Legal Pushback in Hong Kong, Reaction to US Unrest, Xinjiang Surveillance (January 2021)
In this issue: How Hong Kong’s government is encountering legal hurdles in its crackdown on prodemocracy activists; the many ways Chinese state media and netizens responded to the U.S. Capitol riot, Trump’s Twitter ban, and Biden’s inauguration; and more Chinese censorship and surveillance updates
Image of the month: Bundled Bernie
This image, of US Senator Bernie Sanders of Vermont wearing handmade mittens photoshopped among a group of Chinese grandpas playing chess is one of many memes that circulated in recent weeks after a photo of the senator was taken at the inauguration of Joseph R. Biden Jr. as the 46th president of the United States on January 20. The meme reached netizens in China on Chinese news websites like Sina Finance and social media platforms like WeChat. Another collection on a Taiwanese news site featured Sanders in scenes from Star Wars and Jurassic Park films. Credit: RadiiChina
- Analysis: Beijing's Crackdown Runs into Hong Kong's Rule of Law
- In the News:
- Chinese state media, netizens respond to US Capitol riot, Trump Twitter ban
- Censorship updates: CCP cadre rules, price of censorship, COVID-19 controls
- Wuhan journalist and other netizens face jail, legal penalties
- Surveillance updates: New revelations demonstrate breadth, depth, human cost of Xinjiang surveillance
- Beyond China: Chinese media in Australia, WeChat lawsuit, 5G in the Middle East, Twitter state-media labels
- Featured Pushback: Chinese netizens exploring secure alternatives to WeChat
- What to Watch For
- Take Action
Pushback against politically motivated prosecutions is emerging from lawyers, judges, and the principles of Hong Kong’s common law system itself.
by Sarah Cook
Even as the Hong Kong government is increasing penalties for political speech and civic activism, including under the National Security Law enacted last June, the authorities are encountering some constraints on their ability to run roughshod over Hong Kong’s long-respected legal system. Hong Kong’s judiciary is a remnant of the territory’s British colonial rule, replete with the tradition of robes and wigs, but also due process, common law precedents, and independent solicitors, barristers, and judges. Perhaps it is no surprise then that pushback against politically motivated prosecutions is emerging from lawyers, judges, the international community, and the principles of the territory’s common law system itself. Events over the past month highlight these competing trends, which present an unprecedented test for the rule of law in Hong Kong.
An expanding crackdown
The month of January opened with a round of mass arrests across Hong Kong. On January 6th, Hong Kong police detained more than 50 activists and politicians under the city's National Security Law. Officials claimed they had committed “subversion” by holding a primary last July to select candidates who would represent the prodemocracy camp in Legislative Council elections, which were subsequently postponed. Police seized more than 200 digital devices from the detainees and reportedly sent them to mainland authorities for data extraction. In addition to the arrests, police visited the offices of at least three news outlets, serving warrants demanding documents related to the July primary.
Within days, authorities ordered local internet service providers to block access to an activist website, using a tactic deployed pervasively on the mainland, but rarely in Hong Kong. The blocked site, HKChronicles, is a platform that has been used by activists to dox police officers (among them, those involved in attacking protesters) and expose pro-Beijing businesses. While Hong Kong Broadband Network stated it stopped users from accessing the site on January 13th, HKChronicles editor Naomi Chan claims users had difficulties accessing the site as early as January 6th.
Then, on January 14th, police arrested 11 people for providing help to activists who sought to escape Hong Kong by boat to Taiwan last summer. Those arrested included Daniel Wong Kwok-tung, a lawyer and district councilor who had provided legal assistance to the 12 activists after their detention by mainland police. On December 30th, a Shenzhen court sentenced ten of the “Hong Kong 12” to between seven months and three years in prison for illegally crossing the border. Chinese authorities have also threatened to revoke the licenses of lawyers hired to represent them.
