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Rethinking Chinese Modes of Social Control and Cybercrime Prevention/李興安法律論文網
Rethinking Chinese Modes of
Social Control and Cybercrime Prevention
Li Xingan 1
Introduction
As digital technologies has advanced over the past 50-odd years with a force unprecedented in history, governments, businesses and people around the world have been affected immeasurably. The already enormous and exponentially growing capacities for electronic storage, transmission and rapid manipulation of binary data changed the modern landscape virtually overnight. The changes have included substantial benefits. However, such fundamental restructuring in society also results in certain disadvantages, on all levels. Our vulnerability increases with the perceived value of and reliance on the technologies. Increased opportunities for the industrious to be more productive also allow the less-upright new avenues for malevolence.2 If cyberspace is a type of community, a giant neighbourhood made up of networked computer users around the world, then it seems natural that many elements of a traditional society can be found taking shape as bits and bytes. With electronic commerce comes electronic merchants, plugged-in educators provide online education, and doctors meet with patients in offices on-line. It should come as no surprise that there are also cyber criminals committing cybercrimes.3
In China, the wording of Internet is that it is a modern tool in an ancient land.4 It is an environment that takes nerves and offers big returns but also possible catastrophic loses.5 Cybercrime is paid close attention due to its high speed of increase of 30 percent per annum. As late as in 1997, the Criminal Law of P. R. China provides the basis of conviction and punishments. Together with several other laws and regulations, a legal system is being formed to suppress the spread of the so-called new century's pestilence in the cyber space. In some other country, writers doubt that explosion of new and pertinent statutory laws over the past two decades reflects society's attempts to wrestle with an ancient phenomenon in a modern context.6 It remains to be seen whether the current approaches to deter and redress cybercrime will prove successful.7
The invention of computer was a bit later than atom bomb. But atom bomb is born a killing tool, while computer is the extension of human wisdom, created as a help to human beings to realise welfare. They are seemingly different at this point. Outlook on value is, however, always the opinions of those who look at things through coloured spectacles. If something in common have got to be picked, it may be said that the atom bomb is the tool by which someone conquers others, while computer is the tool by which they subjugate themselves. If computer is utilised as the tools of self-subjugation, its essence is realised. Someone nevertheless, uses computer as the tool to conq
uer others, and conquer society. That should be regarded as the artificial alienation of its essence, when computer in essence degenerates to the extent that it is not different from the atom bomb.
Network is usually thought as that its establishment and popularisation will change the ways of the existence and life of human beings. And those who control and grasp the network are the dominators of the future life of human beings. Those who grasp the information, control the network, will possess the whole world. Thus, a series of social problem, of which the most serious is cybercrime, have an inkling of the matter. Although there are different standards to defining a crime, surprisingly, a framework of common recognition about cybercrime is reached as yet. As the rise of the network, cybercrime surmounts the limits of material and spirit, becoming the phenomenon that attracts the attention and deserves the reprimand by the whole world. At this point, even the creators of the atom bomb would be surprised at the historical effect emerges from the invention of those who made a computer. But today, those who are neither the creators of the first atom bombs nor the inventors of the computer have to confront with cybercrime.
I. Situation of Cybercrimes in China
i. Historical development of cybercrime in China
The first cybercrimes took place in China in mid-1980s, 20 years later than in USA. The banking system became the first victim from which money was embezzled, misappropriated and defrauded. The first period began from midst of 1980s, and ended in the midst of 1990s.
In this period, the forms of cybercrime were simple. Cybercrimes were mainly crimes against property; especially those committed in one's duty. In the meantime, the number of the cases is few, while the harm of the cybercrimes was great. It evoked wide social repercussions. Chinese began to be vigilant: there exists such a kind of monster, called cybercrime.
Central issues drawing public attentions was on one occasion focused on computer viruses, because the "Ping Pong" virus, the first virus that sneaked into the Chinese boundary via technical route, made the computer users, who never set up defences before, turned pale at the mere mention of computer virus. Then the harmfulness of the cybercrime was considerably critical. Computer viruses occupy the system resources, and slow down the operating, break the computer down, damage and delete data. Creating and spreading computer viruses was an important form of cybercrime, which is so difficult to investigate that that the detection rate is rare. Computer viruses have broken down some stock exchanges and supermarkets then. In 1989, viruses of political propaganda emerged. Only then, Chinese government realised that cybercrime is really a "crime" but not a "game".
