Digital China before and during the coronavirus: features of regulatory regulation
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The article is devoted to the use of digital technologies in the People's Republic of China and the specifics of their regulatory regulation in the period preceding the outbreak of the pandemic and in the period after its onset. China's experience in regulating the digital sphere is extremely important and relevant for Russian legal science. Long before the outbreak of the epidemic, the Chinese authorities launched the process of total digitalization of the state, which led to the establishment of a kind of "digital dictatorship", assuming unlimited control over citizens 24 hours a day.
Highly developed control and supervisory technologies using artificial intelligence have led to the "digitization" of a person, the creation of a system of social trust (a "second passport" of an individual), which assumes the ranking of an individual depending on the rating assigned to him and, based on this, the provision of special preferential regimes or restriction of rights to a citizen.
In the field of regulatory regulation of digital technologies, the Chinese state has refused to adopt a single law. The legislator followed the path of developing a number of normative legal acts, including those acting on an experimental basis, only partially regulating individual relations in the field under study. In other cases, "manual" control is used not only by the administrative authorities, but also by the ruling Communist Party. The authorities are in no hurry to adopt a single law in the field of personal information protection, considering that the state and society are not yet ready for its appearance, and the individual's personal rights are not valuable in the face of protecting collective interests.
Digital technologies have played a particularly positive role in the fight against the pandemic. The use of a facial recognition system, a health code, artificial intelligence and big data made it possible to put under total control the movement of citizens, their compliance with the quarantine regime, predict the development of coronavirus and develop optimal methods of its treatment. Of particular scientific and practical interest is the use of digital technologies in judicial and law enforcement systems, especially the use of artificial intelligence in sentencing in minor criminal cases.
China is showing great progress in the development and implementation of digital technologies, but their regulatory framework is underdeveloped. This approach is seen as a direct intention of the Chinese authorities, because the weakness of legislation allows the party and the government to use technology without regard to possible violations of the personal rights of citizens.
Keywords: digital technologies, digital economy, digital China, digital dictatorship, social rating system, facial recognition system, coronavirus, legal regulation, Chinese law, artificial intelligence.
Introduction
According to preliminary studies, the coronavirus pandemic began in China with the discovery of the first cases of pneumonia of unknown origin in Wuhan in December 2019. Having already had successful experience in fighting viruses (SARS 2003), the Chinese authorities have taken measures to counter the spread of the epidemic within the country.
Wuhan was one of the first to be quarantined, then restrictions on the movement of transport and population were extended to Hubei Province, and then to almost the entire Republic. Most institutions and organizations were temporarily shut down, classes at schools and universities were suspended, markets and catering outlets were closed, and air and rail transportation were suspended. The whole country was mobilized to fight the virus, the campaign was directly led by Chinese President Xi Jinping.
The need to counter the spread of the epidemic has contributed to China's even greater immersion in the online space. However, unlike the Russian Federation, by the beginning of the epidemic, China had not gone online. He had been in it for a long time. To confirm what has been said, we will provide only some factual data: in 2018 <2>. The total volume of the Chinese digital economy reached 31.3 trillion yuan (about 4.6 trillion US dollars), which amounted to 34.8% of the country's GDP (in other words, more than 1/3 of the entire Chinese economy accounted for the digital sphere) <3>. In 2018 The digital economy provided jobs to 191 million people, which accounted for 24.6% of the total number of people employed in the economy <4>. The digital economy has penetrated almost all areas of the Chinese economy. According to expert forecasts, in 2020 the volume of China's digital economy will exceed 32 trillion yuan and will account for 35% of GDP; by 2030 - 50% of GDP.
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<2> By the time the article was submitted (July 6, 2020), statistics for 2019 in China had not yet been released.
<3> [White Paper on the development of the digital economy and employment in China] 2019 Published in April 2019 by the Chinese Academy of Information and Communication Technologies (CAICT). p. 1 (hereinafter referred to as the White Paper 2019).
<4> White Paper 2019. p. 46.
These statistics confirm China's leading position in the global digital economy. There is an active and total digitalization of Chinese society. According to Chinese scientists, their country started developing the digital economy late and for a long time lagged behind the United States and EU countries in this area <5>. If 10 years ago China accounted for a small share of the total value of global transactions in the framework of electronic digital transactions (about 1%), now it is more than 40% <6>. According to the Fletcher School index, the rate of digitalization of the Chinese economy is the highest in a sample of 62 countries <7>.
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<5> China's digital transformation. The experience of transforming the infrastructure of the national economy / Ed. Ma Huateng, M.: Alpina Publisher, 2019. P. 29.
<6> Wang Xiong, Murashova E.V. The current state of China's digital economy // Scientific notes of TOGU 2018. Vol. 9. N 3. P. 1384.
<7> Zhang L., Chen S. China's digital economy: opportunities and risks // Bulletin of International Organizations. 2019. Vol. 14. N 2. pp. 275 – 303..
