Technology Governance Wiki - User contributions [en]

Module 5: Artificial Intelligence

2024-11-28T06:53:30Z

Grace Appleford: /* China */

== Text and data mining ==
According to [https://eur-lex.europa.eu/eli/dir/2019/790/oj Directive (EU) 2019/790], "‘text and data mining’ means any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations". The Directive further provides a framework for the use of such techniques.
=== Brazil ===

==== Introduction ====

Brazil is currently in the process of implementing a national strategy on AI, a process which Brazil began in 2020. The strategy is holistic and considers many different aspects where Brazil is working on legislation, regulation, and AI governance with an eye to ethical use of AI and alignment with international approaches to AI. Brazil’s AI policy also puts a focus on education, workforce & training, research, development and innovation, how AI can be applied in “productive sectors” of the economy and in public bodies, and public security. The overall policy is founded on a goal of stimulating research, innovation and development of AI solutions while maintaining conscious and ethical use of AI. This national strategy is captured in policy documents, including the Brazilian Artificial Intelligence Strategy ([https://www.gov.br/mcti/pt-br/acompanhe-o-mcti/transformacaodigital/arquivosinteligenciaartificial/ebia-summary_brazilian_4-979_2021.pdf EBIA]), as well as the National Strategy for Intellectual Property ([https://www.gov.br/inpi/pt-br/central-de-conteudo/noticias/cerimonia-marca-50-anos-do-inpi-e-lancamento-da-estrategia-nacional-de-propriedade-intelectual/EstratgiaNacionaldePropriedadeIntelectual.pdf ENPI]) and the National Policy of Innovation.

Pursuant to the Brazilian Artificial Intelligence Strategy, Brazil is working on specific legislation for AI. An initial draft AI Act was introduced in Brazil’s lower legislative chamber (the Chamber of Deputies) in 2020 (PL 21/2020), and was subsequently sent to the upper chamber (the Senate). The Senate convened a committee of experts to hold public hearings and collect public comments, the Comissão de Juristas responsável por subsidiar elaboração de substitutivo sobre inteligência artificial no Brasil ([https://legis.senado.leg.br/atividade/comissoes/comissao/2504/ source]). Other relevant draft laws were also pending in the Senate, so the Senate issued an order to combine, restructure and improve the text of these proposed laws pending input from the Committee. The Committee held meetings in 2022 and issued a final report in December 2022 with proposed changes to text. According to a press release from August 2024, the Senate is still reviewing draft AI legislation. A new draft text incorporating the recommended language from the committee of experts has been assigned bill number PL 2338/23, and it is this bill that appears to be moving forward in the Senate. The Chamber of Deputies’ original draft text PL 21/2020 has not moved forward; several other draft laws that relate to AI are also pending in the Senate. The Senate now has another commission debating the draft AI Act, which is continuing to meet regularly ([https://legis.senado.leg.br/atividade/comissoes/comissao/2629/ source]). Thus, it appears Brazil is getting closer to finalizing the draft legislation.

==== Text and Data Mining in Brazil ====

With the AI legislation in Brazil not yet finalized, from a copyright perspective, Brazil law currently does not authorize text and data mining (TDM) without permission of the copyright holder. Although Brazil’s copyright act, Law No. 9.610 of February 19, 1998 (Law on Copyright and Neighboring Rights), does include some exceptions to the exclusive rights of a copyright holder, none of these exceptions (in Articles 46, 47, and 48 of ) address text and data mining. [source: https://www.wipo.int/wipolex/en/legislation/details/514]. Thus, the work that Brazil’s Senate is doing on the draft AI will be important to regulate text and data mining activities when the law is finalized and approved.

The most recent and active draft AI Act in Brazil, PL 2338/23, includes the following definition of text and data mining:

\Art. 4. For the purposes of this Law, the following definitions are adopted:

[…] VIII – text and data mining: process of extracting and analyzing large amounts of data or partial or full excerpts of textual content, from which patterns and correlations are extracted that will generate relevant information for the development or use of artificial intelligence systems.

The draft law would regulate text and data mining as follows:

Art. 42. The automated use of works, such as extraction, reproduction, storage and transformation, in data and text mining processes in artificial intelligence systems, in activities carried out by research organizations and institutions, journalism and museums, archives and libraries, does not constitute an offense to copyright, provided that:
I – it does not have as its objective the simple reproduction, exhibition or dissemination of the original work itself;
II – the use occurs to the extent necessary for the objective to be achieved;
III – it does not unjustifiably harm the economic interests of the owners; and
IV – it does not compete with the normal exploitation of the works.

§ 1. Any reproductions of works for data mining activities will be kept under strict security conditions, and only for the time necessary to carry out the activity or for the specific purpose of verifying the results of scientific research.

