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By Elizabeth M. Lynch, January 3, 2023

Originally published in Commonweal

Three days before China’s twentieth Communist Party Congress in October, a man dressed in an orange jumpsuit and yellow hard hat unfurled two large banners on a highway overpass in northwest Beijing. “No Covid test, we want to eat. No lockdown, we want freedom. No lies, we want dignity. No Cultural Revolution, we want reform. No supreme leaders, we want votes. Don’t be slaves, be citizens,” one of them proclaimed.  “Remove dictator and national traitor Xi Jinping” read the other, a shocking critique of China’s president and the man behind the country’s draconian “zero-Covid” policy. The protester’s statement was all the more surprising because in China the expression of any type of dissent is enough to land a person behind bars.   

Within minutes, police surrounded Peng Lifa and tore down his signs. But Peng’s message was noticed and, in the brief moment before the censors kicked in, photos of the incident flooded China’s internet. Many shared Peng’s frustration with zero Covid, where just a few positive tests have caused entire neighborhoods to be locked down for months, forcing thousands of people—even if they are asymptomatic—to isolate in massive quarantine centers for weeks. Just a few hours later, though, posts of Peng’s action disappeared. China’s algorithms had learned to erase all references to the incident, as if it had never happened.

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By Elizabeth M. Lynch, December 28, 2015

French journalist Ursula Gauthier

In recent years, the Chinese government has taken a passive-aggressive approach with the foreign press, keeping many foreign journalists on pins and needles during the annual accreditation renewal process. But with the impending expulsion of French journalist Ursula Gauthier, the Chinese government has opted for a different approach: downright aggressive.

On December 26, 2015, the Ministry of Foreign Affairs (MOFA) confirmed that it denied Gauthier’s application to renew her press card (official English version here), effectively resulting in her expulsion from China since her journalist visa – set to expire on December 31 – cannot be renewed without a valid press card. MOFA found Gauthier “no longer suitable to continue working in China” because her November 18, 2015 article in the French newsmagazine, L’Obs, “championed acts of terrorism and the slaughter of innocent civilians . . .”

In response, Western social media is ablaze with criticism of the Chinese government, calling its accusations against Gauthier unfounded and an attempt to censor the foreign press. And while these critiques may be true, the question still remains: are MOFA’s acts legal under Chinese law. Unfortunately, with laws and regulations that are increasingly vague and broad, the answer is yes.

Gauthier’s Article: Why the Chinese Government’s Panties Are All in a Bunch

Shanghai’s skyline lit up in memory of the lives lost in Paris in the Nov. 13, 2015 attacks. (Photo courtesy of CNN)

As L’Obs‘ Beijing correspondent, Gauthier witnessed the Chinese government and people’s outpouring of sympathy for the French people as a result of the November 13, 2015 terror attacks in Paris. Chinese students left bouquets of flowers at the French Embassy; President Xi Jinping expressed his condemnation of such “barbarous actions;” and Shanghai lit up its Oriental Pearl TV Tower in the French tri-colors of blue, white and red.

But at the November 15, 2015 G20 Summit in Antalya, Turkey, the Chinese government sought to transform its feelings of sympathy into ones of action. Stating that there can be “no double standards,” MOFA spokesperson, Wang Yi, called on the global community to support China’s anti-terrorism efforts in its far-western province of Xinjiang (pronounced Sin Gee-ang).

In the past few years, hundreds of innocent Chinese citizens have been violently killed in Xinjiang in mass attacks, usually perpetrated by members of the Uighur minority, a Muslim, Turkic-speaking population that dominates the province. Some of that violence has spilled to other parts of China most notably the 2013 suicide attack at Tiananmen Square and a 2014 rampage in a Yunnan bus station.

While this violence cannot be denied, there is significant doubt as to how many of these attacks are attributable to international terrorist organizations – as the Chinese government claims – or are merely the natural result of a Muslim population increasingly frustrated at the Chinese government’s restrictive policies concerning the practice of their religion.[1] The Chinese government references the East Turkestan Islamic Movement, an international separatist movement, as the perpetrators of these domestic attacks. But some Western scholars debate the group’s existence. Although the Islamic State (ISIS) has issued a call for recruits in Mandarin, it is unclear the extent of ISIS’s impact in Xinjiang. And by essentially sealing off independent foreign reporting from Xinjiang, the Chinese government does nothing to ensure that there is greater understanding as to what is really happening in the region.

2013 car bomb at Tiananmen Square (courtesy of the Daily Mail)

With this backdrop, on November 18, Gauthier published an essay in L’Obs highlighting that the Chinese government’s call for the international community to join its fight against terrorism was misplaced (rough English translation here). In “After the Paris Attacks, China’s Solidarity is Not Without Ulterior Motives,” Gauthier rejects the Chinese government’s claim that the current wave of violence in Xinjiang is the result of global terrorism. Instead, Gauthier maintains that much of the violence is likely the result of the Chinese government’s repressive policies toward Uighurs.

For Western readers, Gauthier’s sentiment is neither shocking nor new. Arguably, it has become par for the course. After almost every terrorist attack in the West, articles appear questioning the impact of the government’s policy toward the ethnic minority. After the January 2015 Charlie Hebdo attacks, plenty of articles questioned whether the attacks were also the result of France’s harsh policies toward its Muslim population and difficulty integrating into French society (see here, here and here). After the 2004 murder of Dutch film director Theo Van Gogh, Ian Buruma wrote an entire book analyzing the impact of Dutch immigration and assimilation policies on the murderer’s mindset. Gauthier’s article, while a bit more stinging, was in a similar vein.

But in series of op-eds in the Global Times and the English language version of the China Daily, the state-controlled press criticized Gauthier for having a “double standard” and, by not focusing on the death of innocent Chinese victims in the Xinjiang attacks, devaluing the lives of Chinese people vis-a-vis the French. If the Chinese government left its criticism of Gauthier’s piece at this, it would not necessarily be out of the ordinary or irrational. It wasn’t until after the non-stop press coverage of the Paris attacks and the outpouring of sympathy on social media did it come out that a mere day earlier dozens had been killed by an ISIS-inspired attack in Lebanon. In the U.S., part of the Black Lives Matters movement is to highlight the double standard by the U.S media in covering stories that impact the white population over the black population.

But the state-run media did not leave it at that. Instead, it ratcheted up its rhetoric. On December 2, 2015, at a MOFA press conference, spokesperson, Hua Chunying, publicly criticized Gauthier. Over the next few weeks, MOFA met with Gauthier at least three times, demanding that she apologize for her essay. In addition, Gauthier’s address was leaked online even though in some of the responses to the Global Times op-ed, people were threatening her life. On December 26, MOFA denied her application to renew her press card, maintaining that she advocated terrorism and violence, an accusation no where evident in a reading of her November 18 piece.

China’s Recent Attempts to Use the Press Accreditation Process to Censor Foreign Journalists

Regardless of the validity of the Chinese government’s accusations against Gauthier, by denying her press card and thus her ability to report from China, the Chinese government has effectively silenced her. This is not the first time the Chinese government has used the press accreditation process as a form of retribution or an attempt to censor foreign journalists. But even in light of this fact, Gauthier’s case is shockingly different, with the Chinese government, after a ruthless campaign against her, publicly admitting that its decision to effectively expel Gauthier was a direct result of her reporting.

For resident journalists in China, the journalist visa (“J-1 visa”) and the press card are only good for a year, expiring every December.  Beginning in November, every resident foreign journalist begins the renewal process, first re-applying with MOFA for a new press card and then, once obtaining the press card, renewing her J-1 visa with the Public Security Bureau’s (PSB) Exit/Entry Department.  For those who change employers in the middle of the year, the process to renew the press card with the name of a new employer, begins earlier in the year when the employment change occurs.

Aside from the 2012 expulsion of Al Jazeera English’s Melissa Chan, who, unlike Gauthier, did not receive any public condemnation, all of the foreign reporters forced to leave China in the past three years have departed due to an alleged paperwork snafu.[2] These reporters were not denied their press credentials. Instead, MOFA ignored their applications due to irregular or improper paperwork. Conveniently, MOFA did not discover these paperwork issues until the eve of – or in some cases, after the expiration of the reporter’s visa.