The rapid growth of the share of the digital economy in the national economy has put the Chinese legislator in front of the need to develop and adopt an appropriate law comprehensively regulating the field of e-commerce. At the end of August 2018, the Law on Electronic Commerce appeared in the legal system of the People's Republic of China (entered into force on 01.01.2019) <8>, which established rules for the sale of goods and the provision of services in the Internet space. With its introduction, all types of e-commerce are subject to legal regulation, including the activities of not only ordinary e-commerce operators, but also online suppliers offering services such as carsharing, bike sharing, food ordering, etc.
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<8> [ The Law of the People's Republic of China on Electronic Commerce].
The adopted Law promotes transparency of digital trade, increases the level of protection of the rights of subjects of the digital economy, and ensures the protection of intellectual property rights. In order to carry out electronic commercial activities, the Law requires mandatory registration as a business entity and payment of appropriate taxes from it. For a certain type of activity, a license is also required, without which activities on electronic platforms will be recognized as illegal.
The provisions of the Law are primarily aimed at protecting the rights of consumers (the Law on the Protection of the Rights and Interests of Consumers, adopted on 31.10.1993, is in force, as amended. dated 08/27/2009 and 10/25/2013 <9>). As a result, the probability of purchasing counterfeit products decreases, collective responsibility is introduced for both the entrepreneur and the owner of the electronic platform for posting illegal content, a ban on removing negative reviews, refusing to refund prepayment, and much more.
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<9> [The Law of the People's Republic of China on the Protection of Consumer Rights and Interests].
For violation of the rules of electronic commerce, the Law provides for a fine of up to 2 million yuan (approximately 282 thousand US dollars) (Articles 82-84 of the Law on Electronic Commerce).
China also holds a leading position in terms of its presence on the global Internet. According to statistics (as of March 2020), the number of Internet users in China was about 904 million people; the Internet distribution rate was 64.5%; the number of mobile Internet users was 897 million people; among all Internet users, mobile Internet users were 99.3%; the number of users of online payment systems was 768 million, or 85% of all Internet users (765 million via mobile phones, or 85.3% of all mobile Internet users); non-bank payment systems made about 720 billion online transactions totaling about 250 trillion yuan; the number of online gamers reached 532 million (58.9% of the total number of Internet users) <10>.
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<10> [ Statistical Report on the development of the Internet in China, N 45] (March 2020) // China Internet Information Center.
A sharp increase in the number of Internet users and, as a result, the emergence of new types of threats to state and public security led to the emergence of the Law on Internet Security in China (in some Russian sources: the Law on Cybersecurity; adopted on 11/17/2016) <11>. The provisions of the Law assume the protection of the Chinese segment of the Internet as responsibly as the state border. First of all, content with any undesirable, illegal information affecting primarily the sovereignty and territorial integrity of the country, generally recognized moral values, promoting hatred in society, the spread of violence, sectarianism, heresies, suicidal, supporting financial and other types of fraud, etc. should be excluded from it.
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<11> [ The Law of the People's Republic of China on Internet Security].
According to the Law, content providers must not only comply with current legislation, "respect public morality, observe business ethics," but also "be subject to control by the government and society, and bear social responsibility" (Article 9). They are also charged with "providing technical support and assistance to public and State security agencies in carrying out their activities to ensure State security and investigate crimes" (Article 28). In case of refusal to provide "technical support and assistance", the organization and its "directly responsible for management and other directly responsible persons" are subject to liability (paragraph 3 of Article 69).
Providers are also required to require users to register under their real names (a mandatory user verification procedure that excludes their anonymity (Article 24)) and filter the content passing through them. Otherwise, the company may be closed (deprived of its license), and its employees may be held legally liable (including criminal liability) (art. 74). In addition, the Law requires the storage of information collected within the country (data localization) in the PRC, and not outside it (Article 37) (i.e. information about Chinese citizens should be stored on the internal servers of Internet companies).
Any foreign IT equipment must comply with Chinese security standards (undergo testing and certification) (art. 23). In this regard, the question arises about the obligation to provide complete and reliable information to the government by such large companies as, for example, Microsoft or Apple, which eventually agreed to cooperate with the Chinese authorities (this did not happen with regard to the fulfillment of requirements to the same companies by the Russian authorities).
The provision of Article 75 of the Law deserves special attention, according to which the State Council, the Ministry of Public Security and relevant ministries have the right to impose sanctions, "freeze the property" of bodies, organizations and individuals located outside China that damage the state information infrastructure of the People's Republic of China.
The repressive Chinese legislation in the Internet sphere, in addition to the violation of rights and freedoms that is obvious to the Western public, nevertheless contributes in the most serious way to filtering illegal content that falls into the Chinese segment. Protecting the statehood and its citizens from terrorism, extremism, sects, pornography, violence, and subversive activities of foreign intelligence agencies, the Chinese government is forced to resort to such unpopular measures in Western society. Tightening the screws on the Chinese Internet is only part of the overall system of ensuring national security, a necessary link in Xi Jinping's policy of strengthening the power and stability of the state.
A high level of development of the digital economy is impossible without the widespread introduction of digital technologies. Large-scale digitalization, which began long before the epidemic, was accompanied by the creation of various digital systems and platforms that contribute to the construction of a so-called digital dictatorship in the country with no restrictions on access to personal information of citizens by party and state bodies.
