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By Elizabeth M. Lynch, August 5, 2020

For the past couple of weeks, the Trump Administration has been saber-rattling about TikTok, a Chinese-based social media platform popular among America’s youth and full of silly short videos – relatives dancing together, kids lip-syncing, teens sharing beauty tips.  According to Reuters, 60% of TikTok’s active users in the U.S. are between the ages of 16 and 24.  The idea that TikTok is a national security threat and a danger to our democracy seemed preposterous.

But over the weekend, these seemingly preposterous ideas became very real, with U.S. President Donald Trump stating that he was going to “ban” TikTok from the U.S. market.  And on Monday, Slate’s What Next podcast took on the TikTok debate, interviewing Axios reporter Bethany Allen-Ebrahimian on the reasons behind the Trump Administration’s desire for a ban.  While an informative interview on the Trump Administration’s justifications behind its threats to ban TikTok,  China Law & Policy came to realize that it’s time to take a deeper dive on TikTok.

Is TikTok A National Security Threat? 

Much of the What Next interview centered around TikTok as a national security threat, arguing that because TikTok’s parent company, ByteDance, is located in China, TikTok may have to share information with the Chinese government under Chinese law.  As China cybersecurity expert Samm Sacks recently noted, theoretically, this could happen.  But according to TikTok, it does not maintain any U.S. users’ data in China.  Instead that information is kept on servers in the U.S. and in Singapore.  Additionally, TikTok has allegedly cut off China-based engineers to TikTok’s source code and data.

Bytedance and TikTok founder Zhang Yiming

There is potential here for the Chinese government to obtain a large swath of U.S. users’ data, especially if the protections that TikTok has allegedly put in place don’t work.  But as Sacks points out, we have no evidence that this has actually occurred. But yet, the U.S. government is asking the American public to accept a forced a sale of TikTok to a U.S. company – something that feels more and more like a shakedown – without providing a scintilla of evidence that this song-and-dance social media platform popular among teenagers is an actual national security threat.  Our elected leaders owe us more than just conclusory statements. If they want us to forgo one of the core tenants of our society – a free and flourishing market economy – they need to provide us some evidence.

And as Sacks points out in her piece, if the Trump Administration is truly concerned about potential national security threats, it would be wise to develop a system to test the safeguards companies have put in place to guarantee that U.S. users’ data will not be used by any government:

The way to deal with this problem is to develop a country-agnostic set of criteria with robust rules not just for TikTok, but for how all companies collect, retain, and share their data. Instead of playing a game of whack-a-mole against a rotating cast of Chinese tech companies, the U.S. would be wise to spend more time developing legislation and standards for how all companies, regardless of country of origin, protect online privacy and secure data.

But such forward-thinking ideas that would actually solve the problem do not seem to be a part of the Trump Administration’s TikTok calculus.

Is TikTok A Danger to Democracy?

According to Allen-Ebrahimian, the Chinese government could use TikTok to wage a campaign of disinformation to influence our elections.  But that danger is not unique to TikTok.  Remember the 2016 election and Russian interference?  According to the Mueller Report, that election interference was largely done on Facebook through fake accounts and purchased ads.  TikTok is no more or less susceptible to disinformation than any other social media platform, be it FaceBook, Instagram, Snapchat, YourTube or Twitter.  There is nothing holding the Chinese government back from using those sites if TikTok is banned in the U.S.

But if you’re China, why stop there?  As Jeremy Daum recently pointed out, the best way for foreign governments to influence our elections is through limitless donations to Political Action Committees (PACs) by U.S. subsidiaries of state-owned enterprises. After the Supreme Court’s decision in Citizens United  v. Federal Election Commission, this is perfectly legal.   By treating corporations the same as individuals, Citizens United leaves the door wide open for foreign influence in our politics. In the case of Chinese corporations, this also means foreign government involvement. Most multinational Chinese corporations, like Haier, China Telcom, and China State Construction Engineering Corporation (CSCE), have U.S. subsidiaries. These are companies incorporated in the United States: Haier’s U.S. subsidiary, Haier American Holding Corporation, China Telecom’s subsidiary, China Telecom Americas, and CSCE’s subsidiary, China Construction America, are all incorporated in Delaware.

Under Citizens United, all three of these subsidiaries are citizens of Delaware and enjoy the same political speech rights as any other citizen of the United States. Citizens United does not permit us to look behind their corporate veil to see their relationship to foreign corporations. Haier, China Telecom and CSCE are all officially government-run. While the Chinese government does not meddle in the corporation’s daily affairs, it will exert its influence if it suits the government’s self-interest. For example, in 1994, Haier, a manufacturer of washing machines and refrigerators, was pressured by the Chinese government into acquiring a pharmaceutical company, a venture that ended badly.  And while Citizens United forbids “foreign influence” on a U.S. subsidiary’s political donation decisions, how are we going to find that smoking gun in the complex and complicated world of multinational corporations?

TikTok is not the demise of our democracy.  We are.  In the past four years, neither Congress nor the Trump Administration has done anything to put in place structures that protect our elections from foreign interference via social media.  And a decade later, Citizens United still stands.

Conclusion

There are serious issues with TikTok. It is necessary to understand better what it does with U.S. user’s data and some of the examples of censored speech, especially if the speech is anti-China, are problematic and need to be looked into.

But in the end, these are insufficient bases for the extreme tool of divestiture for national security reasons.  Banning TikTok is not going to solve our problems.  Setting up smart laws, rules and systems that ensure that foreign tech companies are not national security threats nor a danger to our democracy will go a much longer way.  But that doesn’t seem to be in the cards with this Administration.

