china-law-society

[china-law-society]

Is Nosedive a Faithful Depiction of China’s Social Credit System?

In this short and fascinating piece, Mr Xueliang Zhang (J.D. Candidate, Class of 2021, Faculty of Law, the Chinese University of Hong Kong) compares China’s social credit system with Black Mirror’s famous episode of Nosedive. He discusses similarities and differences of the two regimes. (Editted by Michelle Miao, Associate Professor, Faculty of Law, the Chinese University of Hong Kong)

Xueliang Zhang

Nosedive, one of Black Mirror’s famous episodes depicts an orderly world based on a rating system, where everyone uses a mobile app to rate others’ behaviour. Everyone gets five points at the beginning. The score is boosted upon receiving a good rating and goes down upon receiving a bad rating. It is in close relation to people’s social activities, determining what type of car they can rent, whether they are invited to a wedding or have priority to medical treatment and so on[1]. China’s Social Credit System is often regarded as a real-world version of Black Mirror. For example, in Rongcheng in Shandong Province, a pilot city adopting a social credit system, every citizen is assigned 1000 points to start with. Good deeds, such as donating money or blood, returning a found wallet to its owner, will be given a good rating and by doing these deeds, citizens can earn more scores. While bad acts, such as beating one’s partner, failing to pay off their debts in a timely manner, will be given a bad rating and their scores will drop[2]. Citizens are awarded a good reputation with high scores as the ratings will be made publicly available. Also, the scores in Rongcheng’s rating system are linked to their social entitlements, such as the access to low-interest loans, eligibility to high spending and so on.

China’s social credit system and Nosedive’s rating system are not newly developed concepts. The financial credit system is their precedent, where financial institutions publish a list of low credit ratings and restrict people’s exercise of rights[3]. China’s social credit system and Nosedive’s rating system are extreme cases compared with financial rating system as they extend the idea of a standard credit check to all aspects of life. Although both systems are quite similar, there are many differences between the Rongcheng City’s credit system and the one in Nosedive. The most significant difference is that ratings in Nosedive are based on people’s subjective judgments, namely people rate the behaviour they directly get in touch with according to their feelings (similar to Uber’s or China’s take-out or courier rating system, where customers rate services they receive[4]), while under China’s social credit system, people’s behaviour is given rating by the authority, making the rating standard more objective[5]. Besides, as far as the application scope is concerned, not all regions of China apply a credit system (though it’s an official target), whereas rating system in Nosedive applies to the entire virtual world.

Yet China’s social credit system still has many problems: First, an accountability system is needed in order to make the entire regulatory process more transparent and restrict the regulator’s power[6]. For instance, people in Rongcheng donate money without knowing how it has actually been used. What if there are some corruptions? Another issue is the vague criteria of rating and that the public does not have access to the specific rating criteria. Lack of accountability system may lead to abuse of power. Second, the rectifying measures may not be scientific. For example, when a man beats his wife and he only need donate money to pay for it, then he may not be regretful. Third, a comprehensive rating system may violate the individual privacy. Indicators of all aspects of people’s life will be published. Everyone may be under scrutiny and there is a lack of privacy. Finally, most of Chinese medias have thought highly of the credit system only because the Chinese medias are officially controlled, it is hard to expect them to publish critical comments on such an officially launched scheme.

Despite these shortcomings, the credit system also has its practical function. Its original purpose is to force those who do not fulfil their obligations to rectify; for instance, those who often borrow money may have to pay off debts due to so many harsh restrictions. As a citizen, I’m not in support of the credit system as this system raises moral obligations to a level close to legal obligations, whose legitimacy has yet to be tested over time. It is also a challenge to the basic human rights of citizens through excessive intrusion into personal space. We can only make a conclusion that there remains a lot of room for improvement of China’s social credit system.

[1] Daithí Mac Síthigh & Mathias Siems, The Chinese Social Credit System: A Model for Other Countries?, Modern Law Review, 82 (6) 1034-1071, p.1069.