Chinese businesses, with the support of the authorities, created their own national digital platforms that operate completely autonomously (i.e. without relying on foreign platforms), their capitalization did not depend on foreign investments. The platformization of China has become possible thanks to a well-thought-out and state-oriented legal policy in the field of legislation regulating the digital economy and digital technologies. By adopting a number of disparate local regulations with unspecified content (in the absence of a number of large codified law-making acts in the People's Republic of China: civil (the first Civil Code in the history of the People's Republic of China was adopted only in May 2020, comes into force on 01.01.2021), administrative, tax and other codes) China has been able to oust the world's leading Internet companies from its markets.
So, for example, back in 2010, the global Google search engine was banned from carrying out its activities on the territory of the People's Republic of China, which was accused by the authorities of spreading information that undermines the authority of the Chinese government, distorting the history of communist China, inciting national hatred, supporting separatism, and distributing pornography.
Vague legislation has allowed Chinese authorities to protect the interests of their national companies from foreign competitors. Instagram Facebook, Twitter, Flickr, Hotmail, Pinterest, WhatsApp, Instagram, Snapchat, etc. are completely blocked on the territory of the PRC. (even the world's most popular American chess platform Chess.com it does not work stably on Chinese resources) has led to the displacement from the Chinese market not only of Western Internet sites themselves, but also of the largest business projects associated with them.
Instead, in the absence of competition, the world's largest "technological trinity" (abbreviated name: BAT) was created from the online platforms Baidu (an analogue of Google ousted from the Chinese market), Alibaba (created by Tmall/AliExpress (an analogue of Amazon) and TaoBao (an analogue of eBay)) and Tencent (created an analogue of the blocked one in China WhatsApp (WeChat messenger)), accumulating on their resources over 1 billion users worldwide and information about them. Instead of Twitter blocked in China, the Chinese microblogging service Weibo was created; instead of Facebook, Renren/QQ; instead of Wikipedia, there is the Hudong online encyclopedia; instead of Youtube, Netflix is the YoukuTudou video hosting service.
As a clear example illustrating the vagueness of legislation contributing to the displacement of foreign competitors from the Chinese market, we present the provisions of the Internet Domain Name Management Rules adopted on 08/16/2017 by the Ministry of Industry and Informatization of the People's Republic of China, according to which "domain names registered and used by any organizations or persons may not include the following content (Article 28):
1) opposing the basic principles established by the Constitution;
2) encroaching on state security, revealing state secrets, undermining state power, destroying state unity;
3) undermining the reputation and interests of the state;
4) inciting national hatred, national discrimination, destroying national unity;
5) destroying state religious policy, propagandizing sectarianism and feudal superstitions;
6) spreading rumors, disturbing public order, undermining social stability;
7) spreading obscenity, pornography, gambling, violence, terror or inciting to commit crimes;
8) insulting a person or slandering him, violating his legitimate rights and interests;
9) other content prohibited by law, administrative legislation <12>.
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<12> [ Rules for managing Internet domain names].
The blocking of the work of foreign companies in the territory of the People's Republic of China was carried out in accordance with the provisions of such regulations <13>. According to the law, the presence of prohibited content automatically entails the blocking of those sites through which it passes. The IP address of the person distributing the prohibited information is blacklisted, and they are brought to legal responsibility, up to criminal liability.
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<13> The above Rules were first adopted on 03/13/2002, and their contents also included the specified formulations. Article 27.
The Chinese standard-setter refers to prohibited information not only that which, in accordance with international standards, cannot be posted on the Internet, but also that which contradicts the official ideology of the ruling regime. Thus, according to Article 5 of the Rules for Managing and Ensuring the Security of a Computer information network on the International Internet (approved by the State Council of the People's Republic of China on 11.12.1997, amended on 08.01.2011; 14> "no organizations or individuals should, using the international Internet, produce, copy, get acquainted with and distribute" information "containing malicious slander or perverted facts, spreading false rumors, undermining public order" (paragraph 5); "undermining the reputation of state bodies" (paragraph 8); "other, violating the Constitution and laws, administrative legislation" (paragraph 9).
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<14> [Rules for managing and ensuring the security of a computer information network on the international Internet].
Internet space, mobile communications, payment systems, artificial intelligence and big data - all this works in China on Chinese platforms and is provided to users by national technology corporations. They also accumulate information coming to them (e-mail, social networks, money turnover, online purchases, movement tracking (geolocation), dating applications, etc.) and share it with the government.
On the one hand, using their own platforms makes it difficult for foreign special services to access important information about China, increasing the level of its state security, on the other hand, there is no effective mechanism for protecting personal data in China, access to them is free for the ruling party (Communist Party of China) and law enforcement officers. China has not yet adopted a law on the protection of personal data, which contributes to uncontrolled interference in the personal lives of citizens by the CPC, government and law enforcement agencies. There is every reason to believe that China's largest commercial Internet corporations are directly controlled by the ruling party.
At the same time, it should be noted that all information on a citizen is accumulated in China by private corporations, whereas in Russia it is state-owned. The unified portal of public services, on which over 100 million Russians are registered, was developed by FSUE Research Institute Voskhod, and is now managed by Rostelecom, the largest shareholder of which is the Russian Federation represented by the Federal Property Management Agency.