§ 2. The provisions of the caput shall apply to the activity of data and text mining for other analytical activities in artificial intelligence systems, provided that the conditions of the items of the caput and § 1 are met, provided that the activities do not communicate the work to the public and that access to the works has been legitimate.
§ 3. The activity of text and data mining involving personal data shall be subject to the provisions of Law No. 13,709, of August 14, 2018 (General Personal Data Protection Law) ([https://wolterskluwerblogs.com/copyright/wp-content/uploads/sites/49/2023/01/ARQUIVO_PORTAL_CJSUBIA_7430ComissaoESPComissaoCJSUBIA20221206-4.pdf source]) ([https://wolterskluwerblogs.com/copyright/wp-content/uploads/sites/49/2023/01/ARQUIVO_PORTAL_CJSUBIA_7430ComissaoESPComissaoCJSUBIA20221206-4.pdf source]).

As noted above, this is only a draft legislation, and this could change as the draft bill is debated further in Brazil’s congress.

The draft TDM definition and exception are notable in being fairly aligned with other jurisdictions such as the European Union. Brazil’s draft definition of TDM goes so far as to stipulate that “large amounts of data or partial or full excerpts of textual content” will be permitted to be mined, which suggests even in this definition the intent to provide an exception from the existing copyright regime. The definition also limits this use to the purpose of “development or use of artificial intelligence systems.” Arguably, this language ensures that the exception will be limited to the AI field. The inclusion of TDM when AI systems are in “use” is an interesting addition, since it suggests that TDM might be permissible not only for the training stage, but also when AI is deployed.

Like other jurisdictions such as the EU, Brazil’s draft TDM exception at Article 42 provides for use of works by research organizations and cultural institutions, namely, museums, archives, and libraries. However, it also notably allows an exception for journalism, along with the scientific and cultural uses. It is also notable that draft Article 42 includes a requirement that any use of the TDM exception “does not unjustifiably harm the economic interests of the owners” or compete with or replace the original works. Like the EU, subsection (42)(1) requires security conditions and limits the time for keeping the works.

Draft section 42(2) appears to provide a broader TDM exception that is not limited to scientific research, journalism, or cultural institutions, with additional requirements that entities using 42(2) must also not communicate the work to the public and must have had legitimate access to the works in the first place. This would seem to suggest that scraping is not allowed under draft section 42(2), but possibly is allowed for scientific research, journalistic purposes, or cultural purposes. Notably, this draft broad TDM exception in 42(2) does not include any kind of mechanism for rights holders who do not wish their works to be used in TDM activities to opt-out.

Finally, draft subsection 42(3) states that Brazil’s general data privacy law does apply to TDM activities. Thus, if this proposed language becomes law, entities using the TDM exception will still have to consider data privacy.

=== China ===
We have not identified a definition of ‘text and data mining’ in Chinese legislation or policy, so we have relied on the definition from Directive (EU) 2019/790:''‘text and data mining’ means any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations. ''This definition exists with a European Union (EU) law regarding exceptions and limitations of copyright for text and data mining. Consequently, to consider the Chinese position regarding text and data mining, we turn first to frame the copyright regime in China. 
==== Copyright Law of the People’s Republic of China (CLC) ====
Copyright Law of the People’s Republic of China in an administrative regulation enacted in 1951 and last revised in 2021. The Copyright Law aims to protect the copyright of authors in their literacy, artistic and scientific works and the copyright-related rights and interests, of encouraging the creation and dissemination of works which could contribute to the construction of socialist spiritual and material civilization, and of promoting the development and prosperity of the socialist culture and science. It applies to:
*works of chinese citizens, legal entities or other organizations, whether published or not
*work of a foreign or stateless person which is eligible to enjoy copyright 

**under an agreement concluded between the country to which the foreign belongs and China 
**international agreement
*works of foreign or stateless persons first published in the territory of China