Legal hurdles and international pushback
These examples demonstrate how the Hong Kong government’s crackdown on political opposition is affecting a growing number of residents and forms of speech. But it is also running into perhaps unexpected legal obstacles. While the National Security Law grants authorities broad powers to criminalize political dissent, legal experts suggest that the political sensitivity of these cases, and Hong Kong’s own common law system, means authorities still need to build strong cases. Thus, police have not yet issued formal charges against any of the 50-plus activists arrested on January 6th. All but one have been released on bail—though their passports were confiscated to prevent foreign travel, and information on their devices will likely be used to dig up evidence of their alleged crimes.
On January 18th, three student activists detained last July for “inciting secession” became the first people arrested under the National Security Law to be released unconditionally by police, although officers told one of the students that they could gather more evidence and rearrest her. Two days later, British-born barrister David Perry stepped down from leading the prosecution of nine prodemocracy advocates related to a peaceful 2019 protest, after lawyers and policymakers in the UK raised ethical questions about his participation in the case.
Vocal efforts to protect judicial independence in Hong Kong also emerged over the past month from the highest echelons of the territory’s legal system. On January 11th, Andrew Cheung Kui-nung was sworn in as Hong Kong’s new chief justice. In his inaugural speech, Cheung criticized political pressure and attacks on the judiciary, remarking that it “must be and must remain an independent and impartial judiciary.”
Foreign governments are also responding to intensifying state repression in Hong Kong. On January 10th, a joint statement by the American, Australian, British, and Canadian foreign ministers expressed “serious concern” about the January 6th arrest of dozens of democratic activists. On Twitter, then Secretary of State nominee Antony Blinken called the arrests “an assault on those bravely advocating for universal rights.” In response to the arrests, Blinken’s predecessor, Mike Pompeo, announced sanctions against six officials, including the vice chairman of Beijing’s Central Leading Group on Hong Kong and Macau Affairs and the deputy director of Hong Kong’s national security office.
The crackdown on activists in Hong Kong is certain to continue throughout 2021 and could include deepening media and internet censorship, as well as questionable electoral reforms. Still, if prosecutors and judges—even those dealing with National Security Law cases—feel compelled by public and international pressure to retain not only a rule-of-law veneer but some substance of due process, then Beijing and Hong Kong officials will be left with two unattractive options. Either they allow space for such protections, resulting in potential acquittals or unconditional releases of individuals deemed to be high-profile political enemies of the Chinese Communist Party. Or they follow mainland China’s playbook, engaging in large-scale arbitrary detention and censorship—including of legal professionals themselves—further harming Hong Kong’s reputation as a rules-based global financial hub.
Ongoing international attention and pressure—not only from governments, but also from the business community—is going to be critical in tilting the scales as far as possible in the direction of retaining the rule of law and thereby allowing some hope for a freer Hong Kong to survive. For, as Professor Jerome Cohen asks in a recent article, the million dollar question remains, “How long can Hong Kong courts resist the pressure to act more like those on the mainland?”
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- State media reports on Washington DC unrest: Chinese state media covered the January 6 riot at the capitol building in Washington DC widely, and with an unusual lack of censorship. Reports for domestic and foreign audiences ranged from the openly mocking, to carefully worded factual accounts. On Twitter, Global Times’ English-language account compared the scenes in Washington to earlier protests in Hong Kong, and asked if House Speaker Nancy Pelosi would also describe the riot as “a beautiful sight to behold.” (Left unsaid was that Pelosi's comment referred not to unrest of the Hong Kong protest movement, but to a 2019 candlelight vigil commemorating the Tiananmen Square massacre.) Other reports were less sensational. Among Chinese-language outlets, a January 7 op-ed in the Beijing News was simply titled “America is in disarray,” while giving a fairly factual account of the day’s events and features screenshots from various US news outlets like CNN that are often criticized or censored in China. A brief January 6 Chinese-language report by China Central Television noted that few rioters wore masks, while a January 7 article in The Paper attempted to analyze the riot's root causes.