In the process of large-scale implementation of their own digital platforms, accompanied by the displacement of foreign Internet companies from the Chinese market, the authorities have developed filtering systems for content passing through the Chinese segment of the Internet. It also helped to protect the interests of national giants from outside competition.
One of the most famous filters was Green Dam ("Green Dam"). This "filter against pornography and other bad information" has been mandatory since July 2009 in all public places where Internet access is provided (Internet cafes, hotels, educational and government institutions, etc.) and on all computers manufactured and sold in China (including foreign brands) <15>.
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<15> [Notification of the Ministry of Industry and Information "On pre-installation of a green filter program for Internet access on computers"] (adopted on 05/19/2009 No. 226). Part 1 of the paragraph. 2.
The decision to install a mandatory filter faced opposition from major foreign computer manufacturers. Although the effect of the adopted normative document was not canceled, however, the authorities did not insist on its universal implementation. The filter was installed in a number of Chinese schools and in public places with Internet access.
Since 2003, a large-scale project called The Golden Shield Project has been implemented in China, the unofficial name is The Great Chinese Firewall, meaning an entire system for filtering the contents of the Chinese Internet. The project is a system of servers on an Internet channel between providers and international information transmission networks that filters information by certain keywords ("independence of Tibet", "events in Tiananmen Square", "pornography", etc.).
Firewalls are used by providers to protect against viruses and hackers, but they are also used to block access to certain sites. They are based on the State Crime Information Center established in 1994 by the Ministry of Public Security of the People's Republic of China. The specialists responsible for the work of the Golden Shield, using artificial intelligence, continuously monitor the activities of Internet users and stop the spread of illegal information in the Chinese segment of the Internet. With the help of the "Golden Shield", prohibited IP addresses and Internet addresses (URLs) are blocked, DNS queries are filtered, VPN connections are blocked, etc.
Digital technologies before the epidemic
By 2020, the social trust system (credit; rating) and the facial recognition system, as well as artificial intelligence and big data, have received the greatest development in China.
The system of social trust (credit) has its origins in the distant past: even under Mao Zedong in the 1950s, a system of accounting for certain categories of citizens (mainly young professionals) was created, in respect of which special folders with personal information were created in public security agencies. Subsequently, due to the development of the Internet and digital technologies, the party decided to create a digital profile for each member of society, as well as for existing organizations. In 2002 At the XVI CPC Congress, General Secretary Jiang Zemin set the task of creating a Chinese-wide social credit system. In 2007, under Hu Jintao, the State Council of the People's Republic of China adopted some opinion on the construction of a social trust system <16>. By this time, China already had its own credit history bureau, created by the People's Bank of China.
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<16> [Some opinion on the construction of a social trust system] (2007 N 17).
On 06/27/2014, the State Council of the People's Republic of China, based on the decisions of the CPC and the Plan of the 12th Five-year Plan (2011-2015), published a Program-plan for the creation of a social credit system (2014-2020), which assumed the final construction of the system and the implementation of accounting for all Chinese citizens by 2020 inclusive <17>.
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<17> [ Notification of the State Council on the publication of the Program Plan for the creation of a social credit system (2014-2020)] (2014 N 21).
On 12.06.2016, the State Council published a Guiding Opinion on the creation and improvement of mechanisms for encouraging people with a high confidence rating and punishing people who have lost confidence in order to accelerate the creation of a social credit system <18>. A voluminous normative document consisting of 27 paragraphs defined the general features and principles of the social trust system being built, and relevant policy documents began to be adopted on its basis.
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<18> [Guiding opinion of the State Council on the creation and improvement of mechanisms for encouraging persons with a high confidence rating and punishing persons who have lost confidence in order to accelerate the creation of a social credit system] (2016 N 33).
The pilot launch of the system involved assigning a certain number of points to each citizen and distributing them into groups depending on the assigned rating. Control over the collection of information and the assignment of the rating was transferred to the private commercial corporation Alibaba Group (one of the companies of the "Chinese technological trinity" BAT), whose founder, billionaire Jack Ma, is a member of the CPC.
The operational support of the social trust (credit) system by the Alibaba group of companies is not accidental. One of the main activities of the Alibaba Group of companies is e-commerce, it also owns one of the world's largest cloud computing infrastructures, media and entertainment assets. In other words, the corporation accumulates big data on more than a billion users of its services over the Internet. The largest Chinese national payment system Alipay, part of Alibaba Group, stores personal data and various information about different aspects of its users' lives, which is processed by artificial intelligence and is one of the grounds for establishing a person's rating.
An account created in the social trust (credit) system becomes a "second passport" or "reputation index" (ranking system) of a citizen: not only credit history is entered into it, but also the history of paying taxes, utility bills, criminal record, encouragement and punishment, attitude to the ruling party and generally accepted moral norms, and also, information about close relatives to form a general assessment of the personality. Even frequent job changes, which are also recorded by the system, can negatively affect the overall rating. In other words, the rating is based on data on the behavior of citizens and companies, their attitude to the ruling regime and socialist morality.