[2] Id., p. 1051.

[3] Id., p. 1035.

[4] Id., p. 1039-42.

[5] Id., p. 1069-70.

[6] Id., p. 1071.

[china-law-society]

FRT: Public’s Acceptance must come with Proper Protection

In this informative and well-researched contribution, Ms Jessica Chai (Chinese Business Law (CBL) Candidate, Class of 2021, Faculty of Law, the Chinese University of Hong Kong) offers a comprehensive overview of the Facial Recognition Technology that we discussed during our LAWS6101 class on Legal System and Methods in China. She explores cases and discourses surrounding this controversial technological innovation from various jurisdictions. (Edited by Michelle Miao, Associate Professor, Faculty of Law, the Chinese University of Hong Kong)

By Jessica Chai

The use of facial recognition technology (FRT) is becoming increasingly common, not just in China but in many parts of the world. Unsurprisingly, the development of this technology has ignited public anger and has led to aggravated debates regarding its ethics as it poses issues such as the intrusion of privacy and the theft of one’s image.

It is in Kostka’s research that individuals’ impressions and interpretations of the FRT systems are significant determinants of its acceptance.[1]  However, one should be cautious in taking this phenomenon of public reluctance and repugnance as a conclusive indicator of the technology given that it is still in its premature stage. Instead, one should realize that there is still scope for improvement and recognize the potential benefits that come with this innovative technology rather than rejecting it purely due to a lack of education about it and the fear of unforeseen repercussions. For example, when Electronic Payment Technologies were first introduced, many were sceptical about its utility and were blinded by their preconceived (though reasonable) worries. Who would’ve thought that this system would be as beneficial as it is in today’s world? Instead, if we draw analysis of Jinnan’s research[2], the service provider shall instead pay attention to reducing users’ perception of risks and uncertainties and elicit more positive emotions and feelings.

To this end, I would like to draw the reader’s attention to the benefits that can be seen in the current form of the technology. During the spread of the pandemic, the FRT has proven to be a useful tool to help curb the spread of the disease by identifying and notifying citizens about the virus carriers’ whereabouts and measuring one’s temperature without physical. Moreover, FRT is a powerful instrument for public agencies and law enforcement to help improve security in educational institutions and airports[3], locate missing people[4], prevent crimes and corruption[5], pay pensions[6], limit gambling addiction[7], shorten queue time for entrance and more. All these case scenarios are concrete evidence of an improved and advanced life through the use of this technology.

However, is it justified to violate individual privacy in exchange for the promise of greater security? Should we concern ourselves with the perceived risks and uncertainties?

The right to privacy is a fundamental human right in which we take pride in valuing and protecting in this modern 21st century. Strict surveillance is not an appropriate state control’s method as we will find ourselves living under the what we deem a suffocating and evil Orwellian dystopia. The realms in which people are forced to live, act, and speak in certain ways are simply intolerable, especially when it is promised that the protection of fundamental rights is an important and integral part of civilization.

‘If you have done nothing wrong, then you have nothing to hide’. This is seemingly a convincing argument because every citizen is expected to act in accordance with the law, if not, do not blame the authorities for catching you red-handed. However, according to Kostka’s[8] study which is primarily based on the correlation between public acceptance and perceived risks, reliability and that to the concern of privacy, what people demand is not absolute privacy, but the right to be governed by the responsible government through reliable systems. Kostka’s[9]  study shows that acceptance of facial recognition technology is generally higher among the younger, highly educated and higher-income population, of which is contradictory to the general view which argues that the better educated, coastal urban residents would be expected to be more sceptical of such technologies.[10] However, the prerequisite to the implementation of FRT is a reliable system. Sadly, such systems are not ready yet.