- Netizen responses: The riot quickly became a trending topic among Chinese readers and social media users, with various relevant hashtags trending on Sina Weibo and garnering hundreds of millions of views. Many cited the event as a sign of the decline of the United States as a superpower. According to the English-language edition of the Global Times, some netizens saw the attack as “karma” for US government support for overseas prodemocracy protest movements, like the one in Hong Kong. Other netizens, however, criticized a Communist Youth League Weibo post satirically describing the riots as “a beautiful sight to behold” as undignified. Some overseas analysts and international headlines argued that the riot will contribute to Chinese state narratives of democratic weakness in the United States. But other commentators noted that visible weaknesses in US democracy do not necessarily offset the image problems China’s authoritarian regime has faced globally. Moreover, the resilience of American democracy—as demonstrated in the weeks since the riot—could have the opposite effect. As one Weibo user commented, “The American system’s capacity to rectify mistakes is strong; it has withstood the challenge.”
- Trump Twitter ban: The banning of (now former) US President Donald Trump from all major US-based social media platforms in the riot’s wake inspired heated discussion among Chinese observers. A January 10 English-language op-ed in the Global Times portrayed the ban as revealing the “double standards of US democracy,” while Global Times chief editor Hu Xijin remarked in his own op-ed that “freedom of speech does indeed have boundaries in every society.” Some overseas Chinese activists opposed the ban due to their own experience of state censorship in China. Within China, one online poll saw nearly two-thirds of the roughly 2,700 participants voting that Twitter should not have shut down Trump’s account. But in a WeChat post, Peking University law professor He Weifang defended the right of Twitter to ban President Trump from its platform, arguing that it was a private company and the situation was distinct from state-driven censorship in China; the post was later deleted.
- New rules for CCP cadres: New revisions to the Communist Party's Regulations on Safeguarding Party Members’ Rights announced January 4 prohibit party members from publicly criticizing Chinese Communist Party (CCP) decisions. The restrictions come after several prominent cadres had spoken out against Xi Jinping in 2020, including tycoon Ren Zhiqiang and Central Party School instructor Cai Xia. Ren was sentenced in September 2020 to 18 years in prison and Cai, who lives in exile, was banned from receiving her pension.
- The price of censorship: Drawing on Chinese government documents and websites, a January 12 report by Ryan Fedasiuk of Georgetown University in the Jamestown Foundation’s China Brief estimates that since 2018, China's Cyberspace Affairs Commissions and Public Security Bureaus have spent $6.6 billion on internet censorship. The report notes that out of this total, $5.6 billion was spent on internet censorship at the county or municipal level by a nationwide network of local Cyberspace Affairs Commissions and Network Security Bureaus.
- COVID-19 information controls: One year after the start of the Wuhan lockdown on January 23, 2020, a fuller picture has emerged of how the Chinese government used censorship and propaganda to shape public sentiment on its handling of the coronavirus pandemic: A December 19, 2020, examination of thousands of leaked memos and directives by ProPublica and the New York Times found that in addition to censorship orders to remove posts mentioning Chinese doctor and whistleblower Li Wenliang, as well as push notifications alerting mobile-phone users of his death, the Chinese government also used propaganda workers and hired private companies and online commentators to “flood social sites with distracting chatter” following public anger over his passing on February 7. Despite the end of the lockdown, state efforts to manage discussion of the outbreak have not receded. In the run-up to the anniversary of the January 23 lockdown in Wuhan, censors have deleted posts critical of the government's initial handling of the outbreak, including ones with terms like “first anniversary” and “whistleblower.” In recent months, Chinese state media have launched a series of post-COVID-19 books and television programs relaying the government’s narrative and trumpet success in controlling the virus’s spread. In the lead-up to a visit to Wuhan by a team from the WHO, Chinese officials like Foreign Minister Wang Yi have continued to promote the idea that the coronavirus emerged in multiple locations around the world prior to its discovery in China—an effort to downplay the critical role that Chinese officials’ cover-up played in worsening the health crisis.
Numerous prison sentences and other legal penalties were meted out across China to activists for free speech offenses over the past month.