Individuals and legal entities, as well as other organizations that have lost trust, are included in a special blacklist, which is public, and the employer or counterparty checks the person on it before concluding an employment or commercial contract. If a person is included in the list, then no cooperation relationship is established with him. For the first time, such a system was put into effect by the Supreme People's Court in 2013, with respect to legal entities and other organizations, the system began to be implemented in the fall of 2019.
To date, a Single "trust" platform has been created (at https://www.creditchina.gov.cn /), which over time will turn into a nationwide credit assessment base for individuals and organizations. The assignment of a trust rating has also been tested in relation to foreign citizens and commercial enterprises.
Currently, the rating is based on four main criteria:
- honesty in public affairs;
- commercial integrity;
- behavior in society;
- judicial history.
The highest rating level is AAA (1,050 points), followed by AA - 1,000 points and A; then level B and C. The worst is D (599 points). Persons who are assigned a D rating are limited in opportunities and rights: they cannot move freely around the country; their employment is difficult (they are denied work in government institutions); they are denied social security; it is prohibited to study in prestigious schools and universities, obtain loans, receive discounts, etc. Communication with such persons lowers the rating of trustworthy citizens.
Thus, unreliable persons are automatically isolated from society, excluded from communication with its members, become outcasts, non-compliant, unworthy members of society. In any case, an applicant for a public position must have a rating of at least A, and, for example, a driver or a security guard - B.
In the development of the social trust (credit) system in China, a number of regulations have been adopted that significantly restrict the personal rights of an unreliable element. So, on 03/02/2018, the State Committee for Development and Reforms, the Civil Aviation Administration, the Office of the CPC Central Committee Commission for the Construction and Management of Spiritual Civilization, the Supreme People's Court, the Ministry of Finance, the Ministry of Labor and Social Security, the Main Tax Service, the Securities Control Committee jointly adopted:
- An opinion on the promotion of the construction of a social credit system related to the restriction of travel of specially designated seriously disbelieved persons on civil air transport at certain times <19> and
- An opinion on the promotion of the construction of a social credit system related to the restriction of travel by specially designated seriously disbelieved persons on railway transport at certain times <20>.
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<19> [Opinion on the promotion of the construction of a social credit system related to the restriction of travel of specially designated seriously distrusted persons on civil air transport at certain times] (2018 N 385).
<20> [Opinion on the promotion of the construction of a social credit system related to the restriction of travel of specially designated seriously disbelieved persons on railway transport at certain times] (2018 N 384).
According to the provisions fixed in the documents, a person with a low social rating cannot freely leave his place of residence, and in case of forgery of identity documents for the purchase of tickets, he is brought either to administrative or criminal responsibility. One of the grounds for loss of trust and prohibition of movement on railways may be, for example, "smoking on the train", "manufacture, sale of counterfeit tickets", "stowaway and refusal to pay for it", as well as numerous other grounds that arose as a result of a violation by a person of criminal, administrative, civil, tax legislation.
On 28.10.2018, the Ministry of Human Resources and Social Security announced Temporary Rules for managing the list of seriously disliked persons in the field of social insurance <21>. Article 5 of the document contains a list of acts in which organizations and relevant individuals are included in the list of persons who have lost their trust. For example, an organization providing social credit services is included in the specified list for "providing services not in accordance with the service agreement, as a result of which the amount of damage to the fund exceeded 10 thousand yuan" (paragraph 6). The organization will be on this list for 1 year, after which it will be automatically excluded (in the absence of new violations).
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<21> [Temporary rules for managing the list of persons who have seriously lost their trust in the field of social insurance].
A study of the above regulatory documents allows us to conclude that China does not provide a transparent mechanism for appealing the inclusion of an individual or organization in the list of persons who have lost trust. In other words, the downgrade occurs automatically and it is difficult to prevent this by contacting judicial or administrative authorities in practice.
In fairness, we note that the mechanism for appealing the inclusion of a person in the blacklist is provided, for example, by the Judicial Committee of the Supreme People's Court adopted on 01.07.2013, as amended on 16.01.2017, by Some provision of the Supreme People's Court on the publication of information on the list of persons who have lost confidence and are under sanctions <22>. The right to appeal to the court to express their disagreement by individuals, legal entities, and other organizations is provided for in Article 11 in three cases:
- there is no need to be included in the list of persons who have lost their trust;
- unreliability of recorded and published information, which led to a loss of trust;
- the need to exclude information about loss of trust.
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<22> [Some provisions of the Supreme People's Court on the publication of information on the list of persons who have lost confidence and are under sanctions] (2017 N 7).
According to the provisions of Article 12, the petition of citizens, legal entities and other organizations regarding the correction of lists of persons who have lost confidence must be considered by the court within 15 days from the date of receipt of the petition in writing, if there are grounds, the necessary changes are made to the lists within three working days. In their absence, the application is rejected. The rejection of the petition may be appealed by the interested party within 10 days to a higher judicial authority, which makes a final decision within 15 days. At the same time, no changes are made to the list during the consideration of the application.
To date, the exact methodology for calculating the rating, the specific reasons for its increase or decrease have not been created (perhaps the public does not know about these calculation algorithms). Therefore, many questions arise, usually related to the threat of lowering trust and the risks of being isolated from society. What, for example, should be done in cases where one of the family members with a high rating is in close contact with someone who has a low rating (parents and children; spouses; patients in the hospital)?