==== Fair Use Doctrine ====
China is a civil law country which adheres to early continental European traditions, following the concept of the European droit d’auteur system. The structure of China’s copyright exception model can be considered as a closed list rather than an open-ended one (e.g U.S).Specifically, Article 22 of the Chinese Copyright Law, the so-called fair use clause, lists 13 situations in which the use of copyright material constitutes permitted fair use, but it is difficult to categorize the use of copyright materials for AI training within these scenarios. Nevertheless, the [http://lawinfochina.com/display.aspx?id=9280&lib=law Chinese Supreme People’s Court judicial policy document] offers some flexibility in applying the fair use doctrine under special circumstances. It states that: ''‘Under special circumstances as necessary for promoting technological innovation and business development, a use of works may be determined as reasonable after consideration of the nature and purposes of use, the nature of works used, the quantity and quality of the part of works used, impacts of use on potential markets or values, and other factors, provided that such use neither contravenes the normal use of the works nor results in unreasonable damage to the lawful interests of the author.’ ''Additionally, the [https://www.wipo.int/wipolex/en/legislation/details/13428 Regulations for the Implementation of the CLC] (RICL) provides an in-depth examination of Article 22 CLC. According to Article 21 RICL ‘the exploitation of a published work which may be exploited without permission from the copyright owner in accordance with the relevant provisions of the Copyright Law shall not impair the normal exploitation of the work concerned, nor unreasonably prejudice the legitimate interests of the copyright owner. Thus, this two-step test serves as a complement to the listed exceptions in Article 22 CLC: the extent of exempted uses should not violate the two step test of Article 21 RICL. With the law being last revised in 2021, text and data mining is not specifically referenced as an exception to copyright. Nevertheless, a few of the listed exceptions may concern text or data mining used for AI training.'''Fair use exceptions'''Article 22(1) CLC provides that ‘use of a published work for the purposes of the user’s own private study, research or self-entertainment’ can be exempted. However, this example will not offer much safeguards as most AI users are corporations and the research they carry out cannot be deemed as private. Article 22(6) CLC provides that ‘translation, adaptation, compilation, playing, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research of schools, provided that the translation or reproduction shall not be published or distributed’ can be exempted and may cover text and data mining. Still, the term ‘schools’ excludes commercial educational institutions and the commercial activities conducted by non-commercial institutions. Moreover, even if research institutions such as public universities may be covered by this exception, it is also required that the reproduction of published work shall be kept in ‘small quantity’. Thus, it is not a welcomed limitation for text and data mining that may require huge amounts of copyright data. Finally,  it could be a reasonably arguable position that Article 22, paragraph 7 may empower the State to engage in text and data mining, provided the State:
*mentions the name of the author and the title of the work; for example, in a list referencing all the works that were subject to the mining; and 
*the mining is by a State organ fulfilling official duties.  

{|
|-
| Article 22, paragraph 7, paraphrased: A work may be exploited without permission from, and without payment of remuneration to, the copyright owner, if the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not prejudiced, in the circumstance of a State organ using a published work, within proper scope, for the purpose of fulfilling its official duties.
|}

==== Amendments to the Law ====
===== Regulation for Generative Artificial Intelligence Services =====
On April 11th 2023, the Cyberspace Administration of China released a draft of the [https://www.china-briefing.com/news/how-to-interpret-chinas-first-effort-to-regulate-generative-ai-measures/ Regulation for Generative Artificial Intelligence Services], in force since August 2023. It includes 21 measures encompassing a wide array of subjects pertaining to the development and provision of Generative AI services. The regulation applies to ‘only applicable to services accessible to the general public within China’. It excludes from its scope AI services developed and utilized by enterprises, research and academics, research and academics institutions, and other public entities ([https://www.cac.gov.cn/2023-04/11/c_1682854275475410.htm Article 2]). Generative AI technologies are defined as models and related technologies that can generate contents in the form of texts, pictures, audios and videos (Article 22). '''Requirements for training data (article 7-8)'''The Generative AI Measures require service provides to source data and foundation models from legitimate sources, respect the intellectual property rights of users, and process personal information with appropriate consent or legal basis under Chinese Laws. Providers must enhance the quality of training data, striving for ‘authenticity, accuracy, objectivity, and diversity’(article 7). Thus, the Regulation places significant emphasis on safeguarding personal data and information by imposing on providers the obligation to protect the input information of users and usage records during the service provision process. During the development phase, providers must establish ‘clear, specific and practical’ labeling rules for the training data. Conducting quality assessment of data labeling and sample verification to ensure accuracy of labeled content is also required (article 8). Additionally, illegal retention of input information that can be used to infer user identities, creation of user profiles based on input information usage, and disclosure of user input information to third parties are prohibited (Article 11). 
===== AI security governance framework =====
On 10 September 2024, the State Council of China [https://english.www.gov.cn/news/202409/10/content_WS66df9f30c6d0868f4e8eac91.html published] an AI security governance framework, to come into effect on 1 January 2025. The [https://www.tc260.org.cn/upload/2024-09-09/1725849192841090989.pdf Framework] was put together by China's National Technical Committee 260 on Cybersecurity and seeks to promote responsible AI innovation. Although this framework is not a piece of legislation, compliance is [https://www.onetrust.com/blog/chinas-tc260-releases-ai-safety-governance-framework/ suggested] to be mandatory. [https://www.onetrust.com/blog/chinas-tc260-releases-ai-safety-governance-framework/ Onetrust] identifies key areas of the framework as: 
*Risk management and transparency 
*Ethical responsibilities
*Accountability mechanisms
*Cross-border data, security, and privacy considerations
 Relevant for consideration of copyright and text and data mining exceptions are: 
*requirements for data integrity, 
*recordkeeping obligations for data sources, 
*systems that comply with China’s Data Security Law and Personal Information Protection Law 
 The Safety Guidelines of the Framework are significant and wide reaching. The relevant guidelines for training AI models apply to developers. Developers of AI models [https://www.tc260.org.cn/upload/2024-09-09/1725849192841090989.pdf should] (see 6.1): <div>
{| style="height: 130px;"
|- style="height: 51px;"
| style="height: 51px; width: 512px;" |
*uphold a people-centered approach 
| style="height: 51px; width: 454px;" |
*strengthen data security and personal information protection
|- style="height: 28px;"
| style="height: 28px; width: 512px;" |
*adhere to the principle of AI for good
| style="height: 28px; width: 454px;" |
*respect intellectual property and copyright
|- style="height: 51px;"
| style="height: 51px; width: 512px;" |
*follow science and technology ethics in key stages such as requirement analysis, project initiation, model design and development, and training data selection and use
| style="height: 51px; width: 454px;" |
*ensure that data sources are clear and acquisition methods are compliant
|}
</div>This framework also has a national security flavour, and seeks to ensure AI develops without bias or discriminatory results.  
===== Hong Kong Amendment of Copyright Ordinance =====
[https://techinsights.linklaters.com/post/102jf9o/hong-kong-proposes-new-copyright-exception-for-text-and-data-mining-to-facilitate The Hong Kong government] recently launched a two-month public [https://www.ipd.gov.hk/filemanager/ipd/en/share/consultation-papers/Eng-Copyright-and-AI-Consultation-Paper-20240708.pdf consultation] aimed at enhancing the Copyright Ordinance to address the challenges brought by AI technology. To maintain a balance of interests between copyright owners and users, the Copyright Ordinance contains a number of copyright exceptions that permit reasonable use of copyright works under specific circumstances. However, each exception is confined to certain situations and purposes and subject to their respective conditions and there is no specific copyright exception for text and data mining. The consultation focuses on four areas: 
*copyright protection of AI generated work
*copyright infringement liability for AI generated works 
*introduction to specific copyright exception for text and data mining activities 
*other issues e.g deepfakes 
The proposal defines [https://www.ipd.gov.hk/filemanager/ipd/en/share/consultation-papers/Eng-Copyright-and-AI-Consultation-Paper-20240708.pdf text and data mining] as ‘automated techniques to extract and conduct computational analysis of extensive collection of text, images, data and other types of information for generating valuable insights, patterns, trends and correlations that would likely be unattainable through manual efforts alone’.
==== Case law ====
===== Beijing Internet Court grants Copyright to AI-Generated Image =====
The [https://globallitigationnews.bakermckenzie.com/2024/05/08/china-a-landmark-court-ruling-on-copyright-protection-for-ai-generated-works/ first case] to address whether AI-generated work