The second period of cybercrime in China began from 1996 with the spread of network. The Chin
ese economy is developing rapidly, creating a growing demand for newer and better information technologies. China is becoming more and more open to the outside world, participating in the world trend toward the construction of a global information infrastructure.8 Network, however, was developed somewhat lately. The first e-mail from China to the outside world was sent in 1987. The first Chinese network connected to the outside world was the China Academic Network (CANET), established in 1988.9 The first commercial accounts were established in 1995. At that time, about 15,000 people were online.10 Since then, the Internet has seen explosive growth in China. 1996 witnessed a 4x increase in the number of service providers and a 10x increase in the number of subscribers.11 China has about 20 Internet Service Providers (ISP) and about 100,000 users.12 According to reports from the China Internet Network Information Centre, the number of Internet users in China grew to 45.8 million users by July 2002. Many studies indicate that the number of Net users in China is roughly doubling every year or two. Even if these studies exaggerate the number of users, there are clear indications of rapid Internet growth in China.
ii. Definition of cybercrime
Mimicking real life, crimes and criminals come in all varieties on the Internet,13 ranging from the catastrophic to the merely annoying.14 So, defined broadly, the term "cybercrime" could reasonably include a wide variety of criminal offencses, activities, or issues. The potential scope is even larger when using the frequent companion or substitute term "computer-related crime." As the phrase is evolving into a term of art, the narrower set of meanings has become more prevalent in the literature in the western world. In China, the term is the same from the beginning, pronounced as "Jisuanji Fanzui", i.e., computer crime. But there is never an official term for it. The crimes provided in the criminal law are more complicated.
In the academic circles, a variety of definitions have been introduced from the Western and put forward by themselves since early 1980s, including either the definitions in the broad sense or in the narrow sense. Most of them are derived from the Western harbingers, along with the translation into Chinese and publication in China of books and articles. For example, those definitions of a Western style by the Department of Justice of USA in 1979, stating that a cybercrime is any illegal act for which knowledge of computer technologies is essential for its perpetration, investigation, or prosecution. This definition was too broad and has since been further refined by new or modified state and federal criminal statutes. Another widely cited definition is by OECD. Both of them were brought into the definition in the broad sense when discussed. As for the definition in the narrow sense, one of the most typical examples is taken from the Act of data, Sweden.
The later study saw some rational thinking about the issue, and some definitions came into being which possess the Chinese style. For example, a definition in 1993 read as: "Cybercrime is the crime committed in which the computer system is utilised as a tool or aimed as a target."15
The definitions introduced to China and raised by Chinese scholars have profound academic significance on the one hand; they are regarded as wanting, however, in relationship with the stagnancy of the technological development and the characteristics of cyber space in the Chinese context, on the other hand. That is because that definitions in Criminal Law of P. R. China, 1997 are widely explained and accepted as the only scientific ones. The tradition of explanatory jurisprudence controls and decides the ideas of most of the Chinese jurists.
Anyway, it sounds outdated now to talk about some extra definitions of computer crime in China after the Criminal Law, which provides the computer crime in articles 285, 286 and 287 in the Section I Crimes of Disrupting Public Order, Chapter VI Crimes of Disrupting the Order of Social Administration.
Computer crime is that crime in which computer information systems are the target of crime. A comprehensive definition can be reached as acts of that who violates state regulations and intrudes into computer systems with information concerning state affairs, construction of defense facilities, and sophisticated science and technology; or violates states regulations and deletes, alters, adds, and interferes in computer information systems, causing abnormal operations of the systems and grave consequences; or violates state regulations and deletes, alters, or adds the data or application programs installed in or processed and transmitted by the computer systems, and causes grave consequences; or deliberately creates and propagates computer virus and other programs which sabotage the normal operation of the computer system and cause grave consequences.
According to the Criminal Law, crime in which computer is used as a tool, is no longer regarded as a computer crime. Whoever uses a computer for financial fraud, theft, corruption, misappropriation of public funds, stealing state secrets, or other crimes is not guilty of computer crime but other crimes.
