Some features of the restriction of the right to privacy in the interests of ensuring the security of the State (on the example of the People's Republic of China)
The article examines the peculiarities of the legal regulation of the restriction of human rights in the interests of ensuring the security of the state, highlights the main forms of control (surveillance and surveillance) of citizens' contacts, shows the main problems and positive results in the activities of public authorities of the People's Republic of China in this area.
Keywords: state security, state authorities, public safety, human rights, restrictions on rights and freedoms, surveillance, control, surveillance, "surveillance society".
In the interests of ensuring the security of the state and strengthening State power, there are more and more grounds for restricting the right to privacy of citizens, including by collecting information and monitoring the population, since surveillance, according to some experts, acts as a guarantor of citizens' observance of public order and functions as a means of social control. Therefore, the "tracking society" is becoming a central and pervasive feature of modern society <1>.
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<1> Lion D. The Electronic Eye: The Rise of the Surveillance Society University of Minnesota Press. 1994. Page 4.
Surveillance has long been used as a tool for managing society, as well as an element of the mechanism for ensuring the security of the state. For decades, wiretapping and interception of communications for intelligence and national security purposes have been common practice in many States. With the development of digital technologies, the coverage and penetration of surveillance systems into all spheres of society is expanding. Electronic technologies have significantly expanded control capabilities, including video surveillance systems, biometrics, facial recognition, analysis of large amounts of data and artificial intelligence <2>.
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<2> Deibert R.J. The Black Code: Censorship, surveillance and militarization of cyberspace // Millennium: Journal of International Studies, 2003. Volume 32. Iss. 3. p. 514.
Through both targeted and mass surveillance, public authorities, as well as non-governmental organizations (hereinafter referred to as private companies) collect and store more and more information about the private lives of citizens, using it to organize and maintain control over the population or in the interests of profit.
The practice of State control received a global boost as a result of the terrorist attacks of September 11, 2001, which changed the approach to intelligence gathering and support for law and order in society. Surveillance tools are relatively inexpensive, easy to acquire, and difficult to detect. Many countries around the world have adopted laws that create more favorable conditions for control (surveillance), such as the "Anti-Terrorist Act" in Russia and abroad on combating terrorism and combating corruption and on ensuring security in the UK (Terrorism Act, Act 2000; The Law on Combating Terrorism of 2008) .
Such legal acts in the field of digital surveillance have contributed to the development and strengthening of cooperation and interaction between the state and non-governmental organizations, since public authorities have goals and requirements, and non-governmental organizations have "incentives, experience and resources to meet these needs" <3>. Private companies, being the main engine of technological progress, develop surveillance software and provide technical support. In most countries, such cooperation is carried out with limited supervision over the collection, storage and use of information about the private lives of citizens by government agencies and non-governmental organizations, which, in conditions of insufficient transparency and information security, increases the risk of human rights violations.
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<3> Surveillance and human rights: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The Human Rights Council. 2019. July 24th.
In our opinion, in the interests of ensuring the security of the state, the introduction of certain restrictions on the rights and freedoms of citizens (for example, the right to privacy) may be quite justified and appropriate.
In this regard, the most interesting is the experience of the People's Republic of China, which over the past decade has adopted several legal acts that establish the grounds for imposing restrictions on the rights and freedoms of citizens in the interests of State security.
In 2014, the Law "On Combating Espionage" (hereinafter - the Law) was adopted, which abolished the Law "On State Security" in force since 1993. The provisions enshrined in it indicate a tightening of legislative policy in the field of state security. The law provides for the liability of foreign organizations, individuals or persons inciting intelligence activities, as well as persons carrying out espionage in the interests of foreign organizations and individuals <4>.
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<4>
Espionage, according to the Law, refers to espionage, its sponsorship or incitement by foreign organizations or individuals, as well as similar activities of Chinese citizens and organizations in favor of foreign organizations and individuals. In the event of a violation of the country's security, the activities of these individuals and organizations may be suspended, and counterintelligence has the right to seize or confiscate their funds or items (for example, smartphones and other electronic devices) used for espionage purposes. The Law also states that "fabrication or distortion of facts, publication or dissemination of statements or information that pose a threat to State security" are considered espionage-related crimes <5>.
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<5> China's Intelligence Law and future intelligence competitions in the country. The Government of Canada.
In 2015 The National People's Congress of the People's Republic of China has approved the Law on State Security, strengthening state control over cyberspace <6>. Its text says that China will make the Internet and information systems "safe and controllable" <7>.
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<6> China adopts a new national security law expanding control over the Internet // The Guardian. 2015. July 1st.
<7> Xinhua information: China is adopting a new law on national security // Xinhua. 2015. July 1st.