The criteria for increasing a person's rating are also not completely transparent and raise questions from the expert community. So, for example, for the purchase of certain types of goods through an online marketplace (online store) Taobao using the Alipay system (everything belongs to Alibaba Group), the rating is automatically increased by several points. Isn't this approach to calculating the trust rating based on the commercial interest of Alibaba Group itself, which, thanks to the algorithm created by it, increases its profits by selling goods to the public?
By the beginning of the epidemic, the work of the social trust (credit) system had been established, and it was planned to launch it nationwide in 2020. According to the State Information Center on Public Trust, by the end of 2018, about 14 million 210 thousand pieces of information had been collected on cases of violations affecting the inclusion of individuals and organizations in the blacklist of those who lost trust. This information affects 3 million 594 thousand subjects. Thus, the listed organizations and individuals are under a number of sanctions: about 1 million organizations cannot participate in tenders; 12,800 - in government procurement; 37,900 - in obtaining land plots from the government, financial support and assistance in customs payments for imported goods; 12,200 - to issue shares, etc. By the end of 2018, the courts of the People's Republic of China blacklisted 12 million 770 thousand individuals; a total of 17 million 460 thousand in the country. once it was forbidden to purchase air tickets; 5 million 470 thousand. times - train tickets; 290 thousand. to hold senior positions and/or be legal representatives of companies <23>.
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<23> [The report on the study for the year of the blacklist of those who lost trust in 2018 has been published].
Face recognition system. Along with the introduction of a social trust system, a facial recognition system (video surveillance system with face recognition function) is widely used in China, which is installed on more than 600 million cameras throughout the country, including government and commercial institutions, schools and institutes, residential complexes, pharmacies and banks. The official reason for its use was the need to combat crime. Experts also talk about the creation in China of a total system of tracking and monitoring the vital activity of a person with the ability to predict his intentions and actions in the future to take preventive measures.
Moreover, the facial recognition system identifies a person not only by face, but also by voice and gait. Facial recognition technology is actively used in the Chinese metro (Jinan, Shandong Province in eastern China). The Jinan Metro mobile application allows the user to walk in the subway with automatic fare payment using a card linked to an identity.
The facial recognition system has been successfully applied:
- when boarding the train (without presenting a ticket);
- to combat drunk drivers (high-expansion surveillance cameras on highways);
- when using video games (face scan before starting to limit the child's playing time);
- when paying ("smart stores");
- at ATMs (when withdrawing cash);
- when receiving toilet paper in public toilets (to limit the free issuance of paper in places especially popular with tourists).
In some Chinese cities, there is a "smart parking" system, which involves charging a fee through license plate recognition technology. In addition, on 12/18/2018, Alibaba Group of companies opened the first "smart hotel" in Hangzhou, providing services to guests from registration to service through a facial recognition system using artificial intelligence and robots <24>.
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<24> [ Alibaba has opened a smart hotel in Hangzhou, only the cleaners have jobs left.]
Artificial intelligence and big data (big date,). The introduction of artificial intelligence and work with big data in China also began long before the epidemic. Thus, the total number of Chinese enterprises operating on artificial intelligence technologies in 2018 exceeded 1 thousand. <25>
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<25> [ The White Paper China's industries with artificial intelligence].
08.07.2017 The State Council of the People's Republic of China, based on the results already achieved, adopted a Plan for the development of a new generation of artificial intelligence <26>, which set the task to achieve world leadership in the field of AI by 2030. The total volume of the Chinese technology industry related to artificial intelligence should exceed $22 billion by 2020, 60.3 billion by 2025, and $150 billion by 2030. The Chinese government has identified the priority areas of AI use at the present stage:
- education;
- medicine;
- care for the elderly;
- environmental protection;
- urban logistics;
- other (for example, the fight against crime).
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<26> [ Notification of the State Council on the publication of a Plan for the development of a new generation of artificial intelligence] (2017 N 35).
AI technologies and big data work are used in judicial activities. A few years ago, testing of "smart courts" was launched in which the trial is conducted in a test mode using AI, sometimes even without the participation of a judge <27>. On 12.04.2017, the Supreme People's Court of the People's Republic of China adopted an Opinion on accelerating the creation of smart courts, in which it outlined in sufficient detail the steps taken by the judicial authorities in the direction under study. In February 2019 The creation of "smart courts" was included in the People's Courts Reform Plan for the fifth five years (2019 - 2023) <28>, which outlines the use of big data technologies (court decisions, lawsuits, contracts, consultations, etc.), speech recognition, etc. in the operation of "smart courts". Thus, AI technologies were first used in criminal proceedings in January 2019 in the Shanghai court when considering a robbery case involving a group of persons (identification of a participant in the process, speech recognition, automatic presentation of evidence in the case, their verification, etc.) <29>.
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<27> [Opinion of the Supreme People's Court on accelerating the creation of smart courts] (2017 N 12).
<28> [The plan for the reform of the People's Courts for the fifth five years].
<29> [The system of intellectual assistance in criminal cases in Shanghai was first used in a court session].