- Wuhan journalist jailed: On December 28, 2020, a Shanghai court sentenced lawyer-turned-citizen-journalist Zhang Zhan to four years in prison for “picking quarrels and provoking trouble.” Zhang had covered the COVID-19 outbreak in Wuhan and had uploaded more than 120 videos to YouTube prior to her arrest in May. While in detention, Zhang went on a hunger strike and was reportedly force fed by police. Authorities have detained others for reporting on the coronavirus outbreak, but Zhang is the first to receive a prison sentence.
- Writer detained: On December 16, 2020, Beijing police detained writer Du Bin for “picking quarrels and provoking trouble.” Du, a former freelance photographer for the New York Times, had made a documentary exposing torture at the notorious Masanjia labor camp. His detention came one month before the publication in Taiwan of a book on Lenin’s rule in the Soviet Union.
- Anticorruption advocate sentenced: On January 7, a court in Jiangsu sentenced anticorruption activist Li Xinde to five years in jail for “illegal business activity,” following his arrest in October 2019 after he published an article online about the wrongful conviction of a businessman.
- Lawyer’s license suspended: Also on January 7, a Beijing court suspended the license of lawyer Zhou Ze for a year after he uploaded videos to social media of police torturing his client.
- Reporter imprisoned: On January 8, a Guizhou court sentenced former journalist Zhang Jialong—who police arrested in August 2019 after he liked and retweeted messages critical of the Chinese government—to 1.5 years in prison for “picking quarrels and provoking trouble.” Zhang had been among a delegation of journalists who met with former US Secretary of State John Kerry in 2014, and urged the United States to help “tear down” the Great Firewall website-blocking system.
Surveillance updates: New revelations demonstrate breadth, depth, human cost of Xinjiang surveillance
- Facial-recognition technology patents, Alibaba claims “ethnic tag” removed: More evidence has emerged of the complicity of Chinese tech companies in deepening Chinese state surveillance over members of the minority Uighur population. According to a January 12 report by the research firm IPVM, which studies surveillance technology, in 2018 Huawei and the Chinese Academy of Sciences filed a patent application for algorithms that could purportedly identify Uighurs via facial recognition. The patent claims artificial intelligence techniques could recognize pedestrians on the basis of a number of features, including movement, posture, and “race (Han, Uyghur).” IPVM also reported that Chinese facial-recognition companies Megvii and SenseTime separately submitted patent applications in 2019 for techniques used to classify images of people based on ethnicity, including “Uighur.” Following the revelations, SenseTime and Huawei said they would amend their patents, while Megvii said it would withdraw its patent application. Huawei claimed it “opposes discrimination of all types,” but did not clarify how the discriminatory feature came to be included in the patent. In December 2020, Alibaba's cloud-computing unit also announced it would remove ethnic tags from test versions of facial-recognition software it had developed, following a December 16 report also by IPVM.
- “Safe City” documents from Shawan: A December 30 report by University of Colorado researcher Darren Byler published in ChinaFile on “Safe City” surveillance in Xinjiang provides insight into the expansion of anti-Muslim surveillance since 2017. The report, based on close examination of government documents and procurement orders, shows how local authorities in the small, majority-Han town of Shawan deployed security cameras, iris scanners, and phone scanners to create a “seamless security environment” targeting local Hui, Kazakh, and Uighur Muslims. Drawing on interviews with local Muslims and an ethnic Hui University of Washington student who was swept up in the dragnet during a visit to Xinjiang, the report also shows how these systems were combined with police checks to place non-Han Chinese citizens in Xinjiang's network of extrajudicial detention centers.
- Aksu list: A leaked list of Uighur detainees examined in a December 9 report by Human Rights Watch shows how Chinese authorities are using big-data technology to arbitrarily detain Muslims in Xinjiang. Dated from late 2018, the list from Xinjiang's Aksu Prefecture names 2,000 people flagged by the police's Integrated Joint Operations Platform for surveillance and detention. Despite Chinese government claims that technologies like IJOP are only used against criminals, analysts at Human Rights Watch say that the vast majority of the people on the list were targeted by police for nonviolent and mundane behavior like owning multiple cell phones, receiving phone calls from relatives in foreign “sensitive countries,” wearing religious clothing, using Skype, or studying the Quran. Some of the punished actions appear to have taken place years or even decades ago—such as studying the Quran in the mid-1980s, or staying overnight in another part of Xinjiang in 2013.