In 2016, the Law on Cybersecurity was adopted. Aimed at eliminating anonymity in online activities, the law required Internet users to register their real names <8>.
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<8> Mozur P. Internet control in China will become stricter, to the disappointment of foreign business // The New York Times. 2016. November 7th.
The Chinese government perceives external and internal threats to the state proactively and operates with a broad concept of state security. In order to counter globalism and the spread of Western culture, combat separatism, extremism, terrorism and protect the integrity of the state, China seeks to promote patriotic sentiments and socialism with Chinese characteristics - "one state, two systems."
Chinese President Xi Jinping stressed the need to preserve traditional cultural values and strengthen the global influence of Chinese culture. Values such as honesty, loyalty and impartiality are encouraged, and are opposed to "selfish behavior, decentralization" and disregard for rules <9>. The Internet is considered as a possible tool for external interference in the affairs of the state. Unlike the United States, the European Union, and the United Kingdom, which focus on individualism and freedom, the Chinese Internet model prioritizes the security and integrity of the state, stability, and order in society.
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<9> Background: Xi Jinping's Thoughts on Socialism with Chinese characteristics for a new era // Xinhua. 2018. March 17th.
To ensure the security of the state, respect cultural traditions and promote the spread of socialist patriotic values, China has created a system of cyber monitoring, early warning and information transmission <10>.
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<10> Overview of Chinese cybersecurity legislation // KPMG China. February.
For example, in the Xinjiang Uygur Autonomous Region, Chinese officials are prioritizing State and public security, using surveillance to prevent terrorist attacks and other crimes. It is also known about the creation in Xinjiang of the first regional database containing retinal images of up to 30 million citizens <11>.
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<11> Mozur P., Qian I., Xiao M., Cardia A. Four conclusions from the Times investigation of expanding surveillance in China // The New York Times. 2022. June 21.
The growth of China's economic and military power is accompanied by a growing dominance in the high-tech industry, which allows resources to be directed to priority sectors. State-owned firms and certain sectors of the economy receive subsidies, access to protected markets and loans on favorable terms <12>. China's strong technological potential, as well as the active improvement of legal regulation, expand the possibilities for imposing various restrictions on human rights and freedoms in the interests of ensuring the security of the state.
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<12> Samuelson R.J. Why China Clings to State Capitalism // The Washington Post. 2019. 9 January.
In recent years, China has established many government-backed funds worth billions of dollars aimed at advanced manufacturing and technology sectors of the economy, including a 40 billion yuan fund for high-tech industries and a 147.2 billion yuan fund for new materials, information technology and electrical equipment. Decades of economic growth have allowed China to increase its spending on research and development (R&D), which has grown by an average of 20% per year since 1999 <13>. In 2016 Investments in R&D reached $410 billion, more than in Japan, Germany and South Korea combined <14>.
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<13> Kubota Y. China's New $21 Billion High-Tech Manufacturing Fund Likely to Rank The U.S. // The Wall Street Journal. 2019. 20 November.
<14> Emanuel E., Gadsden A. and Moore S. How the U.S. Surrendered to China on Scientific Research" // The Wall Street Journal. 2019. 19 April.
The Chinese government is seeking to reduce its dependence on foreign suppliers of digital and communication equipment, leading in advanced technologies such as artificial intelligence, quantum computing and 5G networks. The next-generation 5G wireless networks are expected to operate 100 times faster than 4G networks and will revolutionize the entire global economy. Higher connection speeds will allow the use of the Internet of Things and more accurate surveillance systems <15>.
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<15> Rundle J. and Loten A. The Power of Combining 5G and AI // The Wall Street Journal. 2019. 8 November.
In 2018, the Chinese company Huawei spent about $16 billion on R&D, which is about 15% of its annual sales <16>. It is currently a leading international company for 5G patents such as data transmission and network security <17>.
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<16> Lucas L., and Kynge J. Huawei Continues Global Push Despite Setbacks in West // Financial Times. 2018. 16 December.
<17> Johnson K., Groll E. The Improbable Rise of Huawei // Foreign Policy. 2019. 3 April.
China's centralized approach is also conducive to the development of artificial intelligence. As some experts have noted, democracy and centralization of power are two different data processing systems. While the centralization of power concentrates information and power in one place, democracy distributes them among many people and institutions <18>.
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<18> Yuval Noah Harari. Why Technology Favors Tyranny // The Atlantic. 2019. Oktober.
As a result, a centralized model can be a decisive advantage in the development of artificial intelligence for China, given the availability of huge amounts of information, strong government support and an environment in which little attention is paid to privacy protection. The combination of 5G networks and artificial intelligence can significantly expand the ability of authorities to monitor the population <19>.
