Sep 14, 2007

If a Law Itself Disobey the Principle of Law, It is A Bad Law

China has promulgated many provisions on the Internet cotrolling. According to these regulations, not only commercial organs but also any of the personal website shall "record" the owner, the IP address, the domain name to the governmental agencies. However, this provision of "recording" is acctually a kind of licensing policy since if any of the above information is changed, the site owner shall record again. Violation of this regulation will lead to a punishment of termination of website. Furthermore, according to another provision, if a website provides any function of interactive communication including message board, BBS, comment box and so on, the web owner shall get a seperate license beforehand. To obtain this license, the web owner shall take part in a workshop of "network security management" held by the government and get a certificate from it.

In accordance with the above regulations, the new storm of banning Chinese individual websites is appeared lawful since most of the owner of the personal website can not afford time and money to obtain the licenses. I will not blame the enforcement of these regulation impulsively. From the legal perspective, my doubt is firstly on the legitimacy and the rationale of the legislation. Comparing to other communication systems, the feature of the Internet is interactive. It is hardly to find a website without the interactive functions. Requiring all websites "recording" seperately is not a good regulation because it ignored the basic character of the Internet.

As for the requirement of participating the "network security worksop", I can't find any reasonable excuse -- Regardless the arrangement of substantive rights and duties, the rule of law is at least based on the due process. Even from the very utilitarian and positive perspecitve of legal theory, if a procedural regulation is impossible to be fully enforced, this procedure is unreasonable. I can hardly imagine that in the era of web 2.0, in the era of anyone who has a computer can easily creat his/her own blog, the government can provide enough workshops for all "webmasters".) So the only way of implementing the regulations is selecting specific time (for example, before some important events like the national meeting of the party) and choosing specific objects. This way is bad because it violate the basic requirement of a "harmonious" society - EQUALITY. From the basic knowledge of jurisprudence, if a law itself disobey the principle of law, it is a bad law.

In fact, even "recording" is not as easy as it seemed should be. Government website for "recording" is so slow that can not be registered in easily; the time of "permitting the recording" is unlimited. So even those abiding the provision of "website recording" will encounter many obstacles. (if you can read Chinese, click here to read a webmaster's complaint).

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