For Those Who Don’t Have TikTok – Three Fun TikToks:

@thearielleWhen your old jam comes on! 🔥 ##foryoupage ##fyp ##comedian @mattjcutshall♬ original sound – thearielle

@afrobysaraawho’s down for this challenge? ##familychallenge ##familygoals ##nobodydancevideo ##fyp ##foyou ##viral♬ original sound – sara.afro

@jalaiahharmonLike we hit the lottery 🆙🔥🥳 @addisonre @charlidamelio♬ original sound – _.xoxlaii

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By Elizabeth M. Lynch, July 1, 2020

Prof. Jerome A. Cohen

It was my first trip to Taiwan and I was traveling with a celebrity, Jerome A. Cohen.  I had started working for Jerry at NYU Law School’s U.S.-Asia Law Institute only a few weeks prior.  Because it was August, I hadn’t seen much of my new boss who was spending the summer in Cape Cod.  Taiwan would be my first opportunity to get to know Jerry, one of the pre-eminent scholars of Chinese law in the West.

As soon as we arrived in Taiwan, Jerry’s importance in the region was evident.  At the airport, we were picked up in a car befitting a high-level dignitary.  We dined with then-Vice President of Taiwan, Annette Lu, a former student of Jerry’s and who, in 1985, Jerry helped secure an early release from a 12 year prison sentence for her political speech. And wherever we went, people asked Jerry about another of his former students, Ma Ying-jeou, a presidential candidate who would eventually win.  This law professor from New York had the ear of the highest level of Taiwan’s politics.

Jerry’s high-level contacts didn’t stop at politics.  We also met with Justice Lai In-jaw, the recently appointed President of Taiwan’s Judicial Yuan, in other words, the chief justice of Taiwan’s highest court.  He too had been a student of Jerry’s.  For over an hour, Justice Lai and Jerry discussed recent legal changes in Taiwan and Justice Lai expressed his excitement about his new position leading the Court.

At the end of the meeting, when we had already stood up to show ourselves out, Justice Lai stopped us, turned to Jerry, and, after noting that Jerry had clerked for Chief Justice Earl Warren in the 1950s, asked in a hushed, solemn tone “Do you have any advice for me in my new position?”

Jerry paused, looked at Justice Lai and asked  “Have you ever watched The Graduate?” The seriousness on Justice Lai’s face quickly disappeared with his eyes opening wide.  A smile spread across his face and in a voice louder than I expected said “Yes!  Mrs. Robinson!  The Sound of Silence!”

Jerry in Beijing, 1973. Photo courtesy of Joan Lebold Cohen

Evidently Justice Lai was a fan of the flick.  But I wondered, where is Jerry going with this; how could The Graduate, a movie from the 1960s where a mother seduces her daughter’s boyfriend, provide guidance to the future president of Taiwan’s Judicial Yuan.  Jerry continued.  “Do you remember the first scene, the pool party?”  “Yes!” Judge Lai exclaimed.   “Do you remember when Dustin Hoffman asks his dad’s friend, ‘what should I do?’ And the friend says ‘Plastics.  Get into plastics.’”  Judge Lai, still smiling, nodded repeatedly.  Jerry looked at Justice Lai and with a smile said “So Justice Lai, get into plastics!”  On that note, our meeting was over and I thought, what have I gotten myself into?

What I got myself into was the start of a relationship that would change my life and shape the way I see China, the world and the pursuit of justice.  When I started working with Jerry back in 2007, he was in the thick of supporting China’s human rights (weiquan) lawyers.  But unlike other academics, he didn’t just study these lawyers.  He met with them. He supported them.  He advocated for them before high-level Chinese officials.  Jerry took on the cause of these human rights lawyers, recognizing that they were as much change agents as those in power.  Often it was through Jerry that their stories of persecution were kept alive in the West. Jerry’s unwavering belief that rights lawyers are necessary to rectify societal injustices rubbed off on me.  When, two and half years later, I was offered the opportunity to take a job with a legal services organization in New York City, I spoke with Jerry before making a decision.  I was torn.  Should I abandon the study of Chinese law for a public interest law job in the U.S.?  Jerry didn’t hesitate.  “Yes” he told me.  But that’s Jerry, always encouraging you to take a risk and sometimes knowing you better than you know yourself.

The last time I saw Jerry before New York City went into COVID lockdown was at a talk he was moderating about academic freedom in China.  During the question and answer period, a middle-age professor from China raised his card to speak.  When it was the professor’s turn, he began with an opinion that was contrarian and, as he continued to talk, the groans from other audience members were audible. Even I bristled at what seemed like the party line. The Chinese professor began to slow down, likely unsure if he should continue with all the eye rolls from the audience. But Jerry, looking directly at the Chinese professor, asked him to continue, telling the professor that he wanted to hear the professor’s on-the-ground experience. The professor resumed, a little more confident with Jerry’s encouragement. Jerry engaged the professor, asking pointed questions that developed what turned out to be an important and insightful perspective.

That moment is etched in my mind because it is so different from what we see in today’s society, where we are quick to stake a position and dismiss or objectify those whose opinions differ.  But Jerry is not afraid to be challenged by a different opinion and he has the grace to engage those with different perspectives, making them comfortable to share their life experiences.  We need to be more challenged.  We need to be more respectful of each other. We need to be more like Jerry.

Jerry with his wife, Joan Lebold Cohen

I also often think back to our meeting with Justice Lai where I first got to see Jerry’s mischievous side and learned that none of us should take ourselves too seriously; regardless of our age or where we are in life, we should continue to have fun.

So to Jerome A. Cohen, on this July 1, 2020, happy 90^th birthday! May you continue to be the teacher we need now more than ever and may you have many more years of fun!