Reliable Systems

Many cities and agencies have been alarmed with problematic technologies which have appeared to be flawed and inaccurate, often embedded with racial bias. For example, back in 2017 when Apple released its Face ID, it was reported in Mirror magazine that the algorithm could not differentiate the facial features of Chinese users. [11]  According to the Washington Post, an 18 year-old Ousmane Bah was falsely arrested for robbery in New York after FRT mistakenly identified him as the perpetrator. [12] In fact, NIST identified that the algorithms developed in the US consistently had a higher rate of misidentification in Asian, African American and Native American faces. [13] Robert Julian Williams was one of the African Americans who became the victim of the egregiously flawed technology. He was arrested for robbery due to misidentification and during interrogation, the police had pre-determined his guilt as they had instinctively relied on technology. Fortunately, he was released after 30 hours of detention due to insufficient evidence. Imagine what would happen if he was convicted simply because of misidentification.

In China, Dong Mingzhu, the chairwoman one of China’s biggest producers of air conditioners – Gree Electric Appliances – found herself being ‘named and shamed’ on a huge screen for jaywalking.[14] Just recently in the case of R(Bridges) v Chief Constable of South Wales Police [15], the Court of Appeal in the UK ruled that the FRT still possess ‘fundamental deficiencies’ in its deployment. If the country is all in on Artificial Intelligence, these unsettling implications should not be overlooked. It is not the FRT that we fear, but the practical consequences as a result of mismatch and mistakes. Nothing can erase the traumatic experiences of being falsely accused, arrested, detained, ‘named and shamed’ or the stigma of being labelled a criminal.

Putting aside the issue with privacy intrusion, whilst the benefits of the FRT are undeniable, under no circumstances should users be expected to tolerate the inherent bias and flaws embedded in the system. Maybe the future just isn’t ready yet. The systems still need tweaking.

Responsible Agencies

Believe it or not, FRT is inevitable in the fast-moving data-driven world we inhabit. It is a matter of whether the agencies in charge of these data act responsibly. Personal information including name, age, blood type, gender, address and possibly sensitive information such as sexuality, family relations etc. can be given away to someone in a matter of milliseconds. Furthermore, we are kept behind closed doors regarding the extent to which data is collected and the purpose of collecting the data. In fact, it is strikingly worrying to know that many mobile apps have been excessively collecting and using personal information including personal photographs, fingerprints, trading accounts and records, education background, vocation etc. (Chinese Consumers (CCA)). Besides that, one thing we learned from R(Bridges [16]) is that we have yet come to a consensus as to what is considered ‘proportionate extraction and balanced use’ of personal data to avoid impermissible unjustified usage.

As far as law enforcement or government agencies are concerned, this essay thinks that strict and disproportionate surveillance and excessive collection of one’s data not advisable. This is because it might have far-reaching consequences on the individual freedom, creativity and confidence due to the fear of being under surveillance or breaking the law, which could inhibit the growth and development of revolution somehow. As for private entities, an unregulated and excessive collection of data is vulnerable for breach of privacy as seen in the very first China’s FRT case of Guo Bing v Wildlife Park. The case is still on pending, and the issues have not yet been decided. However, its outcome will be an important message to the FRT users and consumers as to the limit and scope of the rights and obligations of FRT users in China. Nevertheless, this essay opines that all data should be collected with clear consent, and the collection should be proportionate to the extent to serve public security and health purposes. Also, the FRT users shall bear the onus to prove that the collection of  personal data is justified by legitimate reasons, and if not, they shall be liable for imposing unfair contract terms, if consumers are not independently given the freedom to consent for the collection of data and take their non-consent as denying the main service as a whole; or breach of privacy for over-collection of data.

Conclusion

While the public should be educated on the use of such technologies, the danger of facial recognition technology as highlighted should first be tackled. Furthermore, it is also the ethical duty of the government and private entities to maintain proper and balanced use of such sensitive information because, a case of misuse would cause significant and disproportionate detriments to the particular individual, and at worst, destroy their trust and reliance towards such development. In short, if we are not careful towards the deployment of FRT technology, we might find ourselves trapped in the vicious cycle of debate as to whether FRT is beneficial all over again.

