended 36 of 2000 s. 28)
(2) For the purposes of subsection (1)-
(a) the intent of the person need not be directed at-
(i) any particular program or data;
(ii) a program or data of a particular kind; or
(iii) a program or data held in a particular computer;
(b) access of any kind by a person to any program or data held in a
computer is unauthorized if he is not entitled to control access of the
kind in question to the program or data held in the computer and-
(i) he has not been authorized to obtain access of the kind in
question to the program or data held in the computer by any person who is
so entitled;
(ii) he does not believe that he has been so authorized; and
(iii) he does not believe that he would have been so authorized if
he had applied for the appropriate authority.
(3) Subsection (1) has effect without prejudice to any law relating
to powers of inspection, search or seizure.
(4) Notwithstanding section 26 of the Magistrates ordinance (Cap
227), proceedings for an offence under this section may be brought at any
time within 3 years of the commission of the offence or within 6 months of
the discovery of the offence by the prosecutor, whichever period expires
first.
(Added 23 of 1993 s. 2)

————–
CAP 200 CRIMES orDINANCE
Section 161 – Access to computer with criminal or dishonest intent – 30/06/1997
Section Num:
161
Version Date
30/06/1997
Heading
Access to computer with criminal or dishonest intent

(1) Any person who obtains access to a computer-
(a) with intent to commit an offence;
(b) with a dishonest intent to deceive;
(c) with a view to dishonest gain for himself or another; or
(d) with a dishonest intent to cause loss to another,
whether on the same occasion as he obtains such access or on any future
occasion, commits an offence and is liable on conviction upon indictment
to imprisonment for 5 years.
(2) For the purposes of subsection (1) “gain” (獲益) and “loss” (損失)
are to be construed as extending not only to gain or loss in money or
other property, but as extending to any such gain or loss whether
temporary or permanent; and-
(a) “gain” (獲益) includes a gain by keeping what one has, as well as
a gain by getting what one has not; and
(b) “loss” (損失) includes a loss by not getting what one might get,
as well as a loss by parting with what one has.
(Added 23 of 1993 s. 5)

2. Laws against Criminal Damage
Section 59 – Interpretation – 30/06/1997
Section Num:
59
Version Date
30/06/1997
Heading
Interpretation

PART VIII

CRIMINAL DAMAGE TO PROPERTY

(1) In this Part, “property” (財產) means-
(a) property of a tangible nature, whether real or personal,
including money and-
(i) including wild creatures which have been tamed or are
ordinarily kept in captivity, and any other wild creatures or their
carcasses if, but only if, they have been reduced into possession which
has not been lost or abandoned or are in the course of being reduced into
possession; but
(ii) not including mushrooms growing wild on any land or flowers,
fruit or foliage of a plant growing wild on any land; or
(b) any program, or data, held in a computer or in a computer
storage medium, whether or not the program or data is property of a
tangible nature.
In this subsection, “mushroom” (菌類植物) includes any fungus and “plant” (植物) includes any shrub or tree. (Replaced 23 of 1993 s. 3)
(1A) In this Part, “to destroy or damage any property” (摧毀或損壞財產) in
relation to a computer includes the misuse of a computer.
In this subsection, “misuse of a computer” (誤用電腦) means-
(a) to cause a computer to function other than as it has been established to function by or on behalf of its owner, notwithstanding that the misuse may not impair the operation of the computer or a program held in the computer or the reliability of data held in the computer;
(b) to alter or erase any program or data held in a computer or in
a computer storage medium;
(c) to add any program or data to the contents of a computer or of
a computer storage medium, and any act which contributes towards causing the misuse of a kind referred to in paragraph (a), (b) or (c) shall be regarded as causing it. (Added 23 of 1993 s. 3)
(2) Property shall be treated for the purposes of this Part as belonging to any person-
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an
equitable interest arising only from an agreement to transfer or grant an
interest); or
(c) having a charge on it.
(3) Where property is subject to a trust, the persons to whom it belongs shall be so treated as including any person having a right to enforce the trust.
(4) Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 10 U.K.]

————
Section 60 – Destroying or damaging property – 30/06/1997
Section Num:
60
Version Date
30/06/1997
Heading
Destroying or damaging property

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,
shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 1 U.K.]

"Real Name Card" in Internet Cafes: Unreasonable Regulation

In most legal Internet Cafes in mainland China, one has to provide his / her “real name card” when he / she hopes to login on a computer and surf the line. The name, resident ID number and other information are integreted in these cards and they are granted by some goverment angencies. The government officers seem believe these cards can prevent the breach of the law when internet users surfing the line.