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By Elizabeth M. Lynch, June 16, 2020

Wall Street Journalist Josh Chin

2020 was going to be a good year for Josh Chin.  He had just become Deputy Bureau Chief of The Wall Street Journal’s Beijing Bureau, had been awarded a prestigious New America fellowship, and received the Gerald Loeb Award for international reporting.  His was a career on the rise; a long way from his start as a freelancer.

On February 19, 2020, Chin, in his new role as Deputy Bureau Chief, sat in a waiting room at the Chinese Ministry of Foreign Affairs.  Chin’s boss was on the other side of a closed door, meeting with Ministry officials to discuss whether the Ministry would delay renewing one of their staffer’s soon-to-be-expired journalist visa.  Two weeks prior, The Journal had published an op-ed entitled “China the Real Sick Man of Asia” and the Ministry immediately responded, lambasting the author for his arrogance, prejudice and ignorance.  Chin and his boss were there to convince Ministry officials not to retaliate against their colleague.

When his boss emerged, Chin waited to hear his colleague’s fate: renewed credentials or delayed visa.  Neither his boss told him.  Instead, the Ministry had decided to expel Chin and another colleague along with the staffer.  Even though Chin’s journalist visa was still valid, he had five days to pack up his life of 13 years and get out.

Since 2012, the Chinese government has used its power over the journalist visa process to censor foreign news outlets.  For the Chinese government and the ruling Communist Party, the media exists to serve the Party.  “[L]ove the party, protect the party, and closely align [] with the party. . . .” President Xi Jinping told the government-run People’s Daily during a visit to their offices in 2016.  To keep foreign journalists in line, the Chinese government has used harassment, surveillance, visa delays and visa downgrades according to the Foreign Correspondents Club of China.

But for the United States, the press is viewed as central to our democracy, its freedoms enshrined in the First Amendment. “Our liberty depends on the freedom of the press, and that cannot be limited without being lost,” Thomas Jefferson wrote in a letter in 1785.  Because of this bedrock principle, the U.S. government has been hesitant to retaliate against Chinese journalists in response to the Chinese government’s provocations.  But enter Donald Trump, a president who constantly attacks the press.  For Trump, rolling back press Chinese journalists’ freedoms was not a hard choice.  Instead, it corresponded perfectly with his effort to undermine the press, an institution crucial to our democracy.

President Richard Nixon, not a fan of the press

Trump is not the first president hostile to the press.  John Adams signed into law the Sedition Act of 1798 which criminalized the publication of “false, scandalous or malicious writing” about the federal government.  Richard Nixon privately maintained an “enemies list” and illegally surveilled certain reporters.  The Obama Administration prosecuted 11 government employees and contractors for revealing classified information to the press.  But Trump’s treatment of the press is different and more nefarious to our democracy.  It’s “a systematic effort to de-legitimize the news media as a check on government power,” University of Georgia media law professor Johnathan Peters told the Committee to Protect Journalists last month.

The day Chin was expelled from China, U.S. Secretary of State Mike Pompeo condemned the Chinese government’s actions, stating that “[m]ature, responsible countries understand that a free press reports facts and expresses opinions. The correct response is to present counter arguments, not restrict speech.”  But on March 2, 2020, the State Department limited the number of journalist visas issued to Chinese state-run outlets to 100, effectively expelling 60 Chinese reporters.  The Chinese government responded with more severe sanctions: the expulsion of U.S. citizens employed by The New York Times, The Wall Street Journal, and The Washington Post.  Not long after, the Trump Administration issued its most punitive sanction yet: downgrading every Chinese journalist’s visa to a three-month term from a previous unlimited time period, regardless of whether they work for a Chinese, state-run news outlet or The New York Times.   The Chinese government has yet to respond.  But expect it to similarly relegate U.S. journalists to a three-month visa or expel all U.S. journalists from China.

Two expelled Wall Street Journal Reporters – Philip Wen (L) and Josh Chin (R) – on their way out of China. Photo Courtesy of Greg Baker / AFP

The Trump Administration’s tit-for-tat diplomacy is a far cry from Pompeo’s “correct response.”  Instead, it mimics Beijing’s tactics: restricting speech through the journalist visa process.  The United States, once the international champion of freedom of the press, is following the lead of an authoritarian, one-party state.  But this should not be a surprise.  The Trump Administration’s treatment of the domestic press the past three years reflects its authoritarian bent.  Trump repeatedly tweets “fake news” about news stories he doesn’t like and has called the U.S. media “the enemy of the people.”  The White House revoked CNN reporter Jim Acosta’s White House press credentials after Trump told him he was a “rude, terrible person.”  Trump’s re-election campaign has sued three major media organizations for libel in cases considered “long shots.”  These are all pages from Beijing’s playbook, a playbook where the media is subservient to the ruling party.

Some of Chin’s last articles from China were on the emergence of a novel coronavirus in Wuhan.  His reporting from early February, as well as that of his fellow, expelled colleagues, exposed the pandemic nature of COVID-19: hospitals overrun with patients; front-line medical workers dying of the virus; mortuaries unable to process the massive number of dead.  Their reporting foreshadowed what we would see on our shores a few months later.  Even with the Chinese government hiding early facts about the novel coronavirus, U.S. reporters were able to find – and report – the truth.  But this truth is an impediment to the Trump Administration’s narrative that China’s lack of transparency prevented it from recognizing the severity of COVID-19.  So while the Trump Administration publicly laments the Chinese government’s restrictions on U.S. reporters, it has to know that its retaliatory tactics means that there will be even less U.S. reporters in China.  But this may be precisely what it wants.

