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6.09.2010

Virtual sovereignty, real punishment

We thought that the core meaning of sovereignty was supreme authority over a territory, but it seems we got it wrong. According to the White Paper on the Internet in China sovereignty extends to virtual spaces: the internet may not be land, sea, subsoil or air, but it is definitely under PRC sovereignty.

The problem of internet sovereignty has been analyzed by a number of legal scholars, political scientists and philosophers, some of whom could have contributed to the reasoning contained in the White Paper:

The internet is an important infrastructure. The internet inside of the PRC national borders is within the scope of PRC sovereignty. China's sovereignty over the internet must be respected and safeguarded. So while Chinese and foreign citizens enjoy the right and the freedom to use the internet, they should comply with PRC legislation, and safeguard network security.

The main points of the White Paper have been translated and posted on the English version of the People's Daily. If you are in China and you can't access Facebook, you should blame it on those who are unable to enjoy their freedom of expression without endangering state security.

Shall I mention that 105(2) criminal law allows to punish those whose internet posts show a mere intention to peacefully subvert the political power of the state?

So-called emergencies, as an attempt to overthrow state power, cannot by definition be foreseen. If something cannot be foreseen, then it cannot be governed in advance through the law either. But, it can be dealt with ex post, through emergency powers. Internet discussions are highly unlikely to cause the proclamation of a state of emergency - but a Schmittian logic can be seen at work in broad and vague norms on state security.

If no clear standard exists to decide what kind of internet content incites a subversion of state power, then judges may favor a more or less extensive interpretation of existing norms depending on which way the wind is blowing.

One will then be unable to foresee what will count as enjoying one's freedom of expression, and what will constitute a criminal offence. It may be posting a vignette, publishing news about an earthquake or cadre malfeasance. The power to decide when freedom of expression deserves legal protection, and when it constitutes a crime will rest with the judge, with legal norms being of limited guidance and politics playing a much more important role. The right to freedom of expression may then exist more on paper than in reality - exerting it at the wrong time may turn you into a threat to state security.











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