:a) are protectable by copyright and

:b) who owns the copyright

was decided before the Beijing Internet Court in November 2023.'''Facts'''The plaintiff, Mr. Li, used Stable Diffusion (an artificial intelligence) to generate the image involved in the case and published it on the Xiaohongshu (Little Red Book) platform; the defendant, a blogger on Baijiahao, used the image generated by the plaintiff’s AI to accompany the article, and the plaintiff sued. '''Judgement'''First, the Court considered the meaning of ‘works’ under the Copyright Law of China, which provides that works must be original and reflect intellectual achievement. In terms of intellectual achievement, the Court noted that the plaintiff did not merely use existing pictures returned by search engines or rearranged pre-designed elements when creating the picture. Instead, the plaintiff designed how the woman should look in the picture and entered the relevant prompts. The plaintiff then inputted detailed prompts such as ‘japan idol’, ‘cool pose’, ‘viewing at camera’ and ‘film grain’, and then further adjusted the prompts based on the preliminary images generated by Stable Diffusion. According to the court, these actions demonstrates the plaintiff's intellectual input. Regarding the concept of originality, the court notes that this means that the work should be independently completed by the author and that should reflect the author’s subjective expression. In the context of AI-generated images, originality should be assessed on a case-by-case basis. In this case, the plaintiff designed the different elements of the image by inputting and fine-tuning the prompts and adjusting the parameters, which ultimately demonstrates the plaintiff's original judgment. Thus, the Court held that the picture is protected by copyright as an original work. It recognized the picture as a ‘work of fine arts’ under Article 3 CLC. Secondly, on the matter of copyright ownership, [https://english.bjinternetcourt.gov.cn/2023-12/28/c_688.htm the Court held] that Copyright Law provides that copyright shall be owned by the author of the work and an AI model cannot be an author because it is not a natural or legal person. Moreover, the designer of Stable Diffusion only created the AI model, it was not involved in the intellectual input leading to the creation of the picture and the licensing agreements states that the designer of Stable Diffusion does not claim rights in any output content. 
===== Pending Case to address whether AI Training constitute Copyright Infringement =====
In China, the [https://www.managingip.com/article/2dnu9r92bmzrcdrw84ykg/sponsored-content/training-ai-models-and-copyright-challenges-chinese-and-eu-insights first case] to address whether AI training constitutes copyright infringement is pending before the Beijing Internet Court.The case was brought by four Chinese illustrators against the developers of Trik AI, a generative AI painting app released by the famous Chinese lifestyle platform Xiaohongshu, with a particular strength in generating traditional Chinese-style paintings. The illustrators claimed, among others, that Xiaohongshu’s use of their work to train its AI model constituted an infringement of their reproduction rights. Xiaohongshu, on the other hand, contends that using the plaintiffs’ works for AI training should be considered "fair use" under Article 24 of the Chinese Copyright Law. A judgment in this case has not yet been issued.From a technical perspective, establishing copyright infringement in China depends on whether the AI model has made a ‘temporary’ or ‘permanent’ reproduction of a copyrighted work during the training process. Under the Chinese Copyright Law, the general rule is that it is only when a permanent copy is made that copyright infringement occurs.

