Constructing the Internet Panoptic-Fortification: A Legal Study on China's Internet Regulatory Mechanism

Constructing the Internet Panoptic-Fortification: A Legal Study on China's Internet Regulatory Mechanism

Juan Du (Peking University, China & PKU-HKUST Shenzhen-Hong Kong Institution, Hong Kong)
DOI: 10.4018/978-1-7998-1791-8.ch009

Abstract

This chapter investigates China's Internet regulatory mechanism through the systematical analysis on Internet law in China. It argues that China has developed a hybrid Internet regulatory model, which values both external defense and internal control of in pursuit of the cybersecurity, and which combines hierarchical regulation with horizontal monitoring to address challenges brought by contemporary network society. Based on Michel Foucault's governmentality theory, the Internet panoptic-fortification model is developed to illuminate China's Internet regulatory mechanism. The model is featured by the centralized control, the establishment of Chinese sovereign cyberspace, the implementation of the network real-name system and the Internet-surfing record backup system, and the tight ideological control. This chapter suggests that China's Internet law has become a state instrument to promote the social discipline in the sovereign cyberspace, and the Internet regulatory mechanism serves for the national security and social stability in a broader context.
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Introduction

When the Internet was first introduced into China in the 1980s, it was understood as an advanced international technology, which could be used to promote modernization in China. As a result, not many restrictions were put in place. In 1994, China’s information technology networks were officially connected to the international Internet, and began to extend to civilian and commercial uses. Since then, the Chinese authorities had started to formulate relevant regulations (Wang & Hu, 2016). In the early 21st century, the Internet had a broader and more profound influence on the Chinese society and the daily lives of citizens. The Chinese authorities’ attitude towards the Internet also underwent subtle changes. While taking advantage of the Internet to accelerate the process of modernization and globalization, they also attempted to construct a relatively controllable network. In this sense, the Chinese authorities sought a delicate balance between open markets and a relatively closed political and social environment.

Such an Internet policy had been maintained and strengthened over many years. Meanwhile, facing the increasing criticism of western countries on China’s strict control over the Internet, as well as the challenging idea that viewed the Internet censorship as barriers to trade in services under the WTO framework, the Chinese authorities sought political justification from the perspectives of national sovereignty and security (Lin, 2010; Wu, 2006; Yan, 2015). A series of measures have been taken to improve the legal system and to strengthen the institutional framework of Internet regulation. In this context, China has gradually developed its Internet regulatory mechanism based on the principle of cyberspace sovereignty.

In this process, law has become the major technique of Internet regulation in China. To better regulate the Internet by law, the Chinese authorities have issued a number of legislative documents to cover major aspects of Internet regulation. These documents provide a legitimate foundation for the use of multiple means to regulate the Internet. This chapter aims to investigate China’s Internet regulatory mechanism from a legal perspective. Through comprehensive and systematical legislative document analysis, it seeks to answer the question: what is the Internet regulatory mechanism constructed by law in China? Furthermore, this chapter attempts to use Foucault’s theory of governmentality to reach an in-depth understanding of China’s situation, and to construct a theoretical model of the Internet regulatory mechanism in China.

Key Terms in this Chapter

Legal Coding: The process used to create an index, and also a database, to extract keyword data systematically from legislative documents for further analysis.

Internet Plus: The in-depth integration of Internet innovation with various economic and social fields, in order to promote the technological advance, to improve efficiency, and to drive organizational change, thus to enhance the creativity and productivity of the real economy, and finally to generate a new form for economic and social development that recognizes the Internet as infrastructure and innovation element in a broader way.

The Authorities: The central and state organs in charge of Internet-related affairs.

Panopticon: The model of prison, which was conceived by Jeremy Bentham, adopts a one-way, hub-and-spoke structure, with unidirectional links to its ends.

Governmentality: The way in which the state exercises its power to control the population as a whole, while also governing individuals by guiding, shaping and channelling their conduct.

The Network Real-Name System: A regulatory tool by which the virtual identities of Internet users could correspond to their real identities.

Cyber Patrol: Inspection on ISPs and their activities conducted by the law enforcement officials using search engines, online browsing and other technical means.

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