I can’t imagine how this regulation can be implemented since the cost of implementation is so high that no goverment agencies are capable to check whether the users are really using their own “real name cards”. The old Chinese saying tells us that stopping up the speaking is more difficult than blocking up the river.
Actually, before using the “real name card”, one has to provide his / her Resident ID Card in the Internet Cafes. I can’t understand the distinct between these two cards in controling the acts of the internet users. So even we ignore questioning the legitimacy of controling speaking, what is the reasonable argument for this redundant regulation can still be problematic. Also, the old Chinese saying remindes us “it is stupid to sell water to fisherman”.
The regulation of using Real Name Card will only be benifit to the manufacturer of Real Name Cards. I dare not and have no evidence to suspect the relationship between manufacturers and the goverment agencies. However, it is of cause will increase the possibility of corruption. And, to prevent this corruption, extra cost will be paid definitely. Are the bills really be printed without the contribution of tax payers?

Why Choose Blogspot Hosting My English Blog?

Everyone except some Chinese Netizens in this planet has known for a long time: blogspot is blocked by China, then why do I choose it hosting my English blog?

Choosing Blogspot, I may get very limited visitors from mainland China. Although it is an English blog, I believe most of entries here are more attractive to those people in China – either speaking Chinese or English – than in anywhere of the world.

Choosing Blogspot, I may encounter difficulties when I tried to post entries or manage my blog. Most of my business stays in China until now, which means most of my life may be spent in China. I may not so easy to access my own site when I am back to my hometown.

Am I such a freshman who just begin blogging? No. My homepage has been launched to the Internet near 10 years, and I have been involved in the study of Internet Law (Cyber Law) over 5 years. I’ve read perhaps every provision of Chinese Internet regulation, and I have observed most of important events in the history of the Internet governance by Chinese Government.

Am I such a young radical activist? No. From my knowledge, no one will really win in a political debate. If there must be a winner, he / she must be the stronger. And furthermore, I don’t, and I am not capable to, care about the so-called democracy and other political issues. I just hope to feed myself with my professional knowledge.

Am I intended to publish the rubbish and spamming the Internet? No. I am a lawyer. A lawyer will not be so stupid to leave evidence even when he was compelled to do something perhaps illegal. While my blog is of a purely legal one, at least according to the existing Chinese law. No unsolicited message, no pornography, no drug abuse, no Child sex, no privacy violation, no piracy, no violence, no terrorism, and of course, no threaten to the national / international security. Plus, I am planning to add “no smoking” and “no snore”. My blog focus on academic and professional topics, even my personal hobbies are banned by myself. So if a government bans this site because of its content, the reason should only be: there are some contents here.

Then why I choose Blogspot, a blocked hoster?

Because my responsibility to the Chinese people? No. I wish I were so patriotic, but I always disappoint myself by falling into the daily work. I have to confess that each time when I saw my friends are using those outdated web services, I feel sorry. But I don’t and cannot be their father. When people ask me questions about the new applications in the Internet, my answer are normally simple and selfish: search and try them by yourself.

Well, enough, there may be other mistaken answers. I’m tired to explain more. Now let me release the correct simple answer:

Because I have registered a Google account, and its service is good enough for me.

The Internet is the tool of my work and the toy of my relaxation. I don’t hope to be the slave of my tool and toy. If a tool is good enough, why do I choose another? My computer was bought 6 years ago. It still can run software what I need, so I don’t buy a new one. My first website was based on a simple template of FrontPage (an old Microsoft software) and published in 1998. It is replaced till 2003, because it cannot satisfy my needs of upload new entries every day. My Chinese blog was set up in 2005, it runs well but the technical support is poor, so I may change to another some day (God knows when it will be).

Similarly, Google’s services are not bad, I enjoy using Gmail, Google reader and other applications with a sole account. And most importantly, its services are updating. I don’t want switch to another service provider. I need a pure English blog service which is stable and is compatible to my Chinese site. Blogspot is enough.

You may say a blocked Google is nothing. But how can you predict which is the next one? The trend is: when a new website is good enough to attract Chinese visitors, it is facing the fate of blocking. The cases of Flickr and Feedburner, the unblock of Technorati has proved that the blocking is extremely arbitrary. I will not discuss the legitimacy of the blocking in this essay. And I may never discuss this topic in the future since I don’t used to discussing a topic on which the academic conclusion is useless to the legal practice. What I am talking about is a common sense:

If each line is possible to be cut off, why do I waste time to find and study a line that I haven’t touched before?

Actually, in my BlawgDog.com, an English channel (so just click here if you are in mainland China) has been set up from the very beginning. Because the blog system I used is based on Chinese, the pages in this English channel still includes many Chinese buttons. So what I need is just a blog service that may be used to establish a pure English branch to perfect my BLawgDog.com, Blogspot is enough.

Again, Google has provided what I want, and what I don’t want was not conducted by Google itself. If I choose other sites, I am doing a censorship too, and this self-censorship can’t help me since it can’t prevent my hoster being blocked tomorrow morning.

TO BURN, or TO BE BURNED OUT?

Since 30 August, Feedburner has been burned out in China. That means, “feeds.feedburner.com” is blocked in China.

No comment. I have been tired since they block Flickr.

Oh, btw, a tip in Chinese legal practice:

If someone say “f…k you little girl” in public website, he will not be punished; but if anyone say “f…k you” to any party member who stay a higher position than him, he will get 90% opportunity to face a criminal prosecution.

F…K YOU.

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