Beyond China: Chinese media in Australia, WeChat lawsuit, 5G in the Middle East, Twitter state-media labels
- Chinese media in Australia: A December 17 report by the Australian Strategic Policy Institute documents in detail Chinese Communist Party (CCP) influence on Chinese-language media in Australia. The report found evidence of CCP ownership or financial links to four Chinese-language media companies, while executives from at least 12 of the 24 outlets analyzed in the study were members of groups linked to Beijing’s overseas influence operations led by the CCP United Front Work Department. Seventeen of the outlets—including Chinese-language versions of public broadcasters like the Australian Broadcasting Corporation (ABC)—had members attend United Front-sponsored media forums. The report notes that the influence of these outlets is amplified through the popularity of WeChat (as well as incentives for foreign outlets to join the Chinese-based version of it, which is subject to censorship), and that the heavy CCP influence on the Chinese-media landscape in the country means it no longer reflects the diversity of the local Chinese community.
- Huawei in the Middle East, Indonesia, Sweden: According to a December 16 article in the Diplomat, Huawei continues to make inroads in fifth-generation (5G) technology for mobile networks and cloud-computing markets in the Middle East, and especially the Gulf countries, with 11 telecommunications firms in countries like the United Arab Emirates (UAE), Saudi Arabia, and Bahrain signing large 5G contracts with Huawei since 2019. In Indonesia, the company also signed a memorandum of understanding in October with the Presidential Staff Office to provide technology-focused vocational programs for 100,000 Indonesians. As the country transitions from 3G and 4G networks to 5G, some cybersecurity experts in the country have raised concerns about the strong presence of Huawei and ZTE, another Chinese telecommunications company, in the country’s infrastructure. In contrast, on January 14, a Swedish court dismissed Huawei's appeal of a Swedish government ban on the company’s participation in the construction of the country's 5G network. The ban, made on national security grounds, also targeted ZTE.
- UK Vlogger deletes video with Chinese government critic: After the United Kingdom–based Malaysian born comedian Nigel Ng (otherwise known as “Uncle Roger”) did a joint episode with American food vlogger Mike Chen, he faced backlash over Chen’s past criticism of the Chinese government, including an Instagram post about the 1989 Tiananmen Massacre, as well as his practice of Falun Gong. Ng deleted the video in an apparent act of self-censorship and on January 12 posted an apology to his Chinese fans over Weibo for the “bad social impact” he said it had caused.
- Chinese state media engagement drops after being tagged “state-affiliated”: A January 18 analysis by the China Media Project found that user interaction with Chinese state media outlets on Twitter declined following the platform’s August 2020 decision to label them as “state-affiliated.” In the 50 days after the decision, the number of likes and retweets to accounts run by Xinhua, People’s Daily, and China Global Television Network dropped by over 20 percent per tweet. Researchers analyzed an additional 30 official accounts on the network and found that most showed “significantly fewer shares and likes.”
- Zoom employee indicted for Tiananmen Square censorship: On December 18, prosecutors in New York filed charges against an employee of Zoom accused of disrupting meetings commemorating the anniversary of the Tiananmen Square massacre. According to the US Department of Justice, Xinjiang Jin, who is based in China and served as the company’s primary liaison to Chinese law enforcement, is accused of conspiring to disrupt meetings in May and June 2020 and to block accounts of US-based activists, including through the use of “fabricated evidence of TOS (terms of service) violations to provide justification.”