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By Elizabeth M. Lynch, June 1, 2020

This Thursday marks the 31^st anniversary of the Chinese government’s violent crackdown on the peaceful protests at Tiananmen Square.  On the night of June 3 and into the early morning hours of June 4, 1989, tanks rolled in to the streets of Beijing and the Chinese government did the unthinkable: it opened fire on its own people, killing hundreds if not thousands of unarmed civilians in the streets surrounding Tiananmen Square.  That violent crackdown marked the end of student-led, peaceful protests in the Square, protests that sought to bring reform to China.

To mark this anniversary, I was going to write a post on where China is today and its new attempts to squelch any dissent, protest, or rule of law in one of the last areas in China that permits freedom of speech: Hong Kong.  But as I sit here in New York City, on a picture-perfect spring afternoon, searching for photos of the tanks rolling into the Tiananmen Square area to accompany the blog post, my twitter feed is full of pictures of U.S. military trucks invading some of America’s largest cities to “put down” peaceful – and some less peaceful – protests.  These protests erupted soon after videos emerged of the brutal death of George Floyd, a black man who died after a white police officer pressed his knee into Floyd’s neck until Floyd stopped breathing. For eight minutes and 46 seconds, and even after Floyd’s handcuffed body went limp, the officer never stopped his pressure on Floyd’s neck. Three other police officers stood there and watched.

As protests erupt in the United States, our initial response is violence.  Tear gas and pepper spray fill the streets of many U.S. cities with the police resorting to heavy-handed tactics.  Peaceful protesters are hit with rubber bullets.  There is little attempt by the police to de-escalate.  Journalists find themselves the targets of police.  The government blames “antifa” forces for instigating the protests.  These  scenes conjure up images of last year’s protests in Hong Kong, where violent police tactics were used against unarmed protesters.  And with some Hong Kong protesters’ frustrations growing, they too sought to vandalize stores and destroy property.  The Chinese government blames “foreign forces” for riling up the people. The one difference: President Xi Jinping didn’t tweet that the Hong Kong police should shoot the protesters; that would be too reminiscent of 1989.  But, in the United States, President Donald Trump did tweet such sentiments. And mere days from the 31^st anniversary of the Chinese government unleashing its military to massacre unarmed civilians, Trump has threatened to do the same.

I know that substantively comparing the United States and China is inappropriate.  The police officer who killed Floyd has been charged with third degree murder and will be prosecuted at a public trial that will be covered by the press.  The officer’s fate will be determined by an independent judicial system.  These things would never happen in China, and increasing less so in Hong Kong.  And there are some police officers and national guard members showing restraint and solidarity with the protesters; those who are not will be held accountable.  Again, something that would not happen in China and isn’t happening in Hong Kong.  But the images from the United States this week, and the sentiments from the U.S. president, are eerily similar to images of Beijing in 1989 and Hong Kong last summer.  It’s too much to ignore.   And I fear that like the protesters in 1989 who sought a better society for China, the protesters this weekend in the United States will confront a government that prevents them from realizing a better society for us: one that is truly equal and  where black lives matter.

Every year, I dedicate this post to those killed on June 4^th, 1989.  But as I write this, I wonder, how many of the men and women who lost their lives in Beijing 31 years ago used their last breathes to cry out for their mothers, just like George Floyd did last week on the streets of Minneapolis.  And while we still must remember June 4^th, the lives lost and the dreams crushed, this year, I would like to dedicate this post to George Floyd.  And to Ahmaud Arbery, Breonna Taylor, Philando Castile, Sandra Bland, Eric Gardener, Michael Brown, Tamir Rice, Trayvon Martin and the countless other African Americans killed by the police in the United States (or people who thought they were the police).  We need to say their names.  We must never forget.  For them, we must continue to build a better society with freedom, equality and dignity for all.

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By Elizabeth M. Lynch, March 27, 2020

Donna Chiu (front & center) at a housing rights protest

Donna Chiu has dedicated most of her life to fighting for vulnerable New Yorkers.  A petite, Chinese-American woman with a quick smile and contagious laugh, you would never think she would be able to take on some of New York City’s sleaziest landlords.  But within the dark, dingy halls of New York City’s housing courts, she transforms into a pit bull, aggressively fighting for her clients, low-income tenants, and holding landlords responsible for their illegal practices.

But Chiu has a new villain to fight – the anti-Asian sentiment that is on the rise in the United States as a result of Covid-19 and a President who seems to take sick pleasure in constantly referring to the pandemic as “the Chinese virus.”  Since Covid-19 has hit the shores of the United States, anti-bias crimes and incidents against Asian Americans have increased according to The World Journal, a Chinese language newspaper based in New York.  In fact, since March 18, when President Trump doubled down on his use of the term “Chinese virus,” The World Journal has published an article almost every single day on bias crimes and incidents against Asian Americans in New York City.  Perhaps even more telling are the wechat groups and Asian-American focused websites like Angry Asian Man that are awash in conversations about the increase in anti-Asian incidents and crimes.

“I have not been a target myself,” Chiu told me when I asked her about the impact of Trump’s constant reference to Covid-19 as the Chinese virus. But she was quick to tie Trump’s remarks to increasing xenophobia, explaining how it has changed her day-to-day life: “[It] has made me not go to certain places or enter certain stores because now I view it as a serious risk to my safety; I stay alert when I was still riding the train and try to avoid eye contact with strangers and walk swiftly – all ad hoc measure to avoid being a target.”

For Janelle Wong, a professor of American Studies at the University of Maryland, blaming Chinese people for Covid-19 was no surprise.  When I asked Wong about her take on the increase of bias-related crimes against Asian Americans, she quickly put it in a historical perspective, going back to the 1882 Chinese Exclusion Act, one of the United States’ most exclusionary laws.  “Part of the justification for the exclusion was the idea that the Chinese were vectors of disease” Wong told me, sharing a cartoon from the time period to prove her point.  In that cartoon – cover art for the May 1882 issue of the aptly-name magazine “The Wasp” – three skeleton-faced ghosts, one named malaria, one named smallpox and one named leprosy, ominously float over the city of San Francisco.  The source for these menacing zombies?  Chinatown as the cartoon makes clear in the lower right hand corner.  The message?  Exclusion of the Chinese is the only way to save the city.