On 07/22/2019, the Office of the Supreme People's Court of the People's Republic of China issued a Notice on the implementation of work on the creation of smart courts in 2019 <30>, which stated the need for all people's courts to create platforms with big data technology for the implementation of legal proceedings. Thus, artificial intelligence is gradually being introduced into court records management. AI is also experimentally used in mediation procedures.
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<30> [Notification of the Office of the Supreme People's Court "On the implementation of work on the creation of smart courts in 2019"].
AI technologies are also used by Chinese law enforcement to combat crime (predicting the likelihood of committing crimes). The created IJOP (Integrated Joint Operations Platform) system works with big data (collected using video cameras installed on streets, gas stations, schools, etc.) and identifies persons suspicious of the system through the analysis of their personal information, movement, contacts, purchases, etc. The system is used in the Xinjiang Uygur Autonomous Region (in a region with a high level of terrorist danger).
The algorithm for classifying certain citizens as suspicious persons is not legally established. Moreover, the legal regulation of artificial intelligence in China is seriously lagging behind its development: the computer reference legal systems of China do not contain a single legal act directly regulating the use of AI. First of all, this is due both to the lack of a complete understanding of the essence of artificial intelligence technologies, and to the secrecy stamp on its research. The Chinese legislator is in no hurry to develop norms defining responsibility for violation of the law as a result of the action of artificial intelligence, assuming to do so in the future, when there is certainty in the use of AI systems.
At the same time, Chinese legal bases have regulatory documents (letters) on the creation of pilot zones of innovative development in the field of artificial intelligence in four major cities of the People's Republic of China (Chongqing, Xi'an, Chengdu, Jinan). It is interesting to study the Guiding Opinion on stimulating the development of artificial intelligence in forestry and pastures, adopted by the State Administration of Forestry and Pastures on 08.11.2019. It involves the introduction of AI technologies in these sectors of the national economy <31>.
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<31> [Guiding opinion on stimulating the development of artificial intelligence in forestry and pastures] (2019 N 105).
New technologies in the fight against the pandemic
By the beginning of the coronavirus epidemic in China, the necessary base had been created for the widespread use of new technologies in the fight against the virus. After the establishment of a nationwide quarantine, there was an increase in contactless network services (online banking, online education, online medicine, online games, online dating, and the growth of other online commerce industries). The role of AI technologies in predicting the development of coronavirus and finding optimal methods to combat it has increased.
During the quarantine period, court sessions were not postponed: they were moved online. A special platform has begun to be tested: ("trial in the cloud") (in Beijing, the "cloud court" began operating on 02/03/2020). You can participate on the platform using both a laptop and a smartphone. The maximum number of participants is 8 people.
At the height of the epidemic, on 02/17/2020, the Supreme People's Court of the People's Republic of China published an important Notice for the judicial system on strengthening and standardizing procedural work online during the prevention and control of a new type of coronavirus infection <32>. According to the provisions enshrined in it, courts of all levels and instances should everywhere deploy activities for the implementation of the judicial process in online and remote modes, as well as in this mode to mediate between the parties, exchange evidence, serve court documents, etc.
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<32> [Notification on strengthening and standardization of procedural work online during the period of prevention and control of a new type of coronavirus infection] (2020 N 49).
The Supreme People's Court also calls for interrogating witnesses in criminal cases, announcing a verdict, considering mitigation of punishment, and assigning a suspended sentence remotely without inviting relevant persons and their representatives to court. Simple criminal cases in relation to crimes related to the coronavirus are also subject to remote access.
Currently, in addition to the above-mentioned various platforms and sites, using which it is possible to participate in a court hearing online (remotely), there are also in the Chinese segment of the Internet:
- A single judicial platform for the transfer of procedural documents;
- A single judicial platform for interim measures;
- Unified litigation search platform;
- A single platform for the execution of court decisions;
- The hotline of the Supreme People's Court for Procedural Services (phone number is indicated; it also exists on the platforms of lower courts), as well as an Internet platform.
The facial recognition system and AI technologies have played a special positive role in the fight against coronavirus. Artificial intelligence as a tool for population control in the context of a pandemic has proven to be highly effective. The absence of a mandatory medical mask, violation of the quarantine regime was recorded by cameras on the streets, at the entrance to institutions, airports, train stations, shopping malls, etc. The information received was instantly processed by artificial intelligence and transmitted to the law enforcement officer to take the necessary measures.
Artificial intelligence technologies have been actively used in the field of predicting the development of coronavirus and its treatment: by analyzing big data, a huge array of information about the virus was analyzed and measures necessary to combat it were developed <33>. During the fight against the pandemic, the Alibaba DAMO Institute prepared an artificial intelligence system for recognizing coronavirus in a patient with an accuracy of 96% within 20 seconds <34>.
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- <33> [In the war against the "epidemic", Chinese artificial intelligence pressed the "fast forward key"].
<34> [Artificial intelligence helps to make a diagnosis by analyzing a snapshot of one patient within 20 seconds from the moment of "taking over" at the hospital].
