Much of the following is based on my translation – which is hardly flawless. No good for legal use – this is a layman’s post. If you want to save the money on an expert’s translation, it will be your problem.
Chinese “web filtering software” Green Dam and Minor Escort (绿坝-花季护航) – to be mandatorily included on every personal computer sold from or after July 1 – contains serious security vulnerabilities, according to three computer scientists with the University of Michigan.
“If Green Dam is deployed in its current form, it will significantly weaken China’s computer security,” the report states. “While the flaws we discovered can be quickly patched, correcting all the problems in the Green Dam software will likely require extensive rewriting and thorough testing. This will be difficult to achieve before China’s July 1 deadline for deploying Green Dam nationwide.”
Shanghai’s Xin Min Evening News (新民晚报) reports that Profs Zhou Ze (周泽), a lawyer with China Youth University for Political Sciences in Beijing (中国青年政治学院), and Wei Yongzheng (魏永征, probably often pronounced in a Cantonese way, as Wei is from Hong Kong) have applied to the Ministry of Industry and Information Technology, for information disclosure and for a hearing.
The ministry is not responsible for the regulation of content for the media industry, according to Wikipedia of today, as this is the task of the State Administration of Radio, Film, and Television, and the General Administration of Press and Publication. However, it is in charge of stipulating laws and regulations of the manufacturing industry of electronic and IT products, the communications industry and the software industry (2.), and to handle other matters entrusted by the State Council (16.).
Zhou’s and Wei’s case is not about contents, but about legality: they believe that the ministry’s notice of prior installation of internet filtering software on computers of June 9 violates several laws, among them the anti-monopoly law. All in all, their analysis spells out five legal obstacles for the software.
One is that the plan violates the Anti Unfair Competition Law. Zhou and Wei refer to its article 7:
The government and its organ shall not abuse its authority to force the others to purchase the commodities from the pointed seller or prohibit the fair competition from the others. The government and its organ shall not abuse its authority to prohibit outside commodities from going into home market, or prohibit domestic commodities from going to outside market.
The Ministry of Industry and Information Technology requires manufacturers of personal computers to install the Green Dam software before the pc’s leave their factories. According to their analysis, there are only two licensors for the software: Zhengzhou Jinhui Computer Systems Engineering Co Ltd (郑州金惠计算机系统工程有限公司) and Beijing Da Zheng Language and Knowledge Handling Technology Co Ltd (北京大正语言知识处理科技有限公司). While the state pledges to pay the license fees during the first year, there is no information as to who will pay the fees for the following years. If it is the consumer who pays, it could constitute a violation of article 7, write Zhou and Wei.
Another obstacle is that the ministry’s note violates several Anti-Monopoly Law articles.
Article 8: No administrative organ or organization empowered by a law or administrative regulation to administer public affairs may abuse its administrative powers to eliminate or restrict competition.
Article 32: Any administrative organ or organization empowered by a law or administrative regulation to administer public affairs may not abuse its administrative power, restrict or restrict in a disguised form entities and individuals to operate, purchase or use the commodities provided by business operators designated by it.
Article 37: Any administrative organ may not abuse its administrative power to set down such provisions in respect of eliminating or restricting competition.
Zhou and Wei argue that other softwares than of the two companies chosen by the ministry can offer similar functions as Green Dam – this would even include Microsoft Vista.
Their analysis also refers to the Product Quality Law. The state stipulates certain quality standards, which do not include Green Dam software. There was no legal base to enforce features outside the product quality law.
Then there is the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests.
Article 9: Consumers shall enjoy the right of free choice of commodities services.
Consumers shall have the right to make a free choice of business operats f supply of commodities services, freely among varieties of articles fms of services and decide independently to buy not to buy any kind of commodities, to accept not to accept any item of services.
Consumers shall have the right to make comparisons, differentiations and ions when they make a free choice of commodities services.
As Green Dam software is a product, the consumers have the right to make a free choice of commodities or services, i.e. similar software from other manufacturers than those of Green Dam.
And the procedure also is against the General Principles of Civil Law, and the principles of Contract Law. Article 3 of the General principles of Civil Law states that “Parties to a civil activity shall have equal status”, while Contract Law’s article 3 stipulates that “The parties to contract shall have equal legal status. No party may impose its will on the other party”.
Zhou and Wei also object to the term “bad information” (不良信息), which isn’t specific.
The filter software is “anti-porn”, says Xinhua. Maybe the Chinese government decided that in the current phase of social development, this latest censorship step needed a particularly subtle approach.
But Xinhua, I must say that you are treading a fine line here.