Philip Pan, New York Times Asia Editor now based out of Hong Kong

All three of these reporters, Philip Pan, Chris Buckley and Austin Ramzy, were with the New York Times causing most in the West to speculate that these departures were not a simple paperwork issue.[3] Instead, the commonly held belief is that each departure was the Chinese government’s retaliation against the New York Times for its Pulitzer Prize-winning series that exposed the depth of former Premier Wen Jiabao’s finances and the profits his family has acquired over the years.

But it appeared that the Chinese government’s abuse of the foreign journalist accreditation process reached its peak in January 2014, with New York Times reporter Ramzy’s departure. In fact, in its 2015 survey, the Foreign Correspondents Club of China (FCCC) noted that there was a decrease in complaints from its membership regarding the visa and press card renewal process, with 93% of respondents stating that they were issued their J-1 visa within the stipulated time period.[4]

By the middle of 2015, it appeared that the Chinese government was mellowing in its attempt to censor the foreign press through the accreditation process. After Xi’s visit to the United States in September 2015, Chris Buckley, after a three year wait, was finally able to obtain a J-1 visa and return to China. Similarly, also after Xi’s visit, new New York Times China correspondent, Javier Hernandez was able to obtain his J-1 visa after waiting since at least early 2015.

Chris Buckley, New York Times reporter now based in Beijing after a three year wait in Hong Kong.

But the situation with Gauthier isn’t just a step back – it’s a whole new approach. In the past, the Chinese government was coy with its reasons to deny a press card or a J-1 visa. With Chan in 2012, it merely stated that its decision was in accordance with law. With Pan, Buckley and Ramzy, MOFA used the excuse of a paperwork error that it was unaware of for months even though it’s in the business of processing such applications. But with Gauthier, the Chinese government is not attempting to hide its reasons for denying her a press card. It has explicitly tied its decision to her November 18 essay.

Can MOFA Deny a Press Card for Reporting it Does Not Like?

While MOFA itself has not explained the basis in the law for tying press accreditation to a specific article, an interesting piece published by Beijing Youth Daily heavily hints at the source. The Beijing Youth Daily piece notes that Gauthier, like all foreign journalists, is subject to MOFA’s “Regulations of the People’s Republic of China on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists” (Foreign Media Regs) (official English translation here). Article 21 of the Foreign Media Regs gives MOFA the power, in serious circumstances, to revoke a foreign journalist’s press card when the journalist violates the Foreign Media Regs.

The Foreign Media Regs, which is more about the process of setting up a foreign media office and obtaining a press card, do not delineate which topics are off limits for foreign journalists. There is no mention about reporting on Xinjiang, Uighurs or even terrorism. But, as the Beijing Youth Daily post notes, Article 4 requires foreign journalists to “abide by the laws, regulations and rules of China, observe the professional ethics of journalism, conduct news coverage and reporting activities on an objective and impartial basis,” and “not engage in activities which are incompatible with the nature of the organizations or the capacity as journalists.”

It is this provision, which if necessary, MOFA will likely cite to for its authority to deny Gauthier her press card as a result of her November 18 article. By “championing terrorism,” MOFA has essentially stated that Gauthier has not reported “on an objective and impartial basis,” thus violating Article 4 of the Foreign Media Regs and granting MOFA the authority – through Article 21 – to deny her press card application.

Under Article 4 of the Foreign Media Regs, MOFA does not have to criminally prosecute Gauthier for a crime or even give her any form of due process (such as appealing the decision). Under the Foreign Media Regs, MOFA is the judge and jury of violations of the Regulations and with Article 4’s broad strokes, it is easy to find a foreign journalist in contempt of the Regulations. So for those foreign journalists who thought the worst was over in terms of the annual visa renewal process, think again. While Article 4 has been on the books for a while, China is now not afraid to use it. Welcome to Foreign Press Accreditation Process Version 2.0.

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[1] For example, in 2015, certain cities in Xinjiang forbade fasting during Ramadan for civil servants, teachers and students. In 2014, Shaya County in Xinjiang forbade men from wearing beards in public and called on the public to report them. In 2015, taking a cue from the French laws, the capital of Xinjiang forbade women from wearing burqas in public.

[2] While not expelled from China, in November 2013, after waiting over eight months for his journalist visa, former South China Morning Post reporter Paul Mooney was denied accreditation.  MOFA merely stated that its decision was in accordance with the law. Because Mooney was applying for accreditation from the United States for his new employer Reuters, this is not an expulsion from China. However, it was a denial and thus, does not fit into the category of “paperwork snafu.” Many in the Western press speculate that Mooney’s press card denial was the result of his hard-hitting reporting on China’s human rights violations.

[3] Pan’s departure from China is the least reported on and thus the least understood. However, if Pan had been denied a press card or J-1 visa, this fact would have been reported in the press. As a result, it is highly likely that Pan’s application was simply not processed due to some other reason such as a paperwork issue.

[4] The FCCC’s “2015 Annual Working Conditions Report” is on file with China Law & Policy.  To obtain a copy, please email fcccadmin@gmail.com.

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By Elizabeth M. Lynch, November 22, 2015

Movies in China

China’s movie market is big, real big. Five years ago, it was merely the eighth largest film market in the world. Today, it is the second and will likely surpass the United States as the world’s largest movie market within the next three years. Money-wise, China’s 2015 box office is on course to gross over 40 billion RMB ($6.25 billion). Needless to say, it is a high-stakes market and not just for the Chinese film industry.   With the U.S. and European markets saturated, Hollywood only has China to turn to for increased profits.

It is within this competitive environment that the National People’s Congress recently issued its draft Film Industry Promotion Law (“Draft Film Law”) for public comment (English translation courtesy of China Law Translate). Much in the law is designed to take advantage of China’s exploding film market and encourage the growth of the Chinese film industry: towns and villages are encouraged to build more theaters (proposed Art. 39); tax incentives and state funding are to be provided (proposed Arts. 37 & 38),and domestic film companies are encouraged to seek foreign investment and cooperation (proposed Art. 41).

But in China right now, money isn’t everything. Instead, the encroachment of “Western values” consumes the current leadership. And nothing says Western values quite like a Hollywood movie. Add that fear to the fact that in China, films have long been an important propaganda tool to promote socialist values and the hegemony of the Chinese Communist Party (“CCP”). This is the reason why Article 20 of the Draft Film Law forbids movies that “violat[e]…the basic principles of the Constitution” and “harm national honor or interest.”

So under President Xi Jinping, with his aggressive assault on Western values (see Document No. 9, Draft Foreign NGO Law, restrictions on foreign TV over the internet), what will this Draft Film Law mean for U.S. film companies?

The Foreign Film Quota – May Be Gone But So Not Forgotten

Recent U.S. film import – The Hunger Games: Mockingjay Part 2

There are two major restrictions that limit U.S. film companies from making a killing in China: (1) foreign film imports are limited to 34 a year and (2) the foreign studios are only allowed to keep 25% of the Chinese box office revenue. Is this 34-film quota a violation of China’s WTO obligations – you betcha as the WTO determined in 2009. But even in light of the WTO decision, China continued its quota system.  In 2012, the United States, with the movie industry desperate for China, entered into the U.S. – China Film Agreement which increased the number of imports and gave 80% of those imports to U.S. studios, putting to rest the WTO dispute. Currently, China permits 34 foreign films to be shown domestically, 14 of which must be 3D or Imax.

While some have stated that these quotas might be abolished when the U.S.-China Film Agreement expires in 2017, the Draft Film Law sneaks into the law a de facto quota. Article 32 of the draft states that domestic films must compass at least 2/3s of the movie theater’s total screening time. Essentially, foreign films will be limited to at most 1/3 of all screen time (although interestingly, the section of the draft law that deals with violations of the law does not address what happens if a theater dedicates more than a 1/3 of its film time to foreign films). So on some level, China’s “abolishment” of the quota system is irrelevant if Article 32 stays in the final version of the law. And there is no talk, even with the Draft Film Law, that the box office revenue limit of 25% is going out the window anytime soon.

The Cost of Censorship: The Film Industry as the Frontlines?

Coproduction with James Bond

But U.S studios have another way to obtain a greater share of the Chinese film market: participating in a “coproduction” with a Chinese partner. These coproduction are outside of the 34-film quota, with no limit and permits U.S. studios to attain 43% of the Chinese domestic box office. Coproudctions are subject to approval of the China Film Coproduction Corporation, a state-owned company that is ultimately controlled by the government State Administration of Press, Publication, Radio, Film and Television (SAPPRFT). Approvals can be obtained by filming at least one scene in China (think of the coproduction Skyfall with scenes filmed in Shanghai and Macau) or having at least one Chinese actor (co-production Transformers: Age of Extinction with Chinese actress Li Bingbing), a minimum of one-third of the movies’ total investment must be from the Chinese companies, and it must portray China in a positive light (coproduction of the 2010 version of The Karate Kid had to remove scenes where Chinese kids were the bullies) (for more info on coproductions, see this US-China Economic and Security Review Commission (USCESRC) report, p. 8).

To further take advantage of coproductions, Hollywood studios are anxiously watching the future of Dreamworks’ Oriental Dreamworks, created in 2012 as a Shanghai-based joint venture and set to release its first movie, Kugfu Panda 3, in 2016. The Draft Film Law encourages this type of relationship (draft Art. 41) because the Chinese film industry is still years behind Hollywood and needs its technical assistance. These coproductions provide that knowledge and technology. As the USCESRC report (see p. 9) notes, filming of the Avatar sequel, a coproduction, provided the Chinese side with sophisticated 3D technology as well as how to use that technology cost-effectively.

President Xi Jinping, not a fan of Hollywood values

But coproductions do not necessarily offer a win-win situation with U.S. studios avoiding the quota system and Chinese companies receiving Hollywood’s technology and know-how. In the end, these coproductions are still subject to the censorship whims of the Chinese government. True draft Article 20 delineates what content is forbidden but “harming national honor and interests” is anything but specific. While draft Article 12 implies that there will be a proper “film evaluation system” to provide some clarity to the censorship parameters, this is all being proposed while the Chinese government constantly discusses the need to contain foreign forces and influence. And there is likely little coincidence that the Draft Film Law was issued only a mere weeks after President Xi Jinping’s speech on the arts was finally released in the state-controlled media. In his speech, Xi makes clear that the Chinese film industry cannot merely be led by the market; economic benefit takes a second seat to the movie industry’s social purpose. Further, Xi highlighted that the Chinese movie sector, while it must take advantage of the foreign film industries’ technology and skill, should not be “chasing the foreign.”

This uncertain censorship environment will negatively impact U.S. film studio’s investment in costly coproductions. Unlike Chinese studios, U.S. studios take many years to produce a movie and at significantly higher cost than their Chinese counterparts would ever invest. As Rogier Creemers has pointed out, China’s post-production censorship, if it continues to be capricious, could result in U.S. investors eventually walking away from the field:

“[Because of censorship] [r]egulations and obligations can shift significantly in a very short space of time, and the possibility for media enterprises to influence this policy is relatively limited. Making a film, especially one involving significant technical effects or animation, takes a long time from start to finish, and it’s difficult to see how investors would be willing to part with their money if there’s no guarantee that their project will be permitted on the market two or three years from now.”

As a result, it may be U.S. film studios that are the first businesses to feel the  tightening yoke of the Chinese government’s censorship as well as its current obsession with containing foreign forces. No longer can U.S. businesses ignore what is happening in China’s civil society space – with the mass round up of China’s civil rights advocates and the squelching of any opinion that counter’s the Chinese government’s narrative. For this is what Hollywood does without even knowing it – undermining CCP rule. For example time travel which the Chinese censors have banned because it could be perceived as undermining CCP rule. Will it be the U.S. film studios to be the first industry to finally recognize that the Chinese government’s mindset cannot just be contained to just its crackdown on domestic dissidents but will also impact their bottom line?

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By Elizabeth M. Lynch, July 6, 2014

Artist & Activist Ai Weiwei

For sure the best part of the Brooklyn Museum’s current exhibition of Ai Weiwei‘s (pronounced Eye Way-Way) retrospective – “According to What?” – is that it was able to obtain the six dioramas Ai made of his 81-day detention by Chinese authorities. The dioramas visually demonstrates the utter absurdity of the Chinese police state. This alone mandates that this exhibit not be missed.

But the second best part? That the Brooklyn Museum did not place Ai’s works in a vacuum. Instead, Ai’s exhibit is one of four fascinating exhibits concerning art and social activism. Any visit to Ai’s exhibit should be accompanied by a viewing of at least one of these other shows. If you get there before July 13, definitely check out “Witness: Art and Civil Rights in the Sixties” as a contrasting exhibit to Ai’s and as a powerful reminder of America’s own checkered past and unclear future concerning civil and human rights.

“According to What?” is not just a retrospective of Ai’s art but also an explanation of

Ai Photo of Police & Protestors at Washington Square Park, 1988

his activism. One of the most revealing parts of the exhibition is Ai’s photographs from 1980s New York City, covering the decade when Ai lived in the city. Through Ai’s photographs, we see what he saw: constant protests in various city parks, face-to-face confrontation with the police, the beginnings of the AIDs crisis and its activism, the grit of 1980s New York City. When later on in the exhibit you watch a video of Ai challenging the Chinese police and demanding accountability, you can’t help but think back to the photos of bloody protesters in Tompkins Square Park and wonder if this is what influences Ai to be the agitator that he has become.

But Ai wasn’t always such an agitator. Unfortunately the exhibition gives only short shrift to his prior – and government-accepted – work. In overlooking this aspect of Ai’s career, the exhibit also fails to fully explain the spark that radicalized his art – the Sichuan earthquake. After an 8.0 magnitude earthquake rocked Sichuan province, Ai traveled to the region and saw the hundreds of shoddily-built schoolhouses that completely fell, killing the children in them. All the while surrounding government buildings remained standing. Seeing the thousands of children’s backpacks lying in the rubble and the fact that the government-controlled press was not acknowledging the “tofu-dreg construction,” Ai took matters into his own hands, undertaking a “Citizen’s Investigation” and uncovering the names of the 5,196 children killed.

The gallery with Ai’s Sichuan earthqake remembrance art, including “Straight”

In “Sichuan Name List,” Ai lists the name, age, school and address of every single child killed.   It is the layout of this work – the 5,196 names line an entire wall of the gallery, from top of the ten foot wall to bottom – that forms the art work. Only in seeing this can one even begin to attempt to understand the enormity of the loss. The work is accompanied by “Remembrance” a three-and-a-half audio recording of strangers from around the world speaking the name of every single child that perished. Lying in the center of the gallery are the steel rebar from the shoddy construction – all of which have been straightened back to their original form.

Ai’s homage to the victims of the Sichuan earthquake is powerful. It is also the reason why Ai is so dangerous to the Chinese Communist Party (“CCP”).   To maintain its power, the CCP needs to retain its monopoly on Chinese history. Since the founding of the People’s Republic, it is the CCP that writes the country’s history; not its people. Tiananmen? Never happened. Mao Zedong? Only 10% wrong. The Cultural Revolution? Not a descent into madness, just a little blip on the radar screen. Here, Ai – who is an influential figure since his father, Ai Qing, was a well-known and respected poet – is attempting to write the people’s history. It’s that attempt that the CCP sees as an assault on its rule.

Never Lonely! Friendly little guards are there and everywhere!

But if you think that is overreacting, then check out the six half-life size dioramas that Ai made of his 81 day detention. In 2011, Ai was detained by the public security bureau allegedly on tax fraud charges although the general consensus is that it was the government’s failed attempt to silence his activism. Ai designed each five-foot tall diorama with a window where the viewer can look in and see Ai in his room. In the first room, things don’t look so bad. It looks more like a hotel room than a jail cell. But as you progress and look into each scene, you begin to realize the absurdity of what is going on here. Two guards are with Ai at every moment, watching him. As he eats, as he sleeps, even when he showers. The guards are there, standing over him, watching his every move. Is this jolly, chubby man really that dangerous?

With so much of Ai’s art involving his interaction with the authorities, “According to What?” raises the question – has social activism become Ai’s art? And is this good for either: should activism merely be theater; should art be so much protest? By situating “According to What?” with other activist art, the Brooklyn Museum has largely answered those questions – art does not exist in a vacuum nor should we want it to.

Philip Guston’s City Limits (1969), part of BK Museum’s Witness Exhibit

For Americans, viewing “Witness: Art and Civil Rights in the Sixties” will demonstrate that art and activism go hand-and-hand and that we can and should respect the artist for both. It will also serve as an emotional reminder of our own dirty little past. But in the end, it will make you wonder – while these tactics worked in 1960s America, a largely democratic society, will they also work in Ai’s authoritarian China? One hopes that Ai’s art is not in vain, but, as China’s new regime even more violently cracks down on any purported challenge to its rule, only the future can tell.

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“Witness: Art and Civil Rights in the Sixties” is only on view at the Brooklyn Museum until July 13, 2014. “According to What?” is on view until August 10, 2014. This will be the exhibit’s final stop on its international tour. While entrance to the Brooklyn Museum is a suggested donation of $12, “According to What?” is a required $15 ticket (which includes price of general admission). Note that the dioramas of Ai’s detention are on the first floor before purchasing tickets and thus can be viewed for free.

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By Elizabeth M. Lynch, April 13, 2014

In June 2012, Bloomberg News’ China coverage was considered cutting edge.  It’s China team had published  an investigative piece that unmasked the enormous wealth accumulated and hidden by current Chinese President Xi Jinping and his family.  For its courageous China coverage, Bloomberg won a prestigious George Polk Award here in the U.S.  But back in China, the accolades were less than forthcoming.  Instead, Bloomberg received the Chinese government’s retribution with its website blocked, its journalists experiencing increasing difficulty renewing their visas, and its computer systems penetrated by Chinese hackers.  Evidently it’s coverage hit a nerve.

Fast forward a little over a year and last November, allegations of self-censorship regarding its China coverage engulfed Bloomberg News.   According to unnamed Bloomberg reporters, editor-in-chief Matthew Winkler killed what would have been another investigative piece exposing the deep and corrupting ties between one of China’s wealthiest men and the top leadership of the

Matthew Winkler, Head of Bloomberg News

Chinese Communist Party.  Allegedly Winkler  feared that if the story was published, Bloomberg journalists would be kicked out of China and its China offices effectively closed.   Winkler denied the allegations, informing the New York Times that the piece had in fact not been pulled. Even with these denials, Bloomberg quickly suspended the lead reporter on the story and the executive editor of  Bloomberg’s investigative news division who also was an on its June 2012 China story, Amanda Bennett, left the company shortly thereafter   Coincidence or sign that journalism takes a back seat to business?  Recent events point toward the later.

Should We Be Surprised That Bloomberg’s Priority is Its Bottom Line?  

By early 2014, it appeared that things had died down for Bloomberg’s beleaguered China team.  But in March,  the accusations of self-censorship re-emerged.  First was Peter T. Grauer’s, chairman of Bloomberg News’ parent company Bloomberg LP, admission that some China stories it “should have rethought” when discussing Bloomberg LP’s China business.  Then, only days later, longtime Bloomberg employee and editor-at-large for Asia news, Ben Richardson, vocally departed from Bloomberg and explained to media critic Jim Romenesko that “[he] left Bloomberg because of the way the [November 2013] story was mishandled, and because of how the company made misleading statements in the global press and senior executives disparaged the team that worked so hard to execute an incredibly demanding story.”

Working at a Bloomberg Terminal

But while self-censorship – if that is what is going on Bloomberg – is always disappointing, in Bloomberg’s case, it shouldn’t come as a surprise.  Bloomberg News is only a negligible part of Bloomberg LP, at least revenue-wise.  Instead it is the Bloomberg Terminal, a computer that delivers real-time stock quotes, provides an electronic trading platform, and a widespread instant messaging service, that is king.  Bloomberg Terminals are ubiquitous at investment banks and hedge funds; those organizations would not be able to function without them.

At $20,000 a terminal a year, it is the sale of these terminals that account for the vast majority – around 80% – of Bloomberg’s revenues.  According to Dean Starkman, an editor at Columbia Journalism Review and author of The Watchdog That Didn’t Bark: The Financial Crisis and the Disappearance of Investigative Journalism, Bloomberg News was always meant to play a supporting role.  When Winkler founded the news division in the early 1990s, “Bloomberg was explicit about creating a new model, integrating business and editorial, where the two would work together” Starkman told China Law & Policy in a phone interview. In fact, according to Starkman, it was only in the last five to ten years, with the financial crisis, that Bloomberg News started to get more serious about journalism and rose in prominence.  It was in that period that Bloomberg News won various awards for its coverage in many parts of the world.

But when a company gets 80% of its revenue from a single product it is important that its other lines of business do not hurt that

Trader in Shanghai, not working on a Bloomberg Terminal

product.  Here, Bloomberg’s China coverage most likely violated that business tenet.  After the June 2012 publication, sales of the Bloomberg Terminals in China came to a halt.  But China, unlike the United States which accounts for 37% of Terminal sales and Europe which accounts for 35% of sales, is far from a saturated market.  In fact, China only accounts for a mere 3,000 Bloomberg Terminals (the tiny island of Hong Kong accounts for more than 20,000 Terminals).

To be shut out of China would jeopardize Bloomberg’s ability to increase its revenue, all at the time when its main competitor, Thomson Reuters, is gaining market share.   In 2010, Thomson Reuters sought to take advantage of the financial crisis by creating the Eikon, a cheaper competitor to the Bloomberg Terminal.  Although Eikon had a shaky start, its growth more recently has been phenomenal (but many in the industry still view it as inferior).  In 2013 it tripled the number of Eikon subscriptions to 122,000.  A scary prospect for Bloomberg.

Given that Bloomberg’s cash cow – sales of its Terminal – took a major hit after the publication of the article on Xi Jinping’s family wealth and that its battle with Eikon will be on mainland, it is not surprising that Bloomberg potentially killed another news article that would have hurt its bottom line.

Should We Be Concerned That Bloomberg is a Harbinger?

It’s no secret that the titans of the media world have taken huge hits with the influx of the internet.  The Graham family’s recent sale of the Washington Post to Amazon founder Jeff Bezos is one such example.  For the business side of journalism, it’s not just about the bottom line, it is about survival.  With this mindset, will every media outlet that covers China soften its coverage?

Dean Starkman, editor at the Columbia Journalism Review

“No” Starkman emphatically told China Law & Policy.  “[Bloomberg] is different from other media companies.  Other than Reuters, no other media company has as much to lose in China.”  Even when raising the issue of the New York Times and its Chinese language website which is blocked in China, Starkman was still optimistic.  “The New York Times doesn’t have to be there as a business; it’s just there as a newspaper.  There is no critical need for them to grow in China.”  Bloomberg on the other hand, very much has a need to grow its Terminal business in China.

For Starkman, the decline in ad revenue is precisely the reason why media organizations will be forced to provide hard-hitting coverage of places like China:  “The fact that news organizations rely more on subscribers [for revenue] makes it all the more imperative that. . . their news coverage remains uncompromising.”   By relying on subscribers, the game comes down to credibility – if you publish less than the truth, you will no longer be credible.  For the traditional media outlets like the New York Times and the Wall Street Journal credibility is paramount.  But as Starkman pointed out, if readers doubt Bloomberg News’ articles, it ultimately does not affect their business because they still have Terminals to sell.

For Starkman, it is this need for credibility that could potentially drive newspapers to do more investigative articles, not less.  “Investigative pieces cover something everyone knows about but it hasn’t been documented” Starkman told China Law & Policy.  Corruption in China was one example that he provided; it’s well-known fact but few have been able to document the evidence as powerfully as the New York Times and Bloomberg News.  “As the gap between what everyone knows and what you cover becomes wider, you lose your credibility.”

And it is true.  When it comes to China coverage, the go-to newspaper is increasingly the New York Times.  Why?  Because it is able to provide the in-depth, uncompromised coverage about what is really happening in China.  Part of this of course is resources.  As Bloomberg’s former editor-at-large, Ben Richardson told CNN, these type of investigative pieces are extremely expensive and difficult to produce.  Large media outlets like the New York Times and Bloomberg have these resources.

Another entity that has the money and expertise to publish investigative pieces on China’s corruption would seem to be the Wall Street Journal.  But they have yet to publish anything on China as in-depth as what the New York Times and Bloomberg covered.  Starkman did not blame this on self-censorship but rather a changed model of news reporting where shorter pieces predominate.  As the Columbia Journalism Review has documented, since Rupert Murdoch took control of the Wall Street Journal  in 2007, longer pieces have precipitously plunged.  “What’s the good of covering small incremental things if miss the one big thing”  Starkman mused.

Bloomberg’s apparent self-censorship is disheartening especially for the reporters who likely worked really hard on the piece that appears to have been killed (six months later it still has yet to be published).  But the Bloomberg Incident itself doesn’t signal the death knell for investigative journalism in China.  To maintain its monopoly on China credibility, the New York Times will likely continue its hard-hitting pieces for as long as China allows it to have journalists there.  It is that credibility that impacts the Times‘ bottom line.  Until of course Bloomberg purchases it.

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By Elizabeth M. Lynch, February 10, 2014

CL&P issues a correction

Yesterday, China Law & Policy published a post regarding New York Times reporter Austin Ramzy and the circumstances surrounding his effective expulsion from China this past January.  After the post went up, some readers emailed me to comment that my analysis may be wrong, in particular my examination of Article 14 of the Regulation on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists (“Foreign Media Regs”).

Here’s the background.  On January 27, 2014, Ministry of Foreign Affairs (“MOFA”) spokesperson Qin Gang addressed the Ramzy situation stating that by not changing the status of his visa (presumably to a tourist or some other non-journalist visa) when he re-applied for a new press card with MOFA, Ramzy was in violation of the regulations.

As I wrote yesterday, Qin Gang’s assessment is correct under Article 14 of the Foreign Media Regs) if Ramzy’s prior press card with Time Magazine was “canceled.”  Article 14 reads:

The cancellation of the Certificate for Permanent Office of Foreign Media Organization in China and the Press Card (R) shall be made public.

The Journalist Visa of a resident foreign journalist whose Press Card (R) is cancelled automatically becomes invalid ten days after the date of cancellation.

A resident foreign journalist whose Press Card (R) is cancelled shall, within ten days from the date of cancellation, present the relevant certifying documents to the public security authority of his place of residence to apply for the alteration of his visa or resident permit.

I concluded that Ramzy, who was permitted to apply for a New York Times press card in June 2013, did not have a canceled press card,

When obtaining press cards were a bit easier: Edgar Snow’s press card for Beijing

making Article 14 inapplicable.  But a few emails came in, including from individuals with experience with press cards in China, that based on their experiences, it was more likely that Ramzy’s Time Magazine press card was canceled in order to apply for the New York Times press card, making Article 14 applicable.  Fox News also highlighted this reading of the Foreign Media Regs.

I stand corrected and I thank the readers who wrote to me.  Under Article 14 of the Foreign Media Regs, it does appear that when a foreign journalist in China switches employers and tenders her prior press card, that card is effectively canceled and to be in line with the Foreign Media Regs, the journalist presumably has to apply for a change in visa status.

But the reason why I still continue to hedge and question if Ramzy was in fact in violation of the law, as opposed to just these regulations, is because when read in conjunction with China’s Exit-Entry Administration Law (“Exit-Entry Law”), Ramzy’s situation is a little less clear.  The Foreign Media Regs do not address what happens when the prior press card is canceled but the journalist is waiting on a new press card to be issued.  But the Exit-Entry Law permits an individual to stay until the expiration of a residency permit even when an application for a new one was denied (see Exit-Entry Law, Arts.29 & 32).  Additionally, the Regulations on Exit-Entry Aministration for Foreign Nationals (“Exit-Entry Regs”), which further define the Exit-Entry Law, acknowledge that there will be times when the visa and residence permit process is delayed.  In those situations, the foreign national can rely on the “acceptance notice” from the Public Security Bureau (“PSB”) to lawfully reside in China until her visa or residency permit is processed (Exit-Entry Regs, Arts. 13 & 18).

Qin Gang, stepping up the game!

The Exit-Entry Regs do not apply to MOFA in its review of press cards, but did it take a page from the Exit-Entry Reg’s play book?  Did MOFA reassure Ramzy and the New York Times that with MOFA’s acceptance of the application, Ramzy could continue to reside in China on his Time Magazine visa and resident permit until the new press card was processed?  Article 21 of the Foreign Media Regs leaves it within the discretion of MOFA to determine the penalty, if any, for a violation of the Foreign Media Regs.  Unfortunately, emails to the executive and managing editors of the New York Times for clarification were not answered.

But at any rate, what the Ramzy incident reflects is that journalism just got a heck of a lot harder in China, especially for any news agency that seeks to cover sensitive issues.  Back at the beginning of January, Jill Abramson, the New York Times‘ executive editor, seemed to think things had blown over in China, that the earlier problems in securing journalist visas for their reporters had mostly been resolved.  But Abramson spoke too soon because with the Ramzy incident, the Chinese government just stepped up its game.

This is not the first time that the Chinese government has cited to law to provide a veneer of legality in its efforts to suppress criticism (or

Rights Attorney, Xu Zhiyong, recently sentenced to 4 years

more aptly suppress criticism that is not directed by the Party).  Chinese public interest lawyers and activists have been treated in a similar fashion.  Liu Xiaobo is likely the last activist the West will see tried for “subversion of state power” and since the lawless abduction of civil rights attorney  Gao Zhisheng, the recent prosecutions have been “in accordance with law.”  The Chinese government has become increasingly sophisticated in how it handles what it perceives as threats to its one-party rule.   In January, rights lawyer Xu Zhiyong was tried and found guilty for disturbing public order.  Back in 2010, civil rights lawyers Tang Jitian and Liu Wei were disbarred on highly technical regulations that govern the legal profession.  By turning to more administrative and technical punishments, the Chinese government can state that it is merely following the law, a defense it has come to realize the West finds a bit harder to counter.

Similarly, the Chinese government now appears to be using the same strategy with foreign journalists and the visa application process.  It’s a labyrinth of regulations, making it easy for the Chinese government to point to a violation.  With the Ramzy incident, foreign media outlets in China can no longer rely on the assurances of MOFA or even how things were done in the past.

Ramzy might have been the sole casualty of the New York Times-China feud for the 2013 cycle.  But his forced departure is a game-changer and should be a warning to the U.S. government and U.S. media outlets that they too need to step up their game; things are far from “blown over.”

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By Elizabeth M. Lynch, February 9, 2014

New York Times journalist Austin Ramzy

Last month, while another U.S. journalist was packing his bags, forced to leave China, the U.S. Senate was poised to hold the confirmation hearing for Max Baucus, the Administration’s nominee to replace Gary Locke as ambassador to China.  You would think that central to the Baucus hearing would be the issue of journalist visas, or at least it would be mentioned by the candidate himself as a troubling development.  But you would be wrong.   Instead, after a December where the issue of U.S. journalists in China reached crisis level, Congress reverted to its shortsighted old ways, barely even raising the issue.

But, as the recent expulsion of the U.S. journalist clearly demonstrates, such a lackadaisical approach is increasingly dangerous as the Chinese government attempts to develop a more sophisticated response to try to maintain control of foreign journalists and U.S. media outlets through the visa process.

New York Times Reporter Austin Ramzy Effectively Expelled from China

For ten years, Austin Ramzy diligently covered Asia and China for Time Magazine, first out of Hong Kong and then since 2007, out of Beijing.  While his pieces were thought-provoking for a Western audience, they were hardly the type that would illicit anger from the Chinese government.  There were no articles exposing government officials’ vast wealth and while Ramzy did report on certain human rights issues in China, those articles were interspersed among other more general pieces.  In other words, he was likely not on the Chinese government’s target list in terms of renewing a visa.

But Ramzy’s status changed when, in April 2013, he took a job with the New York Times.  Since October 2012, when it published a Pulitzer-Prize

Former Premier Wen Jiabao

winning series on former premier Wen Jiabao’s questionable role in his family’s lucrative business holdings, the New York Times has become the Chinese government’s Enemy Number One.  Its website, including the Chinese-language portion, has been blocked in China, its U.S. website allegedly hacked from China, and every December, when it comes time to renew their visas, the New York Times China correspondents have faced excessive delays and effective expulsion.  The New York Times Fall 2013 coverage of the U.S. investigation into J.P. Morgan’s cushy ties with the children of China’s government elite, including the daughter of Wen, likely did not help its situation.

Ramzy’s visa troubles began almost as soon as he started working for the Times.  Although Ramzy had a journalist visa good through the end of December 2013, because he switched employer, under Chinese law, Ramzy was required to first apply for a new press card with the Chinese Ministry of Foreign Affairs (“MOFA”).  Once issued, Ramzy then, with his new press card, would be required to apply for a new journalist visa and residency permit with the Public Security Bureau (“PSB”) to reflect his new employer (see Regulations on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists -“Foreign Media Regs” – Art. 10).

But, according to a source familiar with the matter, MOFA began giving Ramzy a hard time from the beginning.  For two months, the Beijing MOFA office refused to accept his press card application, informing him first that he would have to apply through Hong Kong, and then informing him that it would have to be through the New York consulate.  However, Article 10 of the Foreign Media Regs clearly states that the application can be made within China and directly to MOFA.

As the source told China Law & Policy, it was not until June 2013, two months later, that MOFA finally accepted his press card application.  But MOFA would sit on Ramzy’s application, and come December 2013, Ramzy was part of the New York Times contingent that was almost effectively expelled en mass when MOFA failed to process any Times correspondents’ press card applications and renewals.

Photo from Ramzy’s Twitter feed showing that he had mostly packed his things

While the pressure from the Obama Administration, in particular Biden’s December visit to Beijing where he publicly raised the issue, appeared to have averted the de facto closure of the Times‘ China bureaus, Ramzy seems to be the lone casualty.  Ramzy’s vulnerability likely came from the fact that he was the only New York Times correspondent who was hired in the middle of the year.  For some reason, MOFA processes “new” applications for a press card with a news agency differently than a mere renewal of the press card for a reporter that continues to work for the same news agency.  This is what happened to New York Times correspondent Chris Buckley the year before.  Like Ramzy, Buckley took a job with the Times in October 2012 but MOFA failed to process his press card.  When his prior journalist visa and residency permit expired on December 31, 2012, Buckley was forced to leave China.  For the past year he has been reporting for the Times from Hong Kong while MOFA allegedly is still processing his press card application.

Similarly, by the end of this December, without a press card, Ramzy was unable to apply for a new journalist visa.  His prior visa and residency permit was set to expire on December 31, 2013.  At the end of December, MOFA provided Ramzy with a one-month “humanitarian” visa so that after seven years, he could pack up his life and leave.  On January 30, 2014, Ramzy left Beijing and relocated to Taipei, Taiwan to cover China from there.

Stronger Response from Both the US & China

With his departure, the White House issued a strong statement, condemning China on Ramzy’s effective expulsion.  This was a marked departure from the White House’s prior strategy of silence when other U.S. reporters were effectively expelled or banned from reporting from China (Melissa Chan in 2012, Philip Pan in 2012, Andrew Higgins from 2009 to 2012 and Paul Mooney in 2013).

But the U.S. was not the only country with a changed strategy.  For all of these prior expulsions and bans, the Chinese government has never

MOFA spokesperson Qin Gang

provided a specific reason for its delay or denial.  But in Ramzy’s case, the Monday before his departure, MOFA spokesperson Qin Gang addressed the issue and tried to put a fig leaf of legality over the situation.  While Qin implied that MOFA was still processing Ramzy’s press card application, he accused Ramzy of violating Chinese regulations because he continued to enter and leave China on his old visa connected to his prior employer and never applied for a new visa or residence permit.

Qin was correct that Ramzy did not apply for a new visa and residence permit once he took the job with the Times, but that was not a willful act.  For a journalist visa and residency permit, part of the application is submission of a valid press card (Foreign Media Regs, Art. 10).  Here Ramzy was not able to apply for a new visa where MOFA was sitting on his application for a new press card, failing to process it.

Regardless of that fact, the law does not require Ramzy to apply for a different type of visa (presumably a non-journalist one) while waiting on a new press card.  The only time that a journalist must apply for a different type of visa to remain in China is if his press card has been “canceled,” a decision that must be made public (Foreign Media Regs., Art. 14).  Here, Ramzy’s prior press card was not cancelled; rather he was applying for a replacement.*  Nowhere in the Foreign Media Regs is there a requirement that a journalist change his visa type while waiting on a replacement press card.

Finally, China’s Exit-Entry Administration Law permits a foreign resident to stay in China to expiration of a prior residence permit even when a new one is denied: “[I]f an extension is denied, the foreigner concerned shall leave China on the expiry of the validity period specified in their residence permits” (Exit-Entry Administration Law, Art. 32).

Ramzy was within the law in entering and exiting China on his prior visa while waiting on his press card.  But MOFA’s citation to the law, even if inaccurate, is an interesting development and not restricted to foreign journalist visas.  Rather, it has been a trend in dealing with criticism from abroad.  An examination of how the Chinese government has dealt with public interest lawyers shows a government increasingly using the law – even if only a fig leaf – to explain its suppression of dissent.  The Chinese government has come to realize that the rhetoric of law is often an effective defense and silencing device in dealing with the West.

The Danger of the Senate’s Silence

It is this more sophisticated response that should put the U.S. government on warning that Beijing does not intend to back down in toying with

The Baucus Senate Confirmation Hearing – Why Bother?

foreign journalists visas.  That is why the absence of this issue during the Baucus hearing was a dangerous disappointment.  During the hour and a half session, not a single Senator specifically asked what Baucus intended to do about this issue.  Instead, the hearing descended into the verbal embodiment of a high school social studies essay on the “interconnectedness” of the world, how they are like us, and with Baucus addressing human rights only superficially, stating that its protection “is the bedrock of American society.”

By not focusing on the issue of journalists visas during the hearing, Congress has effectively signaled to Beijing that it can go back to the status quo; the Senate is too concerned with how to sell beef in China to pay attention  to one journalist unable to stay there.  This is certainly a missed opportunity because if there is one thing the Chinese government does not understand and fears as a result, it is Congress.  Even if five minutes of the hearing addressed the issue, that might have given the Chinese government food for thought.

And it would also have been useful for Americans to know what Baucus’ strategy will be.  As Ambassador, Baucus will have a lot of power to determine if there should be a policy of visa reciprocity.  Does he think that is an appropriate approach?  Does he think there are other ways to deal with this issue?  How public will he be when the Chinese government again trifles with a U.S. journalist’s visa?

The U.S. government – both Congress and the Administration – cannot allow this issue to slip into the background.  While the White House should be commended for issuing a statement on Ramzy’s expulsion, it needs to use every opportunity to remind the Chinese government that this is a key issue.  Just stating it is not enough.  Last week, when Daniel Russell, Assistant Secretary of the Bureau of East Asia and Pacific Affairs at the State Department held a press conference, two reporters in the audience were from Chinese government-run media outlets.  Perhaps starting the press conference with a comment about how the U.S. allows a free foreign vis-a-vis China might demonstrate just how important the issue is to the current Administration.

Goodbye New York Times?

Consistent pressure on the Chinese government from all parts of government must continue until Pan, Buckley, and Ramzy’s visa applications are processed.  Back in December, when it looked like the New York Times and the Bloomberg China bureaus would effectively close, the U.S. government was able focus its resources and pressure China to renew the correspondents’ visas.  But here, the danger is no different.  Where the New York Times is unable to get a new press card for any new employees in China, it will be unable to replace its current correspondents.  How long can David Barboza, 10 years in China and Ed Wong, six years, stay there?  It might be a slow death for the Times‘ China offices, but, unless something changes, its end inevitable

 ——————————————————————————————–

* After publication of this post on February 9, 2014, it was brought to my attention that Ramzy’s prior press card with Time Magazine could have been “cancelled” under Chinese law and that Article 14 might apply to him.  A correction in the form of a new post can be found here.  Apologies in advance.  — EML

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By Elizabeth M. Lynch, December 10, 2013

In response to the precarious situation of U.S. journalists in China where approximately 24 New York Times and Bloomberg reporters may not have their visas renewed, the Congressional-Executive Commission on China will host a roundtable discussion on the issue, tomorrow, December 11 at 3:30 PM.  The event will be held in Washington, D.C. at the Capitol Visitors Center, Room SVC 203-202 .

Panelists will include Paul Mooney, who was outright denied a journalist visa to work as Reuter’s Beijing correspondent, Edward Wong, current New York Times China correspondent, Bob Dietz, Asia Program Coordinator at the Committee to Protect Journalists and Sarah Cook, Senior Research Analyst for East Asia at Freedom House.

Because of the demand for this roundtable, an RSVP is required.  Please RSVP, no later than 10 AM on December 11 to Judy Wright at judy.wright@mail.house.gov

The roundtable will also be broadcast live on the web at: http://www.cecc.gov/events/roundtables/chinas-treatment-of-foreign-journalists

Since Vice President Biden’s visit to Beijing where he met with U.S. journalists and publicly raised the issue of press censorship, there have not been any reports of any New York Times or Bloomberg correspondents receiving their visas.  To the contrary, in a series of Twitter posts, New York Times China correspondent  Ian Johnson stated that the first reporters will be forced to leave on December 17, presumably the expiration date of their current visa, with all to leave by December 31.

Yesterday, the Foreign Correspondents Club of China (FCCC) released its 2013 Year-End statement, noting yet another year of negative trends.  The FCCC found “…that the Chinese authorities are increasingly using the denial of visas, or delays in their approval, in an apparent effort to influence  journalists‘ coverage. No correspondents for the New York Times and Bloomberg have yet been able to renew their annual residence visas, which have been subject to unusual and unexplained delays this year.”

The FCCC also noted that potential censorship goes beyond China’s borders, giving credence to author Peter Manseau’s belief that in 2010 the Chinese embassy contacted senior editors at the Washington Post to kill his story on Falun Gong in DC.  Although Manseau’s incident was in 2010, the FCCC reported that in 2013, “…[o]n at least two occasions this year Chinese embassy staff in foreign capitals have approached the headquarters of foreign media and complained about their China-based correspondents’ coverage, demanding that their reports be removed from their websites and suggesting that they produce more positive China coverage.”  One wonders how many other occasions there have been.

If you are in DC tomorrow, this should be an interesting and important event.  Again, RSVP is necessary by 10 AM tomorrow to judy.wright@mail.house.gov.

For those interested in learning more about foreign journalists’ visa troubles, please see China Law & Policy‘s three-part series with Part 1 here, Part 2 here, and Part 3 here.

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By Elizabeth M. Lynch, December 3, 2013

Part 1 of a three part series on American journalists’ difficulty in obtaining visas to China

In less than two years, China has effectively banned four journalists – either American citizens or those working for American media companies – from entering and reporting on the country.  Their crime?  None that the Chinese government cares to explain.  But most outside of China believe that it was these reporters’ – or their colleagues’ – critical coverage of China that proved to be their sin.

As China rises, its government has come to realize that it has a bit of a problem: its image.  While the Chinese government can effectively censor its domestic media from reporting on human rights violations, political unrest, corruption, or anything it deems sensitive, its control of the foreign media has long proven less successful.  Until more recently.  For the past few years, Beijing has increasingly used the journalist visa process to try to influence foreign reportage and to signal to foreign media outlets that they better tone down critical coverage.  Unfortunately, it appears that some U.S. news organizations are getting the message and towing the line.

To date, the U.S. government has remained silent about China’s assault on foreign journalists, even as U.S. citizens and news outlets are increasingly targeted.   Last month, when China denied Reuters‘ visa request for veteran China journalist Paul Mooney, the Administration again failed to issue any public statement.

The U.S. government’s silence is not without its costs.  As the world’s second largest economy and an increasingly bellicose nation, accurate reporting on the country is imperative to the United States.  If Beijing is permitted to continue to trifle with foreign journalists’ visas, frank reporting on China will become a relic of the past.  But it is the U.S. government that can prevent this outcome if it chooses to act and not wait for the situation to get worse.  Which it will if the past year is any guide.

Paul Mooney’s Experience Epitomizes Foreign Journalists’ Visa Anguish

Soft-spoken  and unassuming, Paul Mooney is not what you would expect from a former soldier who saw some of the worst fighting of the

Paul Mooney, now in San Francisco

Vietnam War.  But those familiar with his hard-hitting news reports on China, have little difficulty understanding why he’s been called the bane of Beijing.

Mooney, a freelance journalist in China for the past 18 years, moved back to the United States when his contract with Hong Kong’s South China Morning Post expired.  With his in-depth knowledge of China, understanding of its people and politics, and fluency in Mandarin, Reuters quickly picked up Mooney as one of their China correspondents.  Mooney is the type of reporter you want on the ground in China if you want accurate and interesting reporting.  Reuters submitted Mooney’s journalist visa application in March 2013.

In a phone interview with China Law & Policy, Mooney said he figured the Chinese government would make him jump through some hoops to get the visa since some of his articles in the past few years covered more sensitive topics.  In fact, during his last two visa renewal cycles in Beijing – in 2010 and 2011 – the Public Security Bureau (“PSB” – the organization that renews the actual visa) had him meet with officers in an interrogation room in the back of the visa application hall.  In 2010 – in what Mooney interpreted as a power play – the PSB demanded that his wife attend the visa renewal interview with him.

If the 2010 and 2011 renewal processes were difficult, applying for a new journalist visa from abroad just added to Mooney’s struggle.  In April 2013, Mooney was summoned to the Chinese consulate in San Francisco for an interview.  But again what should have been a routine affair proved to be a 90 minute interrogation.  Familiar with his articles and prior visa interviews, the consular officer grilled Mooney on some of his more critical articles such as the suppression of Chinese rights activists and the Chinese government’s treatment of blind dissident Chen Guangcheng.  According to Mooney, the official ended the interview telling him that if China let him back in he hoped that his reporting would prove more “objective.”  “It is outrageous and unacceptable that they can call you in and tell you how to report” Mooney told China Law & Policy.  “Imagine a U.S. official calling in a German reporter and telling him what to write about?”

According to Mooney, another Reuters China correspondent who applied for a new visa around the same time Mooney did and whose focus was solely economic, received her journalist visa approval in May.  But for Mooney, the wait continued for another seven months. Then on November 8, 2013, Reuters informed Mooney that China had denied his visa application.  According to Mooney, the Ministry of Foreign Affairs (“MOFA”) did not explain its decision providing only a cryptic written statement to other journalists covering his visa denial that its determination was made in accordance with Chinese law and regulations.  “If they want to reject you, they should give a reason” Mooney said.  “This is not the behavior of a country that wants to be a superpower or a respected power.  It’s childish.”

Mooney believes the Chinese government’s real reason to deny him a visa was to censor his China reporting and potentially chill other foreign correspondents’ China coverage.  Calls to the Chinese Embassy in Washington went unanswered.

Harassment of Resident Foreign Journalists in the Visa Renewal Process

What Mooney labels “childish” behavior – the use of the visa process to ostensibly chill the foreign press – appears to have become a strategy that the Chinese government is more quick to employ.  Which it can do on an annual basis.  For resident journalists in China, the journalist visa (“J-1 visa”) is only good for a year, expiring every December.  Beginning in November, every resident foreign journalist begins the renewal process, first re-applying with MOFA for a press card and then, once obtaining the press card, renewing her J-1 visa with the PSB.  But what should be a routine event has turned into an anxiety-ridden affair.

In the past three years, the Foreign Correspondents Club of China (“FCCC”) has documented an increasing number of incidents where the Chinese government threatens not to renew a visa or unnecessarily delays the visa renewal process.

In its November 2012 survey,[1] the FCCC found that since the end of 2011, at least 29 resident foreign correspondents were threatened with a visa non-renewal.  The respondents’ quotes (119 FCCC members responded to the survey) show that some of these threats were linked to specific reporting or journalists’ “attitude.”

Currently, all of China’s resident foreign correspondents are undergoing the visa renewal process.  In a phone interview with China Law & Policy, Peter Ford, president of the FCCC, said that it was just too early to draw any conclusions from the 2013 process as it is ongoing but he did note that “reporters for media which have displeased the authorities appear to be facing unexpected delays.”

Who displeases the authorities is anyone’s guess although some topics are touchier than others on the Chinese government’s revolving list of sensitive subjects.  But as Ford told China Law & Policy, “it would seem that the red line the government has drawn in the last 18 months concerns finances of senior government officials.”  In line with that assessment is the fact that for the two foreign media outlets that covered that issue – Bloomberg and the New York Times – both have had their websites blocked in China since publishing their reports.  In January 2013, the New York Times reported that Chinese hackers – hackers possibly related to the Chinese military – had attacked its website for many months. Those attacks began on the eve of the Times‘ publication of the first of David Barboza’s Pultizer Prize-winning series on Premier Wen Jiabao’s role in preventing the legally-mandated break-up of one of his family’s lucrative holdings – Ping An Insurance.

Additionally, according to Ford, China’s changed visa regulations, which applies to all foreigners residing in China, makes renewal of the J-1 visa procedurally more difficult.  With the new regulations that went into effect in July 2013, the PSB (which is the entity that issues the visa; MOFA issues the press card which is necessary to obtain to apply for the visa) is now permitted to take 15 business days – basically three weeks – to issue the renewal. During that time period, the PSB holds on to the reporter’s passport, making international travel impossible.  Prior to those changes, the PSB only had 5 business days for the renewal process.  How these procedural changes will affect the J-1 visa renewal process is yet to be seen, but at the very least, it makes an already trying process more difficult.

Foreign Media Outlets Can’t Get Their Reporters In

For foreign journalists living in China, the visa renewal process is certainly distressing.  But for those journalists trying to get into China, the visa process can become a wall.  Included in the FCCC’s November 2012 report, 20 foreign reporters stated that they had to wait four months or more for their J-1 visas to be processed.  According to Ford, the FCCC considers waiting more than three months for a J-1 excessive.  For a temporary correspondent who receives a J-2 Visa, the FCCC believes it should only be a 30 day wait.

Presently, two individuals waiting an excessive period of time for a journalist visa are New York Times’ reporters Philip Pan and Chris Buckley.  Pan, who is ostensibly the New York Times‘ Beijing Bureau chief, has been in a Chinese government-imposed visa-limbo since March 2012.  His colleague Buckley, reporting on China from Hong Kong, has been waiting for his J-1 visa since at least December 2012.

But the New York Times is not alone.  Andrew Higgins, the Washington Post‘s China correspondent waited in Hong Kong for over three years for his J-1 visa.  His crime?  Likely his 1991 expulsion from China for possession of confidential documents concerning the alleged suppression of a Mongolian nationalist movement.  Unable to obtain his J-1 visa, in September 2012, Higgins announced his resignation from the Washington Post.  He now reports for the New York Times from Brussels.

If Higgins’ experience and Mooney’s outright visa denial are any guide, the future does not look bright for Pan and Buckley.  Especially in light of the fact that the New York Times has more recently published another likely sensitive series –  J.P. Morgan Chase’s hiring of the Chinese leadership’s children, including the daughter of former Premier Wen Jiabao.  Luckily the New York Times hasn’t gotten the hint that its coverage isn’t particularly popular with the Chinese regime.

For Part 2, which examines various U.S. media outlet’s possible self-censorship, please click here.

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By Elizabeth M. Lynch, June 7, 2013

Sunnylands’ golf course – will this lady be President Xi’s caddy?

President Obama and China’s new president, Xi Jinping (pronounced See Gin-ping) have much to discuss in their two days of informal meetings scheduled to begin Friday in Sunnylands, California.  Economic ties, cyber-espionage, North Korea, the United States’ “pivot” to Asia, will all likely be on the agenda.

One small critical item that needs to be on that agenda: China’s increasingly hostile treatment of foreign journalists, especially those foreign journalists whose stories the Chinese government does not like.

Freedom of the press is limited for the Chinese domestic media.  The Chinese government still supports certain state-run media outlets which serve as its mouthpiece and even the independent, commercial media is subject to censorship, including daily instructions on what not to report.  It likely comes as a shock to the Chinese government that it cannot control the foreign press in quite the same way.

But that doesn’t mean it does not try.  Over the past year, in response to critical articles and coverage, the Chinese government has attempted to censor the press with something that many fear most: a denial of a journalist visa during the annual renewal period or a visa renewal that is conveniently not processed.  In 2012 alone, four journalists, Al Jazeera’s Melissa Chan, the Washington Post’s Andrew Higgins, the New York Times’ Philip Pan and also Chris Buckley, have either been forced to leave China or not allowed to enter because of visa issues.

Buckley’s visa problems are likely attributable to his colleague, David Barboza’s hard-hitting series on the then Vice Premier Wen Jiabao’s family’s inordinate amounts of wealth.  Although Barboza’s visa was renewed, when Buckley’s visa expired on December 31, 2012, even though he put in for a renewal months prior, the Chinese government was still processing his paper work.  Without a valid visa, Buckley and his family were forced to leave China.  As of today – six months later – Buckley is still reporting from Hong Kong and waiting on his visa.

China’s visa vendetta diplomacy may seem minor but it doesn’t have to stay that way.  Right now, the Chinese government has decided to deal with recalcitrant foreign journalists by not renewing their visas or in some cases toying with their visas (in a 2012 survey, the Foreign Correspondents Club of China found that a third of its members surveyed stated that they had difficulty renewing visas.  The majority of those journalists believed – or in some cases were told – that their difficulty was a result of specific reporting).

But each one of these reporters are also subject to Chinese law, including Chinese criminal law.  Articles 102 to 112 of the Criminal Law criminalize behavior that is a threat to national security.  In particular, Articles 105 and 111 are commonly used to censor dissent and carry prison terms of 3 years, 5 years, 10, life or death depending on the severity of the circumstances.

•             Article 105: “Whoever instigates the subversion of the political power of the state and overthrow the socialist system through spreading rumors, slandering, or other ways….”

•             Article 111: “Whoever steals, secretly gathers, purchases, or illegally provides state secrets or intelligence for an organization, institution, or personnel outside the country….”

Article 4 of the Regulations of the People’s Republic of China on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists (“Regulations”) makes clear that foreign journalists are subject to China’s laws, including its criminal law.  Although the Regulations were amended in 2008 to take out specific prohibitions against endangering China’s national security and using foul means to carry out news coverage (see Article 14 of the earlier regulations here), the fact that these provisions were deleted does not shield foreign journalists from those provisions of the Criminal Law dealing with the same issues – Articles 105 and 111.

As the cases against Stern Hu – a naturalized Australian business man and Rio Tinto executive – and Xue Feng – a naturalized U.S. citizen and geologist – demonstrate, China will bring criminal charges against foreign citizens. Hu, whose case began as a “state secrets” case, was given 10 years; Xue was given 8 years in his “state secrets” case.

So far, the Obama administration has remained publicly silent about China’s attempted censorship – through the visa process – of American journalists and American media companies.  Hopefully there is behind the scenes discussions about this issue and that it will be discussed during the next two days.

If the issue is not raised and highlighted as a priority, that silence will come with a price.  As foreign journalists continue to write hard-hitting exposes on China, the Chinese government will begin to realize that its visa vendetta diplomacy has not had the intended effect and might resort to another tool in its tool box against foreign journalists – China’s vague and expansive “endangering national security” provisions of its Criminal Law.