B. Theory Application
1. Law v.s. Code as Regulation
By building probably the most complicated Internet filtering architecture,59 the Chinese government has been crafting a new Internet architecture according to the nationalist ideology60. This architecture is deviated far from its counterpart in the Western world,61 which has been characterized as openness and freedom.62 Comparing the differences of these two types of Internet architecture, it is not difficult to understand Lessig’s argument that “some architectures enable better control than others.”63
1. Law v.s. Code as Regulation
The “code is law” theory raises interesting questions regarding the role of code or architecture as an alternative to the law. When policymakers have regulatory options between code and law, they shall take into account the impact of each and the costs and benefits associated with each option.64
59 See e.g. Rebecca MacKinnon, Flattered World and Thicker Walls? Blogs, Censorship and Civil Discourse in China, 134 PUB.CHOICE 31, 32 (2008); see also Farrell, supra note
In China, the government has employed several mechanisms to regulate online information available to its citizens. Such mechanisms
3, at 577 (stating that
“[c]ompared to other states, China’s censorship regime is pervasive, sophisticated, and effective”).
60 LESSIG,CODE VERSION 2, supra note 51, at 89.
61 Id.
62 Stevenson, supra note 2, at 533-34.
63 LESSIG,CODE VERSION 2, at 24.
64 See e.g. Jay P. Kesan & Rajiv C. Shah, Shaping Code, 18 HARV.J.L.&TECH. 319, 321, 322-23 (2005).
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include laws,65 forcing search engines to remove inappropriate content,66 intensive cyber policing,67 and technologies that filter online content.68
Comparing to being regulated by the law, it is usually more difficult for citizens to sense that they are regulated by the code. When a Chinese end user fails to open a forbidden website, the screen will not show that “the Website is blocked by the Government.”
69 It will only show the signal of “site not found.”70 Some countries, such as Tunisia, Iran, United Arab Emirates, and Saudi Arabi,71 use SmartFilter software, developed by the U.S. company Secure Computing, as a proxy filter, and the software provides “a blockpage that looks like the…browser’s default error page.”72 The software used by China is similar to SmartFilter, but is developed by China itself.73 All the software helps to conceal the fact that blocking is taking place. Uzbekistan’s Internet filtering likewise hides government’s blocking by redirecting users to Microsoft search engine www.live.com.74
65 Deibert, supra note
Therefore, it is quite difficult for the user to know whether this
2, at 148-49; Farrell, supra note 3, at 588-90, 598; Ling, supra note 7, at 180-84;
Nawyn, supra note 18, at 509-10; Stevenson, supra note 2, at 537-40; YANG, supra note 9, at 48-49.
66 LESSIG,CODE VERSION 2, at 80, 309; Stevenson, supra note 2, at 532; 543-44.
67 According to Professor Yuezhi Zhao, a great number of “cyber police squads…are patrolling Chinese cyberspace, deleting politically incorrect content in real time, blocking websites, monitoring networking activities of citizens, and tracking down and arresting offending individuals.”) See Zhao, supra note 4, at 20.
68 Stevenson, supra note 2, at 540-41. See also Shirk, supra note 30, at 14 (describing that “human monitors are proactively censor content on their sites”); Qiang, supra note 6, at 207, 208 (introducing the Internet police in China and noting that “human monitors are employed by both Web sites and the government to manually read and censor content.”)
69GOLDSMITH &WU, supra note 24, at 94.
70 Id. Bambauer, at 391.
71 Stevenson, supra note 2, at 542.
72 Faris & Villeneuve, supra note 5, at 15.
73 HUMAN RIGHTS WATCH,at10; THE OPENNET INITIATIVE,INTERNET FILTERING IN TUNISIA IN 2005:A COUNTRY STUDY (2005), available at http://
www.opennetinitiative.net/studies/tunisia/ONI_Tunisia_Country_Study.pdf.; see also Wacker, supra note 11, at 69 (stating that Chinese companies have begun to supplied the government with filtering software).
74 Bambauer, at 392; Faris & Villeneuve, supra note 5, at 16.
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problem is because of government intervention or a pure technical problem.75
The invisible feature of Internet filtering proves that Lessig’s concern over code-based regulation is not over-stated. Lessig has warned us that since regulating by code is not as transparent as regulating by the law, the former may weaken the democratic value in a society.
And in this way, code shapes and regulates human behavior more surely and subtly than the law.
76 Put it more clearly, when citizens are regulated by code, rather than the law, they will “experience these controls as nature.”77 This is what’s now happening in China.
The Chinese government has never disclosed what it filters.78
Of course, governments implementing filtering system can choose not to disguise the fact that they are blocking website. They may decide to declare what material they block in laws or public announcements.
When citizens are more used to the fact that a great number of websites cannot be viewed via their computers, they will more likely to take such intervention and control for granted.
79 For example, Saudi Arabia has disclosed explicitly the reason for Internet filtering in its government website.80 The country using SmartFilter as well, has decided to provide a blockpage that notifies users the requested content is blocked.81 The blockpage also informs users the way to lift the block.82 However, Saudi Arabia is just one of the few countries willing to disclose blocking information and to provide remedy among those with Internet filtering systems.83
Using the law or the code to regulate may bring about different costs. Law regulates behavior through an ex post approach. Law will not be enforcement until a violation Therefore, when regulating by code, the government has the option of whether to disclose its intent in constraining behavior.
75 Bambauer, at 391; GOLDSMITH &WU,supra note 24, at 94.
76 LESSIG,CODE VERSION 2.0, at 138.
77 Id.
78 Bambauer, at 394.
79 Id.
80 Id. at 390-91.
81 Faris & Villeneuve, supra note 5, at 15.
82 Id.
83 Id. at 16; Stevenson, supra note 2, at 536.
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behavior takes place.84 Although law enforcement may threaten potential violations in the future, it may also incur significant costs for the regulator. From the perspective of the Chinese government, sending violators, who use the Internet to disseminate prohibited content, to jail or imposing other punishment may draw considerable attention and negative impression internationally. The associated costs are extraordinarily high given China’s increasing importance and visibility in the global community. In contrast, regulating by code is an ex ante approach. Although adopting the Internet filtering techniques may lead to certain criticisms regarding citizens’ right to information, its costs are respectively low for the government as opposed to regulating by law. At least the Chinese government may explain that such practice can be justified by the fact that a large number of countries word wide is filtering online content.85
Sometimes regulating by code needs to be implemented via laws and policies. When such laws and policies are announced, policymakers may still experience considerable costs because this is an ex post approach, rather than purely regulating by code. For example, in 2009 the Ministry of Information Technology initiated a project requiring all computers made and sold in China be preinstalled the filtering software Green Dam Youth Escort.86 However this project was cancelled because of strong public protest.87 The filtering software is eventually required only for computers in schools and Internet cafes.88 The Green Dam Escort initiative is actually an ex post approach, that made citizens aware of the subject regulation and, thus, able to oppose it before it went into effect. Therefore, comparing with the Green Dam Escort initiative, Internet filtering in the gateway level causes much less costs and is obviously more effective.