Governments around the world have dealt with the threat of terrorism by increasing surveillance and curtailing civil rights, but China’s government, critics say, has exploited a genuine terrorist threat to further empower its repressive state-security apparatus. It is, they say, invoking the dangers of violent extremism to justify and expand an already harsh crackdown on civil rights and to punish foreign information technology companies that refuse to play by its rules.
Human Rights Watch calls the draft law a “recipe for abuses.” President Obama focused his ire on provisions in the law that would affect U.S. technology companies doing business here and force them to hand over the keys to their operating systems to Chinese surveillance.
The new law is symptomatic of the gulf between China and the West over human rights, and it is widening a serious rift between Washington and Beijing over cyberspace.
In an interview with Reuters this week, Obama said he had raised his concerns with China’s President Xi Jinping.
“We have made it very clear to them that this is something they are going to have to change if they are to do business with the United States,” he said.
The state news agency Xinhua called Obama’s criticism “utterly groundless” on Wednesday, adding it was “another piece of evidence of the arrogance and hypocrisy of U.S. foreign policy.”
China blames escalating violence in its far-western province of Xinjiang on Islamist extremists bent on violent jihad; it says terrorists use the Internet to organize and to spread their ideas. It frames the new legislation as part of its efforts to counter that threat and to govern the country according to the “rule of law.” It is asking for international support and approval for its approach.
[Read: China sees jihadist inspiration coming from abroad by way of the Web]
Julia Famularo, who has been studying the law for the Project 2049 Institute, an Arlington-based think tank devoted to Asian security issues, said every government has to strike a balance between fighting terrorism and citizens’ rights.
“We could argue whether the United States, Britain and other countries have been able to strike that balance — but what we are really concerned about in China is that these measures are incredibly broad, and we are worried they can be used to attack dissidents,” she said.
One of those dissidents, Hu Jia, under house arrest since last June, said the law might appeal to people angry at terrorist attacks, but it was fundamentally designed to extend a comprehensive system of control introduced by President Xi.
“Once you want to exercise your political rights as a citizen, you will touch the red line and be caught in the net,” he said in a telephone interview. “According to criminal procedure law, your right to a lawyer will be restricted if you are accused of endangering state security or terrorism. And because the government controls propaganda, if they say you are a terrorist, then you are.”
In Xinjiang, China stands accused of a wide-ranging crackdown on the religious, political and civil rights of the mainly Muslim Uighur people, of torture and enforced disappearances and widespread socio-economic discrimination.
Now, as the arrest and imprisonment of moderate Uighur academic Ilham Tohti demonstrated last year, anyone attempting to criticize government policy or assert an independent Uighur identity runs the risk of a being branded a separatist and, by association, a terrorist.
Indeed, the law offers a broad definition of terrorism that includes not only “activity” but also “opinion” that “generates social panic, threatens public security or coerces a state organ or international organization.”
It conflates terrorism with what China defines as “religious extremism,” including, for example, the forcing of children to take part in religious activities.
Although the Chinese government has a right and responsibility to provide public order, says Sophie Richardson of Human Rights Watch, the law, and the security mind-set it lays bare, “is just as likely to fuel unrest and violence as it is to mitigate it.”
Richardson says an “incredibly broad spectrum of behavior” can be construed as criminal, “with no avenues to challenge it.”
“Even in perfectly ordinary, non-controversial criminal cases, the right to a fair trial in China is a rare thing already,” she said. “Add on that veneer of terrorism, and you have very little hope of a meaningful opportunity to defend yourself.”
The first draft of the law also demanded that IT companies operating in China hand over encryption codes, install security “backdoors” in their products to Chinese authorities, and keep servers within the country.
Obama said it would essentially force foreign companies “to turn over to the Chinese government mechanisms where they can snoop and keep track of all users of their services.”
In China, it is not only Xinhua that accuses Obama of hypocrisy. Beyond the lack of due process at Guantanamo Bay or the extended government powers granted under the Patriot Act, China points out, Western governments often request that tech companies hand over encryption codes.
Western free-speech advocates counter that China lacks effective constraints to state power, in the form of an independent judiciary, a feisty legislature, a business sector willing to stick up for itself or an independent media.
That, they say, makes government over-reach in China potentially much more dangerous.
At a news conference Wednesday, Fu Ying, spokeswoman for the National People’s Congress, China’s largely rubber-stamp parliament, said the law had been modified to reflect some of those concerns during a second round of drafting last month.
In particular, she said, there were “hot discussions among legislators” on how to “better balance the relation between counterterrorism measures and safeguarding human rights.”
She said the articles relating to IT companies had been “improved” to include “strict conditions and limits” on when data could be obtained. In particular, the law would only be used to prevent or investigate terrorist activity, she said, and after “a strict review and approval procedure.”
Richardson, of Human Rights Watch, says the only revision worth making to the first draft would be “to rip it up and start again.”
As a crackdown on nongovernmental organizations has intensified under Xi’s presidency, the new counterterrorism law also includes a section mandating the central bank and civil administration to supervise and inspect financial flows into foundations, social organizations and foreign NGOs."
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