- California WeChat users sue Tencent: On January 8, a group of WeChat users sued Tencent in a California court for allegedly violating their right to privacy by monitoring and censoring their communications. The plaintiffs, who included six anonymous users and the Washington DC-based prodemocracy group Citizen Powers Initiative for China, claim that WeChat froze their accounts for comments they made on the platform perceived as critical of the Chinese government, in some cases causing damage to their business as well as personal lives. While WeChat’s monitoring and periodic censorship of overseas users, including in the United States, has been widely documented, theirs is the first lawsuit filed by affected users.
As censorship and surveillance on WeChat has intensified in recent years—and with it, growing awareness of the restrictions among users—some Chinese netizens appear to be seeking out alternative and more secure messaging apps. The encrypted platform Telegram has amassed over 5 million downloads from Chinese Apple app stores since 2015, while Signal had about 1.59 million iOS downloads during the same period, according to data from Apptopia cited by the Wall Street Journal. User bases for both platforms further increased during the first weeks of January 2021. The Chinese downloads are in line with a global trend toward more secure apps in the wake of disclosures that WhatsApp was planning to share more user data with its parent company, Facebook, and as many high-profile figures in the tech sector and beyond are more actively discussing or recommending encryption. The downloads also reflect the availability of the apps on the iOS Apple stores without the need for a virtual private network (VPN). Accessing the platforms on Android operating systems is more cumbersome, but users with a VPN can download the apps from Google Play. Making an account on certain apps like Signal, however, requires a phone number, which are often tied to users’ offline identities in China.
Anecdotal evidence suggests that the growing popularity of encrypted platforms may be driven in part by WeChat users who were previously put off by the hassle of VPNs, but became disillusioned with WeChat and begin seeking out technology that offers access to content from outside the so-called Great Firewall. Moreover, as WeChat has faced a potential ban in the United States, some members of the Chinese diaspora have reportedly been shifting to Signal or Telegram and introducing their friends and relatives back in China to the services.
Despite these shifts, WeChat remains ubiquitous in China, and it is difficult to function in daily personal and professional life without it. But those downloading alternative messaging apps may be using WeChat for banking, shopping, and other services, and other platforms to access and share politically sensitive information or breaking news that would otherwise be censored or penalized on WeChat.
- Biden administration’s first actions on China human rights, technology: On January 20, Joseph R. Biden Jr. became the 46th president of the United States. Although observers anticipate some changes compared to the Trump administration, initial signs, appointments, and nominees point to likely continuity on key issues such as a strong response to egregious rights violations against Uighur Muslims, engagement with Taiwan as a democratic ally, and attention to Beijing’s disinformation and global media influence. As Biden was giving his inaugural speech, the Chinese leadership appeared to send a warning message, however, announcing visa restrictions and other sanctions on 28 former Trump administration officials—including cabinet members and National Security Council staff—who had been critical of Beijing or visited Taiwan. Watch for how and if the Biden administration responds, and what first actions it takes to tackle the challenges to democracy and free expression, including in the United States, posed by the Chinese Communist Party.
- The fate of Jack Ma: Alibaba founder and one of the richest men in China, Jack Ma, has remains in headlines and the focus of Sina Weibo commentary after largely disappearing from the public eye in late October, raising suspicions that he may be facing legal trouble after regulators abruptly suspended an initial public offering for his fintech company Ant Group. Ma resurfaced briefly on January 20, participating virtually in an annual event he hosts to recognize rural teachers, but some observers noted that this does not necessarily mean he is in the clear. Watch for any additional news on legal troubles or restrictions on his freedom and communication.
- Vaccine disinformation: Although China has garnered praise for prioritizing developing countries in its coronavirus vaccine distribution program, questions have emerged about their efficacy. Data from Brazil indicates the vaccine are only 50.35 percent effective, rather than the 78 percent claimed by Sinovac. Certain Chinese state news outlets and foreign ministry social media accounts have not only downplayed such concerns, but have amplified perceived dangers and other misinformation about more effective competitor vaccines produced in the United States. In a January 19 article, CNN’s James Griffith cited several such examples. Watch for whether this trend continues and other disinformation tactics—like inauthentic bot accounts—are found promoting similar narratives.
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