=== India ===
[https://pib.gov.in/PressReleasePage.aspx?PRID=2004715 The Indian Ministry of Commerce and Industry] has stated that India’s existing regime of intellectual property rights (IPR) and copyright is sufficient to protect both rights holders of AI-generated works, and rights holders of content that may be used by Generative AI (e.g., training data). Consequently, the Ministry states there is no reason nor need to develop an additional regime specifically regulating AI and related innovations. As a result, there is no specific regulation to discuss relating to training data and scraping, also known as text and data mining (TDM), for AI training purposes. This paper thus focuses on aspects of the current regulatory regime that are relevant to the question of AI training data, and discusses potential limitations and criticisms of the reliance on the current regime. 

 Important to note is that India also lacks regulation regarding AI generally, not just lacking regulation regarding TDM either generally or for the purposes of AI training. Despite this, the government has addressed the growing challenge of AI through publishing the [https://www.niti.gov.in/sites/default/files/2023-03/National-Strategy-for-Artificial-Intelligence.pdf National Strategy for Artificial Intelligence] which highlights numerous legal and societal challenges arising from AI. This Strategy does not explicitly mention copyright or legal issues arising from TDM, but highlights privacy problems that may be relevant for TDM for training as part of the AI lifecycle. [https://pib.gov.in/PressReleasePage.aspx?PRID=2004715 The Indian Ministry of Commerce and Industry brings attention] to a few specific aspects of the current IPR regime. Exclusive economic rights of a copyright owner are provided by the Copyright Act 1957. For generative AI to make use of copyrighted material under this act, the use must be covered under fair dealing exceptions in Section 52 of the Copyright Act 1957. Additionally, India’s personal data regulatory framework may be a relevant consideration for TDM.
==== 1.1 The Copyright Act 1957 ====
 [https://www.copyright.gov.in/Documents/Copyrightrules1957.pdf The Copyright Act 1957] is India’s main regulatory instrument regarding intellectual property and copyright. Section 13 of the Copyright Act 1957 highlights which works are provided copyright protections, which include (1) original literary, dramatic, musical and artistic works, (2) cinematographic films, and (3) sound recordings. Section 14 expounds on actions that are prohibited to take against copyrighted works. Most relevant is the mention of the prohibitions of “the storing of [the copyrighted work] in any medium by electronic or other means” (emphasis added). This is applicable for the cases of a literary, dramatic, or musical work, a computer programme, an artistic work, and cinematographic films, covering all types of works mentioned in the Copyright Act 1957.
===== 1.1.1 Infringement of Copyright and Fair Dealing Exceptions =====
 Chapter XI Copyright Act 1957 addresses infringements of copyright. Section 51 outlines when copyright will be deemed infringed, which includes when anything is done which is the exclusive right of the copyright holder (Section 51(a)(i)), and other distributions of the copyrighted work, including when it is “to such an extent to affect prejudicially the owner of the copyright” (Section 51(b)(ii)).

 Section 52 outlines when certain acts are not considered an infringement of copyright, commonly known as fair dealing exceptions. Section 52(a)  excludes from infringement “a fair dealing with any work, not being a computer programme,” for the purposes of either “(i) private or personal use; including research; (ii) criticism or review [...]; [and] (iii) the reporting of current events and current affairs.” An accompanying explanation states that the storing of any copyrighted work in an electronic medium for the aforementioned purposes shall not constitute an infringement. Section 52(aa) (sic) excludes from infringements the certain actions towards copyrighted computer programmes, such as when a lawful possessor of a copy makes copies of the programme for certain purposes (Section aa(i)-(ii) (ab), (ac), (ad), …). Section 52 is expansive and outlines numerous other exceptions.
===== 1.1.2 Application of the CRA 1957 to TDM =====
Generally, the Copyright Act 1957 is vague. The fair dealing exceptions in Section 52 are strict and lack any specific reference to TDM or more generally to the use of copyrighted information to develop a product as such. The Copyright Act 1957 does reference electronic storage and recent technological changes such as, for example, listing the circumvention of “an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act” (Section 65A) as an offence. However, such mentions are limited and still revolve around the (illegal) act of creating a copy of a copyrighted work. Much of the Copyright Act 1957 is focused on the illegal replication of works.