Unfortunately, that is not true when we think that the definition is not of only nominal meaning. In actual fact, cybercrimes emerge in China cover quite wide a range and a large scale. In discussing the problem of cybercrime in China, we should use the term in the sociological or criminological sense but not limited to the narrowly criminal sense. In China, according to the laws and regulations, there are 15 aspects that were criminalised:16
1. Violating relevant state laws and invading computer information systems containing information about state affairs, state defense and the most advanced science and technology
of the state;
2. Producing and spreading computer viruses and establishing devastating programs to attack computer systems or communications networks, thus causing damage to such systems or networks;
3. Violating relevant state laws, arbitrarily stopping the operation of computer networks or communications services, thereby interrupting normal operations of such networks or services;
4. Spreading rumours, slander or other information via the Internet for the purpose of overthrowing the state government, overthrowing the socialist system, or breaking up the country and destroying the country's unity;
5. Stealing or leaking state-classified information or military secrets via the Internet;
6. Igniting racial, ethnic hatred and discrimination, and destroying racial and ethnic unity via the Internet;
7. Organising cults or contacting cult members via the Internet to destroy the implementation of state laws and administrative regulations;
8. Engaging in swindles and burglary via the Internet;
9. Selling defective products or making false claims on commodities and services via the Internet;
10. Concocting and spreading false information via the Internet to influence securities trading and futures trading;
11. Establishing pornographic Web sites, Web pages, or providing links to pornographic sites on the Internet to spread such information, including those from books and magazines, motion pictures, video and audio products, and still images;
12. Insulting other people or fabricating stories to slander others via the Internet;
13. Illegally intercepting, changing, or deleting other people's e-mail or other data information, thus infringing upon other people's freedom of communication;
14. Infringing upon other people's rights to intellectual property via the Internet;
15. Damaging other people's business reputation and product reputation via the Internet.
There are still more academically induced categories. Practical crimes that are related to computer are perhaps found everywhere in the criminal law, from crimes against the national security to crimes against economy, from crimes against person to crimes against property, etc. Cybercrimes may be included in every chapter of the Criminal Law of P.R.C., according to their nature. This is determined by the methodology of the Chinese mode of thinking, which is on the same basis as the repealed system of guilty analogy.
iii. Phenomenon and situation of cybercrime in China
In the field of network, China is an up-and-coming youngster. Now, the network in China is developing with irresistible force. As for whether it will be confronted with a bottleneck at a certain extent, that's the topic of other interests. The momentum now is inevitably embodied with the gradients of exaggerations, and has the factor of network bubble. I do not share the common ideas with those who are unrealistically optimistic, becaus
e people in the vast rural areas restricted by financial conditions in the process of possessing computer and accessing to the network. It, however, began to take shape. Under these circumstances, network poses problems in Chinese society and Chinese legal system in many ways. Cybercrime and the network are closely associated with each other. The more popularised the network, the higher possibility, probability and the rate of occurrence of cybercrime. If the crime in the society also abides by the rule of saturation, the increase of the crime will to some extent be a portion of the total crimes, but not aggrandise independently sine die. Other crimes will decrease.
The group of potential criminals, opportunities for crime and the situation of crime are basically stable; cybercrime is like traditional crime, deserves punishment and prevention, but not hatred and extermination. The social history has already provided us with instances for possible reference. Chinese legislature and government should treat and handle the problem of cybercrime in a ordinary state of mind, keeping calm and reasonable, but not being flustered, confused, as if faced with a formidable enemy, has fleeing army's suspicion of danger at the slightest sound, all grass and trees are mistaken for enemy troops.
Making a comprehensive survey to the developing tendency of crime in the main countries in the world in recent years, in the context of rapid expansion of the network, the total sum of crime does not increase, otherwise, it decreases, for example, in the USA, UK, Canada, German, France, the Netherlands, Denmark, Ireland, etc (In some other countries, increased). This further shows that the resources of crime, including criminal human resources, within a country and all over the world are as limited as that of economy.
In the past, the more there were those who were busy running about to commit crimes, the less those who sat there to commit crimes by way of cudgelling their brains to evolve an idea. While the more there are those who commit crimes by the means of manipulating the keyboards, utilising digits, compiling programmes, practising deception, devising strategies within a command tent, determining the victory in the battle field of one thousand km far away from, the less there are those who commit crimes by means of running about, taking greater and more risks. With the right know-how, somebody can achieve a lot more in a lot shorter period of time [on the Web] with no physical danger. Most advanced Internet criminals have everything to gain and almost nothing to lose, if they can be clever enough to cover their electronic tracks. Judging by the small number of arrests each year, most Internet criminals are indeed clever enough to avoid detection.17
The change of investments of crimes, is a factor affecting the quota of various categories of crimes in the situation of crime in a country. Macroscopically, the relatio
nship between the fields of criminal investment and that of the capital investment is complicated. Sometimes they will deviate from each other; sometimes they will partly overlap, sometimes they will completely coincide.