[1] Kostka, Genia and Steinacker, Léa and Meckel, Miriam, ‘Between Privacy and Convenience: Facial Recognition Technology in the Eyes of Citizens in China, Germany, the UK and the US’ (February 10, 2020).

[2] Jinnan Wu, Liu Lin, ‘Consumer Acceptance of Mobile Payment Across Antecedents and moderating role of diffusion stages’ Ind. Manag. Data Syst (2009) 117 Vol 8 (1761-1776)

[3] Gillespie, E., ‘Are you being scanned? How facial recognition technology follows you, even as you shop’. (The Guardian, February 2019) accessed on 20 October 2020 at https://www.theguardian.com/technology/2019/feb/24/are-you-being-scanned-howfacial-recognition-technology-follows-you-even-as-you-shop

[4] Bernal, N., ‘Facial recognition to be used by UK police to find missing people’ (The Telegraph, July 2019) accessed on 20 October 2020 at https://www.telegraph.co.uk/technology/2019/07/16/facial-recognition-technologyused-uk-police-find-missing-people/

[5] Chen, S.,‘Is China’s corruption-busting AI system ‘Zero Trust’ being turned off for being too efficient?’ (South China Morning Post, February 2019) accessed on 20 October 2020 at  https://www.scmp.com/news/china/science/article/2184857/chinas-corruption-bustingai-system-zero-trust-being-turned-being

[6] Zhan, N., ‘Chinese government uses facial recognition app to pay out pensions.’ https://asia.nikkei.com/Business/Startups/Chinese-government-uses-facialrecognition-app-to-pay-out-pensions (Nikkei Asian Review, October 2019).

[7] Robson, D. ‘Facial recognition a system problem gamblers can’t beat?’ (The Star, January 2011) accessed on 23 October 2020 at https://www.thestar.com/news/gta/2011/01/12/facial_recognition_a_system_problem_ gamblers_cant_beat.html

[8]  N1

[9]  ibid

[10] Pan, J., & Xu, Y. ‘China’s Ideological Spectrum’ (2018) J. Politics Vol 80(1) pp. 254- 273 https://www.journals.uchicago.edu/doi/abs/10.1086/694255

[11] Sophie Curtis, ‘iPhone X Racism Row: Apple’s Face ID fails to distinguish between Chinese users’ (Mirror Magazine, 22 Dec 2017) accessed on 23 October 2020 at https://www.mirror.co.uk/tech/apple-accused-racism-after-face-11735152

[12] Hamza Shaban and Meagan Flynn, ‘Teen sues Apple for $1billion, blames facial recognition at stores for his arrest’ (The Washington Post, Apr 2019) accessed on 20 October 2020 at https://www.washingtonpost.com/technology/2019/04/23/teen-sues-apple-billion-blames-facial-recognition-stores-his-arrest/

[13] Extracted from MIT Technology Review. Karen Hao, ‘A US Government study confirms most face recognition systems are racist’ (MIT TR, Dec 2020) accessed on 20 October 2020 at https://www.technologyreview.com/2019/12/20/79/ai-face-recognition-racist-us-government-nist-study/

[14]Li Tao, ‘Facial Recognition System in China mistakes celebrity’s face on moving billboard for jaywalker’ (The Star, 23 November 2018) accessed on 23 October 2020 at   https://www.thestar.com.my/news/regional/2018/11/23/facial-recognition-snares-chinas-air-con-queen-dong-mingzhu-for-jaywalking-but-its-not-what-it-seems

[15] [2020] EWCA Civ 1058

[16] ibid

[china-law-society]

The Contradiction between Fairness and Justice in China’s Countryside

The Contradiction between Fairness and Justice in China’s Countryside

— The Story of Qiu Ju as a Case Study

In this interesting commentary, Ms Tingting Nie shares her observation and insights about a 1992 Chinese comedy-drama film, the Story of Qiu Ju (qiuju da guansi). The film, which won the 1992 Golden Lion Award at the Venice Film Festival, was directed by Zhang Yimou and stars Gong Li as the leading actress. Tingting explains how the films reveals some…