“It’s long been a trope that is easily used . . . but it’s been a while since a national leader has drawn [upon it],” Wong went on.  “That is what is shocking.”

When questioned on his use of the term “Chinese virus,” Trump denies that it has any racial animus.  For Trump, simply because the virus comes from China, it should be called “the Chinese virus.”  He ignores the World Health Organization’s (WHO) repeated instructions to avoid using country names as the name of an infectious disease so as to prevent bias against groups of people.

Make no mistake, Covid-19 did come from China. And there are many aspects of the Chinese government’s handling of the outbreak that put the world at greater peril.  It suppressed doctors from freely speaking about the virus which prevented the world from knowing earlier of the outbreak.  And, even though the Chinese government had to know that human-to-human transmission was occurring by the end of December, when almost every day it saw the number of Covid-19 patients double according to government data leaked to the South China Morning Post, it denied such transmission until January 20, 2020.

Prof. Janelle Wong

Would the Trump Administration have used that extra time to better prepare the country to fight Covid-19, say by preparing sufficient tests or ensuring that hospitals had sufficient protective gear to get them through a possible pandemic?  If current history is any guide, where we are all still anxiously awaiting widespread testing and our doctors and nurses are reusing face masks, likely not.

But still, Trump needs someone to blame for his gigantic missteps that are currently putting the lives of tens – if not hundreds – of thousands of Americans at risk.   For Wong, getting many Americans to follow the script of China bashing is easy. Which means, given our history, that Asian Americans will inevitably be targets.  Initially, Trump denied that his words would fuel anti-Asian crimes.  But on Monday night, after a plethora of Democratic politicians, civil rights groups and average Americans condemned Trump for using “Chinese virus,” Trump attempted to walk back some of his words, tweeting that Asian Americans are “amazing” people and that spreading the virus was not their fault.

But likely that tweet won’t be enough to put the racist genie back the bottle.  And, as Wong explained to me, this objectification yet again makes Asian Americans feel that they are forever the foreigner; that true belonging in the United States remains unattainable to non-whites, even those who may have achieved some modicum of economic success.  Those doubts were exactly what attorney Chiu was wrestling with when I talked to her.  “It doesn’t change a topic/issue that I’ve always struggled with  – which is what are Chinese-Americans place in America? Are we second class citizens just like the way we are treated?  And then with Covid-19. . . .I feel the climate is one where Chinese-Americans are not allowed to ‘feel bad’ for themselves because we are the cause of all this.”

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By Elizabeth M. Lynch, January 19, 2020

Freelance Journalist, Huang Xueqin

Huang Xueqin, a 30-something freelance journalist in the southern Chinese city of Guangdong, doesn’t look like a hardened criminal.  With a playful smile and wearing an Annie Hall-style hat, Huang seems like a friendly sort, with maybe a mischievous side.  But make no mistake, Huang is a fierce advocate for women’s rights, being one of the public figures behind China’s nascent #MeToo movement after coming out in 2017 about her own workplace sexual assault.  She’s written extensively on other women who have been sexually harassed and assaulted and, in 2018, conducted an online survey of female Chinese journalists finding that almost 85% had experienced sexual harassment on the job, with almost 60% of those remaining silent.

It was that activism that landed Huang in a Chinese detention center.  And on Friday, after holding her for three months under suspicion of “picking quarrels and provoking troubles,” a crime under China’s criminal law that has been used almost exclusively to silence peaceful critics of the Chinese government, Guangdong police finally freed Huang.  In a country where its founding leader once said that “women hold up half the sky,” it seems odd that a women’s rights activist would be considered a pariah, someone that the Chinese government has to deal with criminally.

But Leta Hong Fincher,[1] in her recent book, Title: Betraying Big Brother: The Feminist Awakening in China, explains precisely why the Chinese leadership trembles at the idea of women calling for their rights. Identifying China’s current leadership as “patriarchal authoritarianism,” Fincher, in her well-researched and insightful book, shows that unlike other social movements in China, these feminist activists are not just seeking a more open society or looking to fulfill the promises of equality under Chinese law.  As Fincher shows, if you take this feminist movement to its logical conclusion, only by overturning the current political and cultural order can these women achieve equality in China.

Fincher comes to this damning, powerful conclusion largely through the stories of five feminist activists who were detained for 37 days in 2015 and became known as the Feminist Five.  This choice – to tell the history of China’s feminist movement and forecast where it is headed through these women’s personal narratives – is what makes this read an engaging page-turner.  Not surprisingly, Fincher was previously a  China-based journalist and she brings that reporter’s eye for detail and desire to understand the characters behind the story.  And this is necessary because what caused the Feminist Five to end up in detention – also on suspicion of “picking quarrels and provoking troubles” – seems completely ordinary, and defies logic that this would be something that would scare any government, let alone China’s: they were just going to give out leaflets and stickers on public buses calling for the end of groping and provide women with information on how to report such an incident.

But for the Chinese government, this was a serious offense and the women needed to be broken.  Through in-depth interviews, Fincher retells, for the first time, these Feminist Five’s harrowing experiences during 37 days of detention.  They were subjected to physical and psychological torture: the police took away the women’s glasses, making them unable to see; interrogation was constant to the point that one woman needed medical attention; intense light, only a few inches from their faces, shown brightly in their eyes; medications were denied; and each was told about the threats made against their parents or children.  These women talk about the emotional toll that these interrogations had on them, making each question whether it was worth it.  But in the end, each remains committed to the cause, finding strength in the support of other Chinese feminists and inspiration from women activists abroad.