 The Copyright Act’s particular focus has resulted in scholarly opinion that the Act would actually not prohibit TDM despite a lack of explicit fair dealing exception. Dr. Arul George Scaria, Co-Director of the [https://ciipc.org/ Centre for Innovation, Intellectual Property, and Competition (CIIPC) at National Law University in Delhi], has argued for the legality of TDM under Indian copyright law. He [https://spicyip.com/2019/08/should-indian-copyright-law-prevent-text-and-data-mining.html argues that Indian copyright law] only protects the expression of ideas, not facts or ideas themselves. So, when a researcher, for example, uses a copyrighted article in the course of TDM, this should be considered a non-expressive use of the work outside of copyright protection. He goes so far as to argue that it is thus “morally and legally impermissible to allow publishers to use End User Licence Agreements or other contractual tools to restrict researchers from using articles for TDM.” 

Additionally, Dr. Scaria emphasises that India’s copyright regime privileges not only the rights of the creators or copyright holders, but also the users of such works. He references the[https://indiankanoon.org/doc/135895592/ Delhi University Photocopy Shop (Single Bench)] decision, wherein Justice Endlaw states that the rights of persons in Section 52, the fair dealing exception, should not be interpreted narrowly or strictly. The rights given to users should be interpreted on par with those given to creators. Lastly, Dr. Scaria argues that India’s fair dealing regime can provide the flexibility to apply to newer technological developments such as TDM. Whilst Dr. Scaria makes a compelling argument, part of that compelling argument derives from his discussion of TDM as done by researchers, rather than addressing, for example, the use of TDM to train AI for ultimately commercial purposes.

Another case did address TDM for another use, by the state. Whilst this does not explicitly address the use of TDM to train AI, it still provides perspective on how TDM might be understood in the context of India’s regulatory framework. The Supreme Court of India, in the case of [https://indiankanoon.org/doc/127517806/ Justice K.S. Puttaswamy (Retired) vs Union of India and Ors.], recognised TDM’s importance for the state. The Court held that “[TDM] with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data.” However, this case addressed TDM primarily from a privacy law perspective, rather than copyright; consequently, there still is no litigation that addresses the TDM in a copyright context. This raises further concerns considering the lack of explicit inclusion of a TDM fair dealing exception in Section 52 of the Copyright Act 1957.

As a result, the [https://spicyip.com/2020/06/crawl-cautiously-examining-the-legal-landscape-for-text-and-data-mining-in-india-part-i.html likely means of justifying TDM is through Section 52(1)(a) ]which allows for private and personal use of copyrighted works, including for research. This provision is nuanced, wherein the making of copyrighted works publicly available to facilitate private and personal use such as by public libraries could be justified. However, the [https://spicyip.com/2020/06/crawl-cautiously-examining-the-legal-landscape-for-text-and-data-mining-in-india-part-i.html Calcutta High Court in 2013] stated that “commercial exploitation” does not fall under “private or personal use,” a position reaffirmed by the Bombay High Court in 2018. Thus, it seems that the main way in which TDM could be justified under India’s copyright regulation is through arguing that TDM does not infringe on the expression of the idea or data, and thus copyright does not apply, as argued by Dr. Scaria.
==== 1.2 Database protection ====
 A newer form of intellectual property rights relates to database protection, which may be relevant when it comes to TDM. India does not have an explicit database right in its intellectual property right regime, but it has recently been subsumed into its copyright regulatory framework. [https://link.springer.com/chapter/10.1007/978-981-10-3984-3_10 The Delhi High Court in Himalaya Drug Company v Sumit] ruled that compilations of databases could be considered literary works and consequently covered by the Copyright Act 1957. This would mean use of compilations of databases in TDM contexts would have to fall under fair dealing exceptions in Section 52 of the Copyright Act 1957. 
==== 1.3 Personal data mining ====
 Another problematic aspect of data mining is the use of [https://www.icsi.edu/media/webmodules/CSJ/june/18ArticleKanchanBhave.pdf personal data]. The source of data used for data mining can be essential, and if the data obtained is not public knowledge or obtained consensually, Indian personal protection legislation might apply. Companies and organizations that do not obtain personal data with permission or [https://www.icsi.edu/media/webmodules/CSJ/june/18ArticleKanchanBhave.pdf discriminate] against individuals based on age, sex, gender, race, or religion are not going to be compliant with local or transnational laws. Specifically in India, data mining in such circumstances is regulated by the [https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf Information Technology Act], 2000 (IT Act) (e.g Article 43A which outlines rules on unauthorized access, sensitive personal data, and information, as well as compensation for failure to protect data), and the [https://www.google.com/url?q=https://www.meity.gov.in/writereaddata/files/Digital%2520Personal%2520Data%2520Protection%2520Act%25202023.pdf&sa=D&source=docs&ust=1732737698777765&usg=AOvVaw0wY-MZ1iAH8P634ZfD2-Vf Personal Data Protection Bill, 2019 (PDP Bill)]. However, some scholars discuss that the production of Privacy Preserving Data Mining Techniques[https://www.researchgate.net/profile/Ahmad-Ahmad-79/publication/375343129_Psychological_Burden_of_Caregivers_of_Children_with_Cancer_at_AL-Amal_Hospital_in_Baghdad_City/links/65476ca9b86a1d521bb8fe8a/Psychological-Burden-of-Caregivers-of-Children-with-Cancer-at-AL-Amal-Hospital-in-Baghdad-City.pdf#page=410 could circumvent] regulation from data protection regulation. This approach is somewhat reflected in the [https://www.niti.gov.in/sites/default/files/2023-03/National-Strategy-for-Artificial-Intelligence.pdf National Strategy for Artificial Intelligence], wherein the Indian government recommends investing in privacy-preserving AI research methods to reduce the “risks of data exploitation and personal identification (from an anonymisation dataset).”