For example, in the late 1970s, at the beginning of the policy of reformation and opening to the outer world was carried out in China, violent crimes appeared prominently. It is just the first mode of the relationship.
Thereafter, since 1980s, the economic crimes cause a temporary clamour. It is just the second mode of the relationship.
From late 1990s, besides the organised crime and so forth that attracts common attention, cybercrime is getting rampant. It is just the third mode of the relationship. Now, it is in the period when the fields of criminal investment and that of the capital investment coincide. Here, the so-called investment, should be regarded as supplementary investment. The increase of the criminal investment, the increase of the capital investment, the process of the increase synchronises.
Therefore, corresponding relationship of investment accumulation arises. With the help of the term "criminal investment", some problem could be solved: one is that of criminal resources that could be used in the society, one is that of criminal investment and criminal product, one is that of the saturation of crime, one is that of the tendency of the crime.
Network may play an active role in the control of crime. One who uses the network, consumes time, energy and intellect. Cybercrime requires relevant computer knowledge. To grasp the knowledge, it again need the study process. The success of cybercrime is not so easy as theft, robbery, fraud, embezzlement and the like in the past time. If more and more people, spend more and more time using network, more and more people spend more and more time committing crimes that are more difficult to succeed, then, the power that the social control need will change to the management of the network. The mode of social control also changes.
The problem is that the process of the change is stagnant. Furthermore, in the change, someone could not understand it but be surprised at it in their intrinsic notions. They become the most wide followers of those who exaggerate the cybercrimes. They are just those bureaucrats who sit in the offices eyeing covetously others and want to teach them a lesson, but not technicians with kind and pleasant countenance. The exaggeration by the media misleads the bureaucrats to take the legislative and judicial modes under the guidance of principle of heavy penalty. This is a vicious circle. Conversely, the media report that, look at the justice, killing a computer criminal by shooting. They reap the fees of more advertisements without lifting a finger. This is just the modernised version of a Chinese ancient allusion: "When the snipe and the clam grapple, the fisherman profits."
> The another effect of exaggeration of the media, is that it itself pass on the criminal skill. The potential criminals get known the cybercrime, get the ability to commit it from being ignorant of it and being unable to do, undergoing a process of learning from the propaganda of the media. From the point of view of the prevention of the crime in the modern society, media sometimes become the most reprimandable spreaders of crime. In the aspect of cybercrime, media play a role adding fuel to the flames, and enlightening the benighted. Some of them wear the legal veil, with the protection of freedom of press, make irresponsible remarks. Hereby I do not advocate to limit freedom of press, but freedom of press should benefit to the existence and development of the civilised society, but not do harm to it.
In brief, I tend to draw a conclusion that the network beneficial to the social control, and to negate the exaggeration of the media-cybercrime is not as serious as murder and arson. And The number of people who are currently walking around on the streets with bad intentions and the capability [to commit crime] far exceeds the number of people who can do the same on the Web.18
In fact, in 2001, the number of cybercrime cases in China topped 4,500, reflecting a 70 percent increase. The crimes influenced the spreading of pornography, fund embezzling and sending of computer viruses. Among the total millions of criminal cases, it may be said that they are only rarity of rarities. People pay serious attention to them is because that they are related with the high technology. Exaggerating the cybercrime is the product of the media, including websites. Some media are convenient to exaggerate, willing to exaggerate-exaggerating make a furore effect, increase ratio of clicking their websites and bargaining counters in attracting advertisements, from which they can make more money. Thus the effect of the exaggeration appear to the world that the situation of cybercrime in China is desperately serious. In fact, it is only a kind of crime of a new face, after a sober survey.
II. Roles of network in cybercrime and challenge to China
i. Network as a tool
A network is a collection of terminals, computers, servers, and components which allows for the easy flow of data and use of resources between one another.19 It is what is different from the conventional tools, means and implements. It is wide inter connected without the limits of time and boundary of space. With it, hackers intrude into the territories that do not belong to them: others' computer, websites, E-mail boxes and the like, where others' data, secrets, privacy and electronic property are stored. And the term "others" might vary from organisations to individuals. Among these hackers, those who have ever blasphemed the Chinese government is still at large.
On October 26th, 1998, the Chinese government proudly announced the offic
ial opening of the official China Human Rights web site. Within a day of the government's announcement, Bronc Buster, from the cracker group Legions of the Underground, hacked his way into the site, leaving this message in place of the original site contents, saying that: "Chinas people have no rights at all, never mind human rights. I really can't believe our government deals with them. They censor, murder, torture, maim, and do everything we take for granite left the earth with the middle ages. The Chinese communist government is made out a gang of 100+ year old thugs and bullies who hide in seclusion. This pitiful effort of trying to change the hearts and minds of the world is a joke!"
The hacked site was, surprisingly, left online for nearly 36 hours and then replaced without comment from the China Human Rights site or any other official state spokesperson.
This is only one of the incidents by the hackers, who used the Network as a tool to commit their attack.
ii. Network as a medium
As a form of media, network has its advantages that the press and broadcasting do not. It surpasses the limits of time and space, languages and traffic, and law. Various of political incite, libel, rumour and superstition rush up in a crowd, mislead the public, go even farther than traditional media. Especially in countries that the images of the governments are vulnerable, usually will suffer severe setbacks from the propaganda, which that China is confronted with reveal as the websites managed by those who advocate the independence of Taiwan, Tibet, East Turkistan and Southern Mongolia; by Falungong, exiles of June 4 Tiananmen incident, human rights groups, members of democratic movements, and other dissidents; by international anti-China forces. These websites are always publish their opinion, put forward proofs that are harmful to the government but beneficial to them.
Someone said that the "Fast-growing Internet is China's new 'Democracy Wall' ".20 The development of the network is testing Chinese politics.
A survey on impact of Internet on value orientations revealed that Communism has become the least popular value orientation among Chinese audiences, whereas Post-materialism has already been adopted by a significant portion (about a quarter) of the populace. Compared with similar surveys in the 1980s, this represents both a sharp departures from the past and an unfolding path into the future. Although Materialism has become the prevalent value orientation among the Chinese populace, there is reason to believe that it will gradually fade out from its dominance and shift to Post-materialism. For example, there is an almost imperceptible decline in Post-materialism and increase in Materialism along the age dimension, with Post-materialism being more popular than Materialism among the youngest cohort. All things considered, there are at least three areas that can be pursued along this line o
f research in the future: (a) cross-validating the measurement of the three value orientations, (b) monitoring the dynamic process of the rise and fall among the value orientations, and (c) exploring the consequences of the value orientations.21
The Internet poses more serious problem to the Chinese government that: 1) While the government can exert some control over the information posted online by blocking sites and enforcing censorship regulations, state control over the Internet is diminishing. 2) A wealth of information can be found online from foreign sites and other sources that directly contradict the party's spin on local events and crises. 3) Dissident material online can easily be distributed via e-mail. The government has already shut down several pro-democracy sites, but new ones rapidly take their place. 4) The Internet has created a shift in communication that allows people to speak en masse. Hostility towards the government can grow and pool. 5)The Internet is a powerful tool for organising and empowering forces that offer alternative ideologies to the Chinese Communist Party, such as the Falun Gong. 6) The Internet contributes to the economic independence of the people of China. The entrepreneurial, individualistic spirit that the growth of Internet commerce engenders would seem to contradict Communist principles.
Libel, rumour and superstition are also prevailing. Chinese government has already been aware of that the people will be involved in the vast expanse of the "anti-revolutionary" information and gradually change the situation that the CCP unifying the whole country under its dictatorship.
iii. Network as a route
Cyber criminals can defy the conventional jurisdictional realms of sovereign nations, originating an attack from almost any computer in the world, passing it across multiple national boundaries, or designing attacks that appear to be originating from foreign sources. Such techniques dramatically increase both the technical and legal complexities of investigating and prosecuting cybercrimes.22
Using software tools installed on a computer in a remote location, hackers can break into computer systems to steal data, plant viruses or Trojan horses, or works mischief of a less serious sort by changing user names or passwords.23
Corporations, like governments, love to spy on the enemy. Networked systems provide new opportunities for this, as hackers-for-hire retrieve information about product development and marketing strategies, rarely leaving behind any evidence of the theft.24
Piracy in China is the "revolt and attack against the software imperialism". In the websites managed by Chinese, several of new and old software can be downloaded easily. Some websites, as well as forest outlaws, are devoted to this kind of "charities", similar to providing relief to the poor. These acts, though belong to deviance and crime, producers of software shou
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