At the height of the pandemic, they were widely used in public places:
- automatic temperature measurement system at a distance (thermal imaging cameras;; automatic infrared thermal imaging equipment for rapid body temperature screening; Baidu technology). In addition, in China, the Chinese police, medical personnel and employees of the transport system use "smart" helmets that automatically detect the temperature of passers-by at a distance of about 2 meters (the "smart" helmet is equipped with an infrared camera and a facial recognition system, information from it is processed by AI technologies);
- a movement tracking system (via cellular applications) (provides information about movements over the last 30 days, no more than 10 free requests per day) using the so-called health code - a mini-program with a color code assigned to a person: green - free movement; yellow - self-isolation for 7 (14) days at the place of residence/stay; red - quarantine for 14 days in a specially designated place. The QR code is required to be scanned when entering a room, boarding a taxi/public transport, using shared items, paying for purchases, etc.);
- unmanned aerial vehicles (drones) with attached cameras with face recognition functions for patrolling streets, automatically determining body temperature, spraying disinfectants, identifying persons who violated the quarantine regime;
- courier robots (delivery of goods ordered through online platforms) and disinfection robots (disinfection of crowded places, quarantine zones).
At the same time, the social trust system was actively working, which automatically lowered the rating of those citizens who hid the coronavirus disease, violated the isolation regime, did not wear masks, and prevented the campaign against the virus.
At the same time, the previously adopted normative legal acts in the field of regulation of digital technologies remained in effect, new full-fledged legal documents in the field under study (with the exception of the Civil Code, some of its provisions - Articles 491, 512, 1034-1039, etc.) were not adopted in 2020.
The experimental testing of the so-called digital yuan (digital currency of electronic payments) (Digital Currency/Electronic Payment project) in mid-April became important for the process of total digitalization of China in 2020. The digital yuan is planned to be used for payments both inside the PRC and outside the Republic. No changes will be made to the legislation until the end of the experiment (so far it has been extended to four major cities). In the future, it is possible to adopt appropriate acts of law-making of a temporary and/or experimental nature. In any case, the Chinese national cryptocurrency will be fully controlled by the government and integrated into the Chinese banking system.
In the context of the above, we recall that on 03.12.2013, the People's Bank of China, together with other administrative bodies, adopted a Notice on the prevention of risks associated with bitcoins <35>, which established a ban by the Central Bank of the People's Republic of China on making any transactions with cryptocurrency by financial organizations. Thus, the placement of virtual coins was declared illegal. All national and foreign websites and platforms related to the trading and placement of cryptocurrencies are included in the register of prohibited ones, their work is blocked. At the same time, there is no such prohibition against individuals. However, there is no legal mechanism for dealing with bitcoins by individuals in China. In other words, the law does not prohibit individuals from carrying out transactions with cryptocurrency, but it also does not create conditions for this.
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<35> [Notification of measures to prevent risks associated with Bitcoins].
Conclusion
The rapid development of new technologies in China leads to a large-scale "digitization" of a person and, as a result, to the loss of their privacy in the face of total digital control by the ruling Communist Party and government agencies. The process of digitalization of Chinese society is taking place against the background of the absence of any full-fledged legal regulation of the ongoing changes that violate the personal boundaries of the individual. The party invades a citizen's personal space, which is not protected by law. The PRC has not adopted a law on the protection of personal information, and the mechanism for protecting personal rights of a citizen, enshrined in the Constitution and laws, does not work. There is a significant gap between formally mandatory regulation and the development of digital technologies.
In China, the question is not raised whether digital law is an independent branch of law or part of business, information law or an intersectoral integrated education. Based on the Chinese specifics, it can be assumed that the laws and regulations adopted in the digital sphere relate more to the sphere of ensuring state security, and only then to the civil law sphere. The main ones include the Law on State Security (07/01/2015), the Law on Countering Terrorism (12/27/2015), the Law on Internet Security (11/17/2016), the Law on Cryptography (10/26/2019) and only then, for example, the Law on Electronic Signature (08/28/2004), the Law on Electronic Commerce (08/31/2018), the Civil Code (05/28/2020).
Despite the well-known deliberate lag in the legal regulation of the digital sphere, we note the positive role digital technologies have played in the fight against coronavirus infection. Due to the fact that by the beginning of the epidemic they had already been widely introduced into society, their use during the pandemic helped protect the population from the virus.
Artificial intelligence technologies have played a special role in this process. With the help of AI, it was possible to limit the movement of the population in the shortest possible time, predict outbreaks of the epidemic, conduct large-scale studies of the virus in order to develop vaccines and treatment methods, and create the necessary medicines. In the field of regulatory regulation of artificial intelligence, China has faced a number of difficulties, which will take considerable time to overcome. However, similar problems are common to many other foreign countries <36>.
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<36> For details, see: Legal regulation of artificial intelligence in the context of a pandemic and infodemia: Monograph / Under the general editorship of V.V. Blazheev, M.A. Egorova. M.: Prospect, 2020.
The significant benefits of using digital technologies in the fight against coronavirus are offset by the risks of building a totalitarian digital society in China in which a person is monitored 24 hours a day. The created social credit system is of great concern, which turns into a kind of analogue of a criminal record for a citizen without a transparent possibility of its repayment or appeal against a decision to downgrade. Total personality control in China is not limited by law. There is a rejection of privacy, loss of anonymity with the deepening of the process of digitization of personal data by the administrative authorities of the People's Republic of China.
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