=== United States ===
=== 1. Text and data mining in the US ===
=== 1.1. Introduction TDM ===
Text- and data mining is a process used to develop AI models. Data is fed into a model and algorithms are applied to the data. The term TDM is not defined in US Law, but rather as "machine and human- based inputs” under Title 15 Commerce and Trade. Another reference can be found under Machine Learning, which mentions "the ability to automatically learn and improve on the basis of data or experience. 

=== 1.2. US definition AI ===
The legal definition of AI originates from the National Artificial Intelligence Initiative Act of 2020, which regulates public bodies' use of AI:
"a machine based system that can, for a given set of human-defined objectives, make predictions,  recommendations, or decisions influencing real or virtual environments. Artificial intelligence systems  use machine- and human-based inputs to perceive real and virtual environments; abstract such  perceptions into models through analysis in an automated manner; and use model inference to  formulate options for information or action.”,
The legal question is: do any restrictions apply to the use of input such as publicly available text or data in digital form for the purpose of training AI models?
To the extent that the input may be protected by copyright, the Copyright Act of 1976 is applicable.
To the extent that the input may be pertaining to data created by human behavior, other acts or constitutional rights may apply.
To the extent that the use of the data may be unfair or harmful to competition or consumer rights, FTC regulations may apply.

=== 1.3. Legal framework ===
==== 1.3.1. U.S. Constitution ====
Patent and Copyright Clause
(a.k.a. Patent Clause, the Copyright Clause, and the Progress Clause)
The Congress shall have Power ...to promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

==== 1.3.2. Federal Law ====
==== The Copyright Act of 1976 ====
The United States copyright law is contained in the United States Code, chapters 1 through 8 and 10 through 12 of Title 17. The Copyright Act of 1976, which provides the basic framework for the current copyright law.
The authority has been granted to the US Copyright Office since 1870. 
To the extent that “human-based input’ and data can be a product of human work, it may be protected under the constitutional clause which grants an exclusive right to the Author or Inventor.
Copyright protection is granted to original works of authorship that are fixed in a tangible medium of expression . The author of the work generally holds copyright ownership generally, a right which she may transfer or license their rights to others. 
Essential to the copyright protection in the US is the fair use doctrine, which allows for several exemptions for which limited use of copyrighted material is allowed without the author’s permission. 
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The legal discussion regarding TDM in the US is evolving essentially around the application of the exceptions under the legal doctrine of fair use.
Following the Executive Order  Executive Order 13859 announcing the American Artificial Intelligence Initiative, the United States Patent and Trademark Office (USPTO) released a report titled “Public Views on Artificial Intelligence and Intellectual Property Policy.” The report consults a wide variety of stakeholder views on the impact of artificial intelligence (AI) across the intellectual property (IP) landscape, including patent, trademark, copyright, and trade secret policy, as well as developing issues about database protection. 
In this report, the USPTO stated:‘ “The ingestion of copyrighted works for purposes of machine learning will almost by definition involve the reproduction of entire works or substantial portions thereof. Accordingly, whether this constitutes copyright infringement will generally be determined by considering the applicability of the fair use doctrine, an exception set forth in section 107 of the Copyright Act, 17 U.S.C. § 107. Fair use is applied on a case-by-case basis, requiring courts to weigh several statutory factors, and is highly fact-dependent.’  § 102).’
The report included the results of a poll among a broad array of public and private stakeholders. The report  showed that the existing legal framework lacks instruments to tackle the challenges of AI. While the majority found the existing U.S. intellectual property laws calibrated correctly to address the evolution of AI (copyright, trademarks, trade secrets, and data fields), some suggested a need for new classes of IP rights. Overall, many agreed that existing commercial law principles (e.g., contract law) might adequately fill any gaps left by IP law in the wake of advances in AI .

