(June 12, 2009) On May 19, 2009, China's Ministry of Industry and Information Technology (MIIT) issued the Circular on Computer Pre-Loaded Green Internet Filter Software, which requires that from July 1 of this year, all personal computers manufactured and sold in China or imported to be sold in the Chinese market should be loaded with software that blocks access to certain proscribed websites. The proscribed sites are on a blacklist compiled and maintained by the main developer of the software, Jinhui Computer System Engineering Co., which contends that the software is designed to allow parents to block their children's access to inappropriate Web content. Typically, such software's blacklist comprises websites “previously categorized as pornographic, violent, or containing hate speech, as well as words or combinations of words that appear on such sites.” (Geoffrey A. Fowler & Ben Worthen, New China Web-Filtering Rules Still Murky, THE WALL STREET JOURNAL, June 9, 2009, at B4, available at http://online.wsj.com/article/SB124450534684996071.html [subscription required].)
There is concern, however, as expressed in a Wall Street Journal article on the new measure, that the requirement “could give government censors unprecedented control over how Chinese users access the Internet.” (Loretta Chao, China Squeezes PC Makers, THE WALL STREET JOURNAL, June 8, 2009, at A1, available at http://online.wsj.com/article/SB124440211524192081.html [subscription required].)
Officials in the foreign industries have complained that foreign companies were not given enough time to thoroughly test the blocking software. One official stated, “[t]he lack of transparency, the shortness of time for implementation, and the incredible scope of the requirement that is not matched anywhere around the world present tremendous challenges to the industry.” (Id.) Moreover, as the WALL STREET JOURNAL points out, “China already operates an extensive Internet filtering system, commonly called the Great Firewall, which blocks access to a range of content, from pornography to politically sensitive sites … But that system blocks content at the network level, and many users circumvent it.” (Id.)
The Circular states that the government's provision to the public of the software is for the purpose of “constructing a green, healthy, and harmonious Internet environment and preventing harmful information on the Internet from influencing and poisoning young people.” (Id.; Guanyu jisuanji yuzhuang lüse shangwang guolü ruanjian de tongzhi [Circular on Computer Pre-Loaded Green Internet Filter Software] [in Chinese] (May 19, 2009)[hereinafter Filter Circular]MIITwebsite, June 9, 2009, available at http://www.miit.gov.cn/n11293472/n11293832/n11293952/12398220.html.) MIIT, the Central Civilization Office of the Ministry of Propaganda, and the Ministry of Finance, in accordance with the relevant requirements of the [2003] Law on Government Procurement, used central government financial funds to buy up one-year usage rights and related services for the “green” Internet-filter software product “Green Dam-Youth Escort,” so as to provide it to the public free of charge. (Filter Circular, supra.) “Green” in this context has the connotation of “free from pornography and other illicit content.” (Chao, supra.)
The circular states, more specifically, that computers manufactured and sold within the territory of China, upon being issued from the factory, should be loaded with the most recent application of Green Dam software; imported computers, before being sold domestically, should be loaded with the most recent application of Green Dam-Youth Escort Software. The Green Dam software should be pre-installed on the computer hardware or be on a disk accompanying the machine and should also be part of the documentation in restored sectors and restored disks. (Filter Circular, supra, items 1 & 2.) It is unclear whether the software's installation is mandatory, however, and whether the software can be deactivated or circumvented. According to Green Dam founder Bryan Zhang, it is possible to uninstall the software, but a password is required. (Fowler & Worthen, supra.)
The Circular further states that PC manufacturers and the software provider are to provide a monthly report to MIIT's Software Service Industry Department on the number of computer sales in the previous month and the number of filter software programs loaded, as well as work recommendations; beginning in 2010, an annual report on the data is to be submitted before the end of February each year. For those who do not load the software within the time limit, submit reports on time, or make false reports or refuse to report, MIIT will instruct them to make a supplementary report within a time limit or correct their actions. The question of what penalties might be imposed should companies fail to comply after being advised to take corrective action is not addressed, however. (Filter Circular, supra, item 5; Fowler & Worthen, supra.)
Earlier in the year, on April 1, the Ministry of Education, Ministry of Finance, MIIT, and the State Council Information Office jointly issued a circular on providing “green” software to primary and middle schools throughout China, to be installed before the end of May 2009, “to help them purify their online environments.” (Free Software Will Purify Online Environment for Students in China, CHINA TECH NEWS, May 11, 2009, available at http://www.chinatechnews.com/2009/05/11/9730-free-software-will-purify-o
nline-environment-for-students-in-china/.) The same Green Dam software is the “green” software in question; it was also purchased for the schools with central government funds. MIIT is named in the circular as the agency responsible for installing and downloading the software and providing related services to the schools, although the latter are responsible for updating the software “in a timely manner.” Education departments, the circular stipulates, should designate a special person to be in charge of the implementation process, and “should conduct periodic inspections on the prevention of unhealthy online content” in schools across the country. (Id.; Guanyu zhong xiao xuexiaoyuan wangluo lüse shangwang guolü ruanjian anzhuang shiyong tongzhi [Circular on Middle- and Primary-School Networks Green Internet-Filter Software Installation and Application], EDUCATION INFO, May 7, 2009, available at http://www.edu.cn/zc_6539/20090507/t20090507_377220.shtml.) An appendix to the circular explains how to install and apply the Green Dam software.
It may be noted that China's recently issued Software Product Management Measures (issued on March 5, 2009, and in force as of April 10, 2009), prescribe that software product development, manufacture, sale, import and export, and other activities should comply with China's relevant laws, regulations and standard norms. No work unit or individual may develop, produce, sell, import, or export software products with content that: 1) violates other persons' intellectual property rights; 2) contains computer viruses; 3) could harm the security of a computer system; 4) does not conform to China's software standard norms; or 5) contains content prohibited by laws, administrative regulations, and the like (art. 4). (Ruanjian chanpin guanli banfa [in Chinese], MIIT website, Mar. 12, 2009, available at http://www.miit.gov.cn/n11293472/n11294912/n11296542/12133005.html.) The Measures also prescribe that a system of registration and filing for the record is to be implemented for software products in China, and China-manufactured software products that conform to the Measures' provisions and that are registered and recorded may enjoy the beneficial government policies available for designated, encouraged industries (art. 7).
Contributors to the China Law Listserv (CHINALAW@HERMES.GWU.EDU) have engaged in a discussion of whether or not Green Dam's selection as the software provider was anti-competitive, particularly in connection with the Law on Government Procurement and related regulations (see in particular the posts by Glen Tiffert, Donald Clarke, Paul Jones, and Daniel Mitterhoff.) Jones points out, “according to the Caijing and other articles this complaint really only has one AML component to it, namely the choosing of one manufacturer's software over others without tender,” and lists hyperlinks to some of the relevant articles in Chinese. (To conduct a search of archived items in the listserve, go to https://hermes.gwu.edu/archives/chinalaw.html and provide e-mail address and password.)