While the Feminist Five, and other Chinese Feminists’ stories makes the book a lively read, Fincher doesn’t shy away from more academic arguments to further support her argument of the Chinese government’s “patriarchal authoritarianism.”  She examines societal institutions: the lack of any women in positions of power in government; the prevalence of domestic violence in China; the failure to enforce the Domestic Violence Law; the pressure on women to marry and the shaming of single women (this was the focus of Fincher’s ground-breaking book, Leftover Women); the lack of career options for most women; nationalist rhetoric filled with misogyny; and seeing women solely as reproductive vessels.

Chinese feminists march at NYC’s Women’s March

Betraying Big Brother is a necessary read to understand the role of women in Chinese society and why the feminist movement may be one of the few social movements to overcome the Chinese government’s persecution.  Make no mistake, Fincher is not a neutral observer; she admits as much in the Introduction stating that she is a convert to the cause and friends with many of the women she writes about.  But this doesn’t hinder her scholarship; she finds sufficient evidence to support her arguments.  Fincher believes that China’s feminist movement will achieve its goals: there is broad discontent among women in China that crosses class lines and the creativity of these activists give them the uncanny ability to constantly influence public opinion even in light of the government’s crackdown.  But while Betraying Big Brother is full of hope, Fincher is not naïve.  She knows that the Chinese government will not give up without a fight and that things are going to get a lot worse for these activists before they get better.  Huang Xueqin is a recent case in point.

Rating:

Betraying Big Brother: The Feminist Awakening in China, by Leta Hong Fincher (Verso 2018), 205 pages

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[1] In the interest of full disclosure, Fincher is a colleague and friend .

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By Elizabeth M. Lynch, January 5, 2020

When I started seeing the Grayzone, a website that describes itself as “dedicated to original investigative journalism,” touted in various Chinese media reports (see here and here) for a study that allegedly debunked the estimate of one million Uighurs detained in internment camps in Xinjiang, I felt like I had to read it. But to call the Grayzone piece an analysis – or even objective journalism – would be a serious overstatement.  Instead, Ajit Singh and Max Blumenthal, the authors of “China detaining millions of Uyghurs?  Serious problems with claims by US-backed NGO and far-right researcher ‘led by God’ against Beijing,” largely dedicate their piece to the character assassination of the two organizations/people who first estimated the one million figure: the Network of Chinese Human Rights Defenders (CHRD) and Adrian Zenz, a social scientist at the European School of Culture & Theology and now a senior fellow at the Victims of Communism Memorial Foundation.

By focusing almost exclusively on ad hominem attacks, Singh and Blumenthal conveniently ignore that subsequent data sources have confirmed a one million number as credible.  And most absurdly, after portraying the CHRD and Zenz’s admissions that their numbers are merely estimates as a fatal flaw, Singh and Blumenthal completely fail to acknowledge why we can only estimate the number detained.  The keeper of the exact numbers – the Chinese government – refuses to publish any numbers let alone permit international monitors to enter Xinjiang and conduct their own, independent, on-the-ground analysis.

Protest to free one million Uighurs, held in Geneva in 2018

But regardless of the uselessness of the Grayzone article, it is good to periodically question our assumptions and re-review where exactly the the one million number comes from.  About a year ago, Jessica Batke, a senior editor at Asia Society’s ChinaFile and a former intelligence analyst at the U.S. Department of State, did just that, meticulously explaining why the one million estimate is likely not off the mark.  This post largely summarizes Batke’s piece in the context of the Grayzone article.

Singh and Blumethal begin their piece by questioning the CHRD study which was based upon interviews with eight ethnic Uighurs in Xinjiang.  For Singh and Blumethal, drawing a conclusion of one million detained from just talking to eight people is preposterous.   But the two choose to ignore the reasons why CHRD extrapolated one million detainees from its eight interviews.  As Batke points out in her analysis, each of these eight Uighurs were from a different village in southern Xinjiang.  Each person gave their estimate of the number of people who have gone missing in their village.  Based upon that number, CHRD formulated a detention rate for each village which ranged between 8% and 20%.  From those rates, CHRD chose a rather conservative estimate of a 10% Uighur detention rate province-wide, or, given that there are approximately 10 million Uighurs in Xinjiang, a one million detention number.

A prison camp in Xinjiang

Certainly there are things to question on CHRD’s numbers: how did each of these eight people know the number of people missing? Are they interned or did they just move?  But Singh and Blumenthal do not ask these questions.  Instead, for them, the death knell for the reliability of the CHRD estimate is the fact that CHRD receives funding from the National Endowment for Democracy (NED). But they never explain why this link matters or provide any evidence that this funding somehow undermines the reliability of CHRD’s estimate.

Similarly, Singh and Blumenthal’s review of Adrian Zenz’s study is more focused on his religious and political viewpoints, and his current source of funding, rather than on the data itself.  In the little attention the two give to Zenz’s data, they completely mischaracterize it.  Singh and Blumenthal state that Zenz’s one million estimate was based upon numbers reported by Istiqlal TV, a Uigher television station based in Turkey that often features interviews with suspected terrorists, which Singh and Blumethal believe reflect Istiqlal’s inherent unreliability.  But they conveniently leave out the fact that it was a Chinese public security official that leaked this data to Istiqlal TV, a fact later reported in Newsweek Japan.  Batke also noted this fact in her careful analysis of Zenz’s one million estimate, highlighting that the Chinese-leaked data listed around 892,000 individuals in 68 different counties in Xinjiang as detained.  However, as Zenz pointed out, the data was missing key population centers.  But instead of simply assuming that the same detention rate applies to the missing population centers, a method that would produce much more than one million detained, Zenz did a deep dive on the missing population centers, taking into account important difference, and according to Batke, comes up with a conservative – and plausible – estimate of one million detained.