==== COPIED ACT bill proposal ====
July 11th 2024 the bipartisan bill was introduced in Congress.
Content Origin Protection and Integrity from Edited and Deepfaked Media Act of 2024
The bill proposal addresses the new IP issues with respect to content by requiring transparency and content provenance information in an aim to protect artistic content.
The intention to establish NIST standards for provenance information seems to open the possibility for remuneration for rights-holders. This would be aligned with the intent of the constitutional right in the Patent and Copyright Clause.

==== 1.3.3. Recent US Court cases regarding TDM ====
NEW YORK TIMES v. OPEN AI INC (2023)
The New York Times claimed that OpenAI and Microsoft, as creators of highly profitable generative AI models, did not give credit or remuneration to the New York Times despite relying on their works. The New York Times further alleges that this conduct not only infringes on their intellectual property rights but could also threaten their business model of providing news coverage, analysis and commentary on current events.
AUTHORS GUILD v. OPEN AI INC (2024)
17 authors argue that OpenAI should have first obtained their permission to use their copyrighted works and now seek a permanent injunction against OpenAI to prevent these alleged harms from reoccurring. The Authors Guild is also seeking damages for the lost opportunity to licence their works and asserts that OpenAI and Microsoft forced them into a position where they unknowingly aided their own market replacement. 

=== 1.4. Policy ===
Two executive orders have been released pertaining to the use of AI by public bodies.
Executive Order 14110 of October 30, 2023 Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence mentions data as understood in 1.1.
Regarding availability of data for training the Executive Order states:
(b) …This effort requires investments in AI-related education, training, development, research, and capacity, while simultaneously tackling novel intellectual property (IP) questions and other problems to protect inventors and creators.
(e) … The Federal Government will enforce existing consumer  protection laws and principles and enact appropriate safeguards against fraud, unintended bias,  discrimination, infringements on privacy, and other harms from AI. Such protections are especially important in critical fields like healthcare, financial services, education,  housing, law, and transportation, where mistakes by or misuse of AI could harm patients, cost  consumers or small businesses, or jeopardize safety or rights. At the same time, my Administration will  promote responsible uses of AI that protect consumers, raise the quality of goods and services, lower  their prices, or expand selection and availability.
(f) Americans’ privacy and civil liberties must be protected as AI continues advancing. Artificial Intelligence is making it easier to extract, re-identify, link, infer, and act on sensitive information about people’s identities, locations, habits, and desires. Artificial Intelligence’s capabilities in these areas can increase the risk that personal data could be exploited and exposed. To combat this risk, the Federal Government will ensure that the collection, use, and retention of data is lawful, is secure, and mitigates privacy and confidentiality risks. Agencies shall use available policy and technical tools, including privacy-enhancing technologies (PETs) where appropriate, to protect privacy and to combat the broader legal and societal risks—including the chilling of First Amendment rights—that result from the improper collection and use of people’s data. 
The Executive Order stipulates the need for  “tackling novel intellectual property (IP) question”, “enforce protection laws and principles”and “enact safeguards against harms from AI” as “AI is making it easier to extract …on sensitive information about people’s identities, locations, habits and desires.” The Executive order acknowledges the need for new policies to not only protects copyrights-holders in the context of AI, but also citizens as their behavioral data are being used to train AI-models.

=== 1.5. Enforcement ===
As stated in section 1.1., human-based data may be a broad term, the use of which may violate several laws and regulations.. A certain responsibility  to protect competition in the interest of consumers lies with the FTC. In the case of AI, it may be difficult to assess whether infringement of violations take place.
A special enforcement resolution  was issued by the FTC in November 2023,  “ directing use of compulsory process in a non-public investigation of products and services that use or are produced using artificial intelligence or that purport to detect the use of artificial intelligence”. The specific action enables the FTC to start investigations of possible use of AI in violation with Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 to detect unfair, deceptive, anticompetitive,  collusive, coercive, predatory, exploitative, or exclusionary acts or practices in or affecting commerce relating to products and services that use or are produced using artificial intelligence, including but not limited to, machine-based systems that can, for a given set of defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments, or that purport to use or detect the use of artificial intelligence.
The proposed bill COPIED act may be instrumental in enabling the AI market to become more transparent, for rights-holders to receive remuneration based on standardized provenance mechanisms.

Module 3: Content

2024-10-30T17:08:23Z

Grace Appleford: /* United States */

== Misinformation and Disinformation Online ==
[https://digital-strategy.ec.europa.eu/en/policies/online-disinformation Disinformation] is false or misleading content that is spread with an intention to deceive or secure economic or political gain, and which may cause public harm. [https://digital-strategy.ec.europa.eu/en/policies/online-disinformation Misinformation] is false or misleading content shared without harmful intent though the effects can be still harmful.
=== Brazil ===
=== China ===
=== India ===
=== United States ===
==== Definitions ