What do Shenzhen’s Draft Public Security Video Regulations mean for Privacy Rights?

Song Changlin

Public safety camera on Shenzhen street

This paper focuses on the protection of privacy rights under the Public Security Video Information System (Video System) in Shenzhen. Here, Video System refers to the CCTV used for the purposes of public security. Shenzhen is one of the most important cities in China and it has done much work in the construction of this System. Shenzhen has recently drafted the Shenzhen Special Economic Zone Public Security Video Information System Management Regulations (Regulations)[1]. I will discuss whether the Regulations violates people’s privacy rights in Shenzhen. The first part introduces the development of the Video System, the second part introduces the relevant privacy law in China and the third part analyzes the impact of these Regulations on individuals’ privacy rights.

  1. Introduction

China is focusing on the construction of its Video System for the purpose of Harmonious Society because the government believes that the Video System can be useful in crime reduction[2]. Due to the development of artificial intelligence, big data and cloud technology, the use of the Video System is becoming a more common practice.

  1. Relevant Law in China

Privacy rights in China are regulated by three different bodies of law: the Constitution, departmental law (laws governing special areas of law), and regulations. The third kind is comprised of the regulations that are published by Ministries and local governments.

In the Constitution, Article 38, Article 39 and Article 40 are used to protect citizens’ human dignity, living places and freedom and security of communication.[3]However, in fact, courts in China will not accept a claim based on an infringement of constitutional rights. In China’s Civil Code, Article 110 says that “a natural person has the right to privacy”, and Article 111 says that “a natural person’s personal data is protected by law.”[4] In the Tort Liability Law, Article 2 says that citizens have privacy rights[5]. The Tort Liability Law and China’s Civil Code, however, are too vague and, as such, are inadequate in facing the privacy challenges that arise from the use of the Video System. Moreover, there are no specific definitions or elements of civilians’ privacy rights in relevant judicial interpretations. Thus, regulations will play a more important role since they are more specific and practicable.

 Relevant regulations are published by ministries and local governments. For example, Guangdong Province published Guangdong Province Public Security Video Image Information Video System Management Measures. Regulations generally, however, do not define what privacy rights are, although they do contain some principles of protecting privacy rights within them.

  1. Regulations in Shenzhen

Shenzhen will implement Regulations pertaining to the use of Video System. These regulations aim at creating a balance between the use of the Video System and the protection of privacy rights in public places. In article 1, it states that the primary purpose of the regulations is to plan, construct, implement, and manage the Video System in Shenzhen. Then it proceeds to state that protecting civilians’ rights is also part of its purpose. However, the government pays less attention to the protection of privacy rights in the Video System.

As for the definition of public places, even though the Regulations do not provide a specific meaning, one can be inferred. In Section 2, Article 8 describes public places that should install theVideo System as those places involved in public security, including important units and facilities. For example, the Regulations includes airports, train stations, TV stations, governments, and shopping areas. They should all be considered  to be “public places.” The definition is too broad because it includes every place in this society. On the other hand, Article 9 lists places that are prohibited from installing the Video System. The places include rooms in hotels, dormitories, public bathrooms, locker rooms, nursing rooms or places that involve citizens’ privacy rights.

However, some weaknesses still exist in the Regulations, which leads to less protection of privacy rights. Unlike other jurisdictions (for example, UK), the Regulations do not set up a deadline for deleting the information. Moreover, the Regulations do not address the issue of oversight over the Police.

3A. No Deadline for Deletion

In the Regulations, there are no rules providing a time frame after which the information collected on citizens is required to be deleted, which increases the possibility of violating people’s privacy rights. Article 28 concerns the time limit for storing video information. It states that the information should be stored for no less than 30 days. Meanwhile, if information is related to governmental efforts for countering terrorism, the time of storage should be extended to no less than 90 days. However, there is no upper limit for keeping the video information.

 The lack of such a time limitation on data retention might violate people’s privacy rights. Why is it important to delete personal information? The stated aim of collecting video or image information is not to punish people. Instead, the goal is to maintain the stability and security of society. Thus, when the original aim is achieved, it is not essential to keep the information. If useless information is not deleted, it would constitute an archive (档案) of everyone.

In China, such archives record one’s education, working experience, and work evaluations. Archives are used to evaluate one’s moral quality because one’s archives will record what he has done in the past. Activities that are recorded could either be good or bad. For example, when one pursues a career in civil service or seeks a promotion in the government, archives will be accessed to determine whether this person is qualified. Due to the development of face identification, a person can easily be tracked. If someday in interviewing civil servants, the Shenzhen Government wants to access the Video System to find out what candidates did in the past, they can easily uncover a certain person’s behavior if they have been recorded by the System. Although it is an employer’s rights to perform a background check of one person, in my view, the background check should have limitations. the System makes one’s life be totally recorded. In this circumstance, the System becomes a civilian monitoring system.

Moreover,  if the Shenzhen Government does not plan to access the retained information, there is still the risk of the information being exposed to the public due to hacker attacks or unlawful sales. Once the information is not only owned by the government, the information may be used to threaten someone for money. This has happened in the past. For example, the video information of System in the cinema was recorded by the workers and exposed to the public [6]. The risk exists due to the storage of video information. Video Systems should not be an archive of citizens. Without time limit for deletion, the Regulations runs the risk of violating civilian’s privacy rights in Shenzhen.

Statutes

Time

Authority

Article 36 in Tort Liability Law (Law)

2010

Standing Committee of the NPC

 

Article 8 in Decision on Strengthening Network Information Protection(Decisions)

2012

Standing Committee of the NPC

 

Article 5.1 in Information Security Technology, Public and Commercial Service Information System Personal Information Protection Guide (Guide)

2013

Ministry of Industry and Information Technology

Chart I Regulations Relevant to Deletion of Information in China

Moreover, there are already some statutes relevant to the deletion of information in China.  Because Shenzhen is a special economic zone, Shenzhen will turn to the Regulations first rather than other statutes. Other statutes will only be used to check whether Regulations violates them. Chart I presents a comprehensive list. In the Law, Article 36 states that civilians have the right to request from internet service providers to delete information that violates their personal privacy rights. In the Decisions, Article 8 also states that internet service providers have the obligation of not harming civilians’ privacy rights. In the Guide, Article 5.1 defines deletion as being a part of dealing with personal information. In other words, it means that personal information should be deleted eventually.

However, the Guide is not law. It is only a normative document. Overall, these statutes suggest that the Chinese Government has realized the importance of deleting personal information as a means of preventing it from being used unlawfully. This is the principle with which the law should comply. 

The principles behind these statutes should be observed by the Shenzhen government. Shenzhen should consider addressing the issue of deadlines for deletion in the Regulations.

The lack of a mandate to delete video information is not consistent with the Tort Liability Law, published by the Central Government. Some people may doubt whether setting a deadline for deletion is practicable because different video information is kept for different purposes. Some information is for education, and some information may be for public security. Nevertheless, the awareness of deleting personal information should appear in the Regulations.

In my view, the Shenzhen Government can turn to the experience of foreign countries or regions. The Europe Union (EU) has made much progress on the deletion of personal information. In May 2018, the General Data Protection Regulation (GDPR) was published by the EU, Article 17 in the GDPR clearly states that people have the “right to erasure”, which is also called right to be forgotten. More specifically, GDPR says that people have the right to be forgotten when personal information is collected unlawfully, wrongfully or unnecessarily. Most video information that is collected by the Shenzhen Government will be useless eventually. Video information will turn out to be useless. Video information will only be useful only that it is used. Without use, video information is just a kind of data. As we know, most video information is for public security. Video information will be used as evidence when they are crimes. Police will use it to investigate the crimes. If there are no people calling police after a period (for example, 3 months), then the video information will be less likely to be used as evidence for public security. That is why it will turn out to be useless eventually.

Thus, the Shenzhen Government should determine what kind of video information is unnecessary and devise some specific and practicable measures to delete them. These measures should be included in the Regulations.

3B.  Inadequate Supervision over the Police

TheRegulations doe not address the issue of supervision of the Police. This might violate civilians’ privacy rights since the Video System is totally controlled by the Police. In Shenzhen, the Police are in charge of the Video System. Article 3[7]of the Regulations delineates the purpose of the Video  System. It states that the video System should be used for public security. Generally, two types of entities operate the Video System. One is the Government (Police), the other is social organizations, including corporations and public institutions. Article 6[8]states that the Police are responsible for supervising the implementation ofVideo System in Shenzhen and social organizations should be guided and supervised by the Police.

However, who has the power to supervise Police? Article 25[9]  identifies the governmental departments that have the power to access and use video information. It states that Police can access, copy, and use the video information when there are law enforcement needs. For example, when there are crimes, Police will access the video information to collect the characters and information of criminals. If other departments in Shenzhen Government want to use the video information, they need to get permission from the Police. Article 27[10]discusses the circumstances under which civilians can access the information. It still insists that if civilians need to use the information collected by the Video System, they need to get permission from the Police.

Although Article 33[11]states that the Police are supervised by citizens, the issue pertains to citizens’ ability to know when the information is being unlawfully used by the Police. Unless the Police actively announces it, citizens in Shenzhen have few ways of knowing what the Police do with the collected video information. Similarly, even though Article 33 states that any organization or person has right of reporting and accusing Police’s unlawful use of video information, it does not create an independent mechanism for reporting and investigating police violations. In Shenzhen (or elsewhere in China), if a person wants to sue an organization, they need to report the wrong committed to the Police first, which will be in charge of investigating and collecting evidence of unlawful behaviors. Accordingly, the scenario is such that the Police are in charge of collecting unlawful evidence of violations they committed themselves. This creates the possibility that the Police can escape from liability. Thus, the supervision over Police conduct as pertains to the use of information collected by Video Surveillance is too vague in Regulations. The way of using video information is nearly decided by the Police themselves. This really worries people because they do not know how the collected information will be used.

Perhaps the Shenzhen Government can turn to the experience of foreign countries. The UK set up the Independent Police Complaints Commission to oversee the Police. The Commission consists of supervisors and professionals. Every member of the Commission will be in charge of two or three police stations. In order to ensure that the members of the Commission perform their duties in the right way, the members should have never worked for the Police before. In a similar way, the Regulations could mandate the establishment of a special commission to supervise the Police’s use of the Video System.

The Video System is mainly used to prevent crimes, so the Police certainly have direct power over the use of information. The special commission only supervises the use of Video System by the Police. The power of police will be balanced pretty much because the commission supervises them. Besides publishing what they do with the Video System information, the Police need to report to the commission. The commission then has the power to access the details of the procedures of using the Video System. The members of the special commission should come from other departments of Shenzhen Government, People’s Court, People’s Procuratorate. Also, some members should be specialists in law to decide whether the Police have violated civilians’ privacy rights. The exclusive role of the commission is to supervise the use of video information by the Police.

 In China, the government has realized the importance of protecting people’s privacy rights. And every district in China does this. In Shenzhen, to protect citizens’ privacy rights, the issuance of Regulations should be very careful. It is important to improve the level of Regulations. As such, the inherent weakness of the law calls for amending it.

[1]See,http://www.sohu.com/a/304831536_119778

[2]See,http://www.mps.gov.cn/n2253534/n2253535/n2253537/c5594049/content.html

[3]See,宪法(Constitution) 38,39,40条(Article 38, Article 39, Article 39) https://duxiaofa.baidu.com/detail?searchType=statute&from=aladdin_28231&originquery=中华人民共和国宪法&count=143&cid=febc490f0c5df76f774ce8620f489505_law

[4]See,民法总则(Civil Code of the People’s Republic of China- General Part) https://duxiaofa.baidu.com/detail?searchType=statute&from=aladdin_28231&originquery=民法总则&count=206&cid=17999517f4dbb53719bd2f7c69068a18_law

[5]See,侵权责任法(Tort Liability Law) https://duxiaofa.baidu.com/detail?searchType=statute&from=aladdin_28231&originquery=侵权责任法&count=92&cid=9ac8800307f3d0ba8d012843e173f823_law

[6]See, http://v.ifeng.com/video_3683239.shtml

[7]http://www.sz.gov.cn/cn/hdjl/zjdc/201712/t20171207_10115125.htm

[8]http://www.sz.gov.cn/cn/hdjl/zjdc/201712/t20171207_10115125.htm

[9]http://www.sz.gov.cn/cn/hdjl/zjdc/201712/t20171207_10115125.htm

[10]http://www.sz.gov.cn/cn/hdjl/zjdc/201712/t20171207_10115125.htm

[11]http://www.sz.gov.cn/cn/hdjl/zjdc/201712/t20171207_10115125.htm


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