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Chinese Lawyer Challenges Filtering Software Order and Requests Public Hearing

June 11, 2009

Beijing rights defense lawyer Li Fangping (李方平) submitted a request on June 11, 2009, to Li Yizhong (李毅中), Minister of Industry and Information Technology, to hold a hearing on the ministry’s requirement that all computers sold in China – either manufactured in China or imported – be equipped with filtering software as of July 1, 2009.

The government directive, Notice Regarding Requirements for Pre-installing Green Filtering Software on Computers, was issued by the Ministry of Industry and Information Technology (MIIT) on May 19, 2009, but was only made public on June 8, 2009.  The directive has since prompted intense reactions from foreign computer manufacturers and Chinese netizens.

Li challenges the legality of the directive, citing an October 2008 notice1 sent by the State Council – China’s legislature – to government agencies requesting them to “hold hearings for items subject to examination and approval which concern the major public interests or the vital interests of the people.”

Using regulations relevant to the Chinese government’s Open Government Information policy, Li also submitted an application to MIIT requesting the ministry to make public the legal basis for the new directive and information relating to the approval process for the funds to purchase the software, the impartiality of the bidding process, and how the software would affect the protection of individual privacy and information security, etc.

The following are Li Fangping’s applications to the MIIT for a public hearing and for open government information, translated into English by Human Rights in China. (Source for Chinese original: www.canyu.com.)

 

 

Application to Ministry of Industry and Information Technology (MIIT) for Hearing

Applicant: Li Fangping, Male, 35, Lawyer with Beijing Ruifeng Law Firm
Contact Address: Room 2105A Zhongsheng Building, 2 North Fengwo Road, Haidian District, Beijing
Telephone Number: 139-0136-0413

Application to:

MIIT of the People’s Republic of China (PRC)

Minister of MIIT:

Li Yizhong

Address:

General Office of the MIIT, 13 West Chang’an Avenue, Beijing 100804

Telephone Number:

010-6601-4249

This application is for a hearing on the legitimacy and rationality of the administrative action set forth in the document Gong Xin Bu Ran (Department of Software Service Provider Industry) [2009] No. 22, issued by the MIIT, which “requests pre-installed green filtering software on computers.”
    
Facts and Reasons:

On June 9, 2009, the MIIT issued the document Gong Xin Bu Ran [2009] No. 22, entitled Notice Regarding Requirements for Pre-installing Green Filtering Software on Computers. The notification required the following: Computers manufactured and sold domestically should have the newest version of “Green Dam Youth Escort” software pre-installed when they leave their factories and imported computers should have the newest version of “Green Dam Youth Escort” pre-installed before being sold. The notification also required computer manufacturers and sellers to finish pre-installation tests for “Green Dam Youth Escort” and related work by the end of June 2009, and for all computers manufactured and sold after July 1, 2009 to have “Green Dam Youth Escort” pre-installed.
    
The applicant’s view is stated below:

The above-mentioned administrative action taken by MIIT to request computers to come with pre-installed green filtering software involves significant public interests and intimately correlates to the vital interests of the people. However, the entire process lacked legal basis and public debate.

First, the administrative action lacks legal basis. It impedes on the citizens’ right to choice by mandating that all computers must install the same software. This action might also violate Articles 32 and 37 of the Anti-Monopoly Law of the PRC.

Second, the government departments have not publicly defined the criteria for harmful information and pornographic content, nor have they explained the function of the software, which could possibly pose a tremendous danger to citizens’ individual privacy and information security.

Third, purchasing the software would cost 41.7 million yuan in government funding, but the government would only pay for the first year. The government has not specified whether the subsequent annual usage fees would be paid with government funds or would instead be passed on to the consumer.

Fourth, even if the regulation was implemented, there is the question of whether it is necessary to spend such a large amount of money on an action whose effects may not be clear, because there is other anti-virus software available on the market that has the same ability to block harmful information and such software can be uninstalled by users at any time, according to manufacturer claims.

According to the basic principles of administrative law and the directive to “research and set up an expert advisory and public opinion mechanism, and hold hearings for items subject to examination and approval which concern the public interest or the vital interests of the people” as stated in the “Opinions on Deepening the Reform of the Administrative Examination and Approval System”issuedby the General Office of the State Council on October 21, 2008, I hereby submit this application. Please act in accordance with the law.
    
Respectfully submitted to the MIIT of PRC.

Application to MIIT for Open Government Information

Applicant Information Citizen Name Li Fangping Contact Telephone Number 13901360413
Contact Address Room 2105A Zhongsheng Building, 2 North Fengwo Road, Haidian District, Beijing
Zip Code 100038 Email Address simon2974@gmail.com
Legal Representative / Other Organization: Name   Organization Code  
Business License Information  
Legal Representative   Name of Contact Person  

Contact’s Telephone Number

 

Contact’s Email Address

 
Applicant’s Signature or Stamp  
Time of Application  
Information about the Request

Purpose of Application:

Study and research

Subject

Matters concerning “Green Dam Youth Escort”: Pre-installing green Internet filtering software on computers

Description of information needed

  1. Legal basis for the Notice Regarding Requirements for Pre-installing Green Filtering Software on Computers which requires the pre-installation of the green Internet filtering software on domestically manufactured and sold computers before they leave the factories and on imported computers before they go on sale in China;
  2. Financial application and approval procedure for 41.7 million yuan allocated to purchase the software and their legal basis;
  3. The operating principle and function of “Green Dam Youth Escort” software;
  4. Basis for the decision to use the “Green Dam Youth Escort” software;
  5. Basic information regarding the manufacturers of this software;
  6. Basis and procedure for choosing manufacturers;
  7. The entire bidding process and guarantee of its impartiality;
  8. How to ensure that individual privacy and information security are effectively protected while using the software;
  9. Whether the usage costs of this software in subsequent years will be paid for with government funding or by the consumer;
  10. The criteria for the software’s definition of harmful and pornographic contents;
  11. Whether it is reasonable to dictate the installation of this software given that other anti-virus software have the ability to block harmful websites.
Department to respond  
Optional Fields

Method for supplying the information needed

Email or hard copy

Method for receiving the information

Email or hard copy

Notes

  1. All information provided by the applicant must be accurate and complete to ensure ease of contact.
  2. If the applicant is unsure of which department should respond, the “Department to respond” field can be left blank.

For more information about the government directive requiring Green Dam filtering software and the Open Government Information Regulations, see:

For more information about Li Fangping, see:

 

1. Notice of the General Office of the State Council on Forwarding the Opinions of the Ministry of Supervision and Other Authorities on Deepening the Reform of the Administrative Examination and Approval System [国务院办公厅转发监察部等部门关于深入推进行政审批制度改革意见的通知], issued by General Office of the State Council, promulgated and effective on October 17, 2008. ^