Satellite images show the rapid construction of camps in Xinjiang

Batke also highlights corroborating evidence: the satellite images and Chinese government documents that also point to an equally large number of Uighurs being detained.  In October 2018, the BBC had experts review satellite images of the camps.  That group of experts concluded that 44 of the camps had a high or very high likelihood of being security facilities and a separate team architects determined that in examining one of these facilities, it could hold anywhere from 11,000 people, if each inmate has his or her own room, to 130,000 people, assuming these are dormitories.  Camp survivors have stated that they lived in cells with as many as 40 people.  Batke noted that if we took the higher number of people detained – which seems to be credible given survivors’ accounts – there would only need to be 10 similarly-sized camps to get to the one million mark.  Finally, as Batke points out, the Chinese government’s own documents – both its procurement documents and budget and spending reports –suggest that a very large number of people are being detained.

The one million estimate as the number of Uighurs detained is Xinjiang is not coming out of thin air.  Four different sources – CHRD, Zenz, satellite images, government documents – all come to the same conclusion.  Media outlets like ChinaFile and Quartz have also re-reviewed the data and found the one million estimate credible.  These outlets actively engage the data, unlike But Singh and Blumenthal whose focus is more character assassination.  Ultimately the only purpose that Singh and Blumenthal’s article serves is as a perfect example of the logical fallacy of argumentum ad hominem.

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By Elizabeth M. Lynch, November 26, 2019

A prison camp in Xinjiang

Last October, after denying the existence of internment camps in Xinjiang for over a year, the Chinese government finally admitted to their existence but claimed that they were nothing more than “vocational education and training centers.” Places where “students” – over one million of them and almost all Uighur and other Turkic Muslims – could rid themselves of Islamic extremism while simultaneously upgrading their job skills.  But camp survivors’ stories paint an entirely different, and much darker picture.  In story after story, former detainees talked about the prison-like conditions, of being held for months to years without access to the outside world, of physiological and physical abuse, and punishment solely for practicing their faith.  Women have consistently spoken of rape, forced sterilization and forced abortion.  Unfortunately, with the Chinese government’s refusal to allow outside monitors unfettered access to the camps, these survivors’ stories could not be corroborated.

Until now.  In the past two weeks, both The New York Times and the International Consortium of Investigative Journalists (“ICIJ”) have published two different troves of confidential Chinese government documents (the “Xinjiang Papers” and the “China Cables,” respectively) that confirm the unlawfully detention of Uighurs in what are essentially prisons.  According to the Xinjiang Papers, any direct inquiry by relatives as to whether their detained family member has committed a crime, officials are to answer no but immediately follow it up with the assertion that the their family member still needs  “education” to rid themselves of “unhealthy thoughts,” likening Islam to a disease.

Inside a Xinjiang Camp – looking more like a prison than a job skills class

ICIJ’s China Cables provide even more detail into the everyday operations of the prison camps.  Detainees are kept in “double-locked” rooms at all times and are constantly watched, even in the bathroom. Preventing escapes is paramount and there must not be any “blind spots” in the video surveillance of the detainees.  Guards are trained in “combat exercises” to ensure their immediate response if “something happens.”  Detainees are forbidden from having cell phones and family visits are never in person; only periodic phone calls and occasional video chats are permitted. Detainees are forced to remain in the center for at least a year.  And while the government documents refer to the camps as “vocational skills training centers,” it is apparent from the guidance provided to the camp administrators that the focus is to Sinicize the Uighurs and stamp out their religion.  In fact it is only after a year of ideological indoctrination do some – not all – detainees continue on for a three to six month “skills improvement” training, a training that is more responsive to future employers’ needs than to the individual’s.

In no way did the Chinese government ever want these documents released.  And the people who leaked these documents to the New York Times and to ICIJ put their lives on the line to stop the mass atrocities in Xinjiang.  According to Margaret K. Lewis, a professor of Chinese law at Seton Hall University, at least some of these documents would be considered state secrets.  “What is a state secret is very vague, can be defined retroactively and doesn’t need to be stamped ‘state secret’ to be considered a state secret,” Lewis told me when I asked her about the leak of the Xinjiang documents. Under China’s Criminal Law (“CL”), leaking state secrets is a serious offense, carrying a sentence anywhere from 10 years to life where the circumstances are especially serious (CL, Art. 111), which one would think is present here.  A death sentence is possible if the leak causes particularly grave harm (CL, Art. 113).

“They could also be charged with subverting state power,” Lewis told me.  “It’s not just what the documents were but also why they were giving these to foreigners” Lewis continued.  Like state secrets, subverting state power (CL, Art. 105) can carry up to a life sentence and if the person colluded with foreigners in the subversion, arguably what the whistleblowers did here, then the law requires that the punishment be severe (CL, Art. 106).  But, unlike state secrets, subverting state power is not subject to the death penalty.  In pressing Lewis further on what she thought the whistleblowers would be charged with and what type of sentence they would get, Lewis was clear: “This is less of a legal question and more of a political one.”  To Lewis, it will come down to what is best for President Xi Jinping: is it better to make an example of the whistleblowers, or are the whistle blowers high enough officials that publicly identifying who they are could be an embarrassment to the Chinese government, and thus their prosecution may never be public.  Under Article 183 of China’s Criminal Procedure Law, state secrets trials are closed to the public.

“The one thing that is certain,” Lewis told me “is, if the whistleblowers are caught, they will experience long-term detention and suffering.” And their families. “You’re not just putting yourself at risk, but also your loved ones,” Lewis said. “Whoever this person is, I am grateful for the risks taken to bring the documents to light.”