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<19> James Rundle and Angus Loten. The Power of Combining 5G and AI // The Wall Street Journal. 2019. 8 November.
Thanks to increasingly sophisticated technology, the Chinese government is able to promote comprehensive surveillance systems. The "aerial network", the literal translation of the Chinese name "Tianwang", is a police data system, the main components of which are video surveillance, facial recognition system and artificial intelligence <20>. Surveillance cameras are installed everywhere to catch criminals at airports, train stations and on the streets.
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<20> Mozur P. Inside China's Dystopian Dreams: A.I., Shame and Lots of Cameras // The New York Times. 2019. 8 July.
According to the South China Morning Post, Tianwang had 170 million cameras in 2017, and by 2020 the government planned to add another 400 million nationwide. <21> According to some estimates, in 2022, more than half of the nearly one billion surveillance cameras in the world are located in China <22>. The aim of the "Air Network" is to capture more fugitive suspects and corrupt officials <23>.
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<21> Chen S. How tensions with the West are putting the future of China's Skynet mass surveillance system at stake // South China Morning Post. 2018. 23 September.
<22> Mozur P., Qian I., Xiao M., Cardia A. Four Takeaways from a Times Investigation into China's Expanding Surveillance State // The New York Times. 2022.
<23> China Launches "Sky Net 2019" to Capture Fugitive Officials, Xinhua. 2019. 28 January.
There is also evidence of the use of devices by the Chinese police that perform the function of analyzing and intercepting mobile and Wi-Fi signals within their range. It is a powerful tool for establishing a connection between a real person, a digital footprint and a physical location <24>. Such devices are sometimes able to use a weak degree of data protection of a particular surveillance object to extract personal information.
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<24> Mozur P., Qian I., Xiao M., Cardia A. Four Takeaways from a Times Investigation into China's Expanding Surveillance State // The New York Times. 2022.
For example, in 2017, a Beijing police tender document indicated the intention to collect information about names used by owners of tracked phones on popular Chinese social networks. And the tender documents of the Guangdong Provincial District Police showed that devices capable of tracking the presence of an application in phones, which is a Uighur-Chinese dictionary, were purchased. His presence could indicate that the owner of the phone belongs to a carefully controlled Uighur ethnic minority. To date, technical means for intercepting a mobile signal are used in all provinces and regions of mainland China <25>.
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<25> In the same place.
In addition, China's surveillance system is not limited to the sphere of state security. The "Social Rating System" developed by the Government is aimed at monitoring and controlling the daily life and activities of the population. The system evaluates the "reliability" of citizens by combining data on their online and offline behavior. Millions of citizens were banned from buying tickets for flights and trains in case they were blacklisted for offenses related to social credit. Violations can range from spreading false information and drug use to smoking on the train and non-payment of taxes <26>. To create a unified social credit system, the Chinese government cooperates with private credit organizations such as Sesame Credit, which represents the financial credit rating <27>.
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<26> Kuo L. China Bans 23m from Buying Travel Tickets as Part of the 'Social Credit' System // The Guardian. 2019. 1 March.
<27> Freedom on the Net 2018
Thus, governments around the world take ambiguous positions regarding the legal regulation of technological industries and especially in the field of surveillance, collection and storage of information about the private lives of citizens. It should be borne in mind that illegal and arbitrary surveillance, carried out without a judicial decision and independent supervision, can be extremely intrusive and violate fundamental human rights. The insufficiency of legal regulation at the national and international levels can lead to "specific forms of restriction of citizens' rights that cannot be controlled by any independent body" <28>.
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<28> La Rue Frank. Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue // United Nations General Assembly, Human Rights Council. 2013. 17 April.
Thus, a weak regulatory framework contributes to the explosive spread of surveillance technologies. According to the non-governmental organization Reporters Without Borders, the Internet has become part of the "collateral damage" in the war on terrorism. At the same time, given the pace of technological development, legal measures often do not keep up with it <30>.
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<29> Enemies of the Internet Report 2012 // Reporters without Borders, March 2012
<30> Lyon D. Op. cit. 13.
The existing legal norms are not updated and revised in a timely manner, taking into account the emergence of new technologies for monitoring and information collection and, as a result, they do not cope with eliminating existing risks and problems <31>. Human rights mechanisms are also too slow to assess the impact of the Internet and technological innovations in the field of communications control <32>.
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<31> La Rue F. Op. cit.
<32> Ibid.
Thus, when monitoring the private lives of citizens in the interests of ensuring the security of the state, it is necessary to achieve a balance between the interests of the state itself and the rights of citizens, taking into account emerging threats to society.