Protest in Brussels Calling on the EU to Speak Up Against the Internment of Uighurs

These whistleblowers must have known the high costs associated with leaking the documents.  But still they determined that it was worth it; that the world must know precisely what is happening in the Xinjiang prison camps; that Uighurs are unnecessarily suffering at the hands of the Chinese government; and that it must be stopped.  But since the release of the China Cables on Sunday, only the United Kingdom and Germany have demanded that China provide unfettered access to United Nations human rights observers.  But where is everyone else?  Where is the United Nations’ response?  Will Antonio Guterres, the current Secretary General who has stayed mum for the last two years about China’s treatment of Uighurs, finally condemn China’s actions?  And while the United States issued a strong statement, it could do more. The Uyghur Human Rights Policy Act is just sitting in the House; the State Department has yet to call call for the UN to be given unfettered access to Xinjiang; and Treasury makes no mention of  Maginsky Act sanctions against some of the high-level officials named in the Xinjiang papers.  And what about Australia, Japan, Canada, or any of the Arab nations?  Finally, where is the International Olympic Committee?  Do we really want Beijing’s 2022 Olympics to be a replay of Nazi Germany’s 1936 Games?

I can only hope that in the next few days I can add more countries to this post as ones that spoke out. But more than anything, I hope that these countries and organizations unite to take action to stop the crimes against humanity currently occurring in Xinjiang.  Individuals in China have put their lives on the line.  It’s time the rest of the world follow suit and have the courage to act.

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By Elizabeth M. Lynch, October 27, 2019

Uighur protester outside of China with a mask with the flag of East Turkestan and a Chinese flag covering her mouth

Last week, the Washington Post published my op-ed where I argued that what is being perpetrated against Uighur and other Turkic Muslim women – rapes, forced sterilization, forced abortion – are all crimes against humanity.  Since publishing that piece, many have asked why I decided to describe these acts as crimes against humanity?  Why am I not calling it genocide?  Or at least cultural genocide?

In the past few months, many have stated that the Chinese government’s actions in Xinjiang are akin to cultural genocide.  The government’s widespread razing of mosques; its destruction of Muslim burial grounds; its prohibition against certain religious baby names; its mass internment of 1.5 million Uighurs and other Turkic Muslims for no crime other than being Muslim; all of these reflect a Chinese government intent on destroying the Uighur culture and “Sinicize” them, making it cultural genocide.  But cultural genocide is not a crime under international law and thus, brings with it no legal duty for the world to stop it nor any punishment for the perpetrators.  In fact, the drafters of the Genocide Convention intentionally rejected the concept.  Instead, genocide under the Convention is limited to the biological or physical destruction of the group coupled with an intent to destroy.  When I spoke with Deborah Mayersen, a lecturer at the University of New South Wales at the Australian Defense Force Academy and an expert in the field of genocide studies, she was clear that she didn’t think that the situation in Xinjiang was genocide. “I do think there are warning signs, but at the moment [China] is not heading toward genocide” she told me.  “There would need to be some sort of disruption – an economic disruption perhaps that can be blamed on the Uighurs – for [China] to be on the trajectory toward genocide.”

“But we do have a fairly clear case of crimes against humanity” Mayersen emphasized.  Unlike genocide, crimes against humanity is not governed by a specific treaty.  Instead, it has developed through international customary law, with its use at Nuremberg, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda among other instances. Crimes against humanity include acts that attack the very soul of a people and its culture: murder, extermination, torture, arbitrary detention, forcible transfer of a population, rape, sexual violence, forced sterilizations, apartheid.  It might sounds a lot like genocide, but unlike genocide, these crimes do not require an intent to biologically destroy, an element we don’t yet have in Xinjiang.  Instead, acts that constitute crimes against humanity merely need to be part of a widespread or systemic attack directed at a group, with the perpetrator’s knowledge that his or her acts are part of this larger attack.

Because crimes against humanity is a legally recognized doctrine, it “brings with it the responsibility to protect” Mayersen told me, citing to a 2005 U.N. Resolution, signed by all 193 UN member states.  Under that Resolution, the international community is required to take quick and decisive action to protect the targeted group.

Protest in Brussels Calling on the EU to Speak Up Against the Internment of Uighurs

The unlawful internment of 1.5 million Uighurs and the removal of Uighur children from their families alone constitute crimes against humanity.  And rape and forced sterilization have been considered crimes against humanity for decades.  Sexual violence against women was a basis for crimes against humanity at the International Criminal Tribunal (ICT) for the Former Yugoslavia and of the ICT for Rwanda.  In 2013, the U.N. Human Rights Council, in its inquiry report on North Korea and after conducting a number of victim interviews, found sufficient evidence for a charge of crimes against humanity for the rape, forced abortions and sexual violence perpetrated against women.

Because there is more than sufficient evidence that what is happening in Xinjiang is crimes against humanity, activists, journalists and others must refer to it as such.  Only then is the world required to act.   To call it anything less gives the world a free pass and permits the Chinese government to continue to engage in its destruction of the Uighur people and their culture.

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By Elizabeth M. Lynch, October 21, 2019

Originally posted in the Washington Post

Mihrigul Tursun (L), testifying at the CECC hearing

Sitting in a hearing room in Congress, in a gray plaid hijab, her dark blond hair poking out, Mihrigul Tursun begins to cry. She is there to share the plight of her fellow Uighurs in Xinjiang. Her translator reads aloud Tursun’s prepared statement about her three separate detentions by the Chinese government in Xinjiang’s internment camps. As the translator recounts Tursun’s first detention — upon her release, she learned that one of her 4-month-old triplets had died — Tursun struggles to hold back tears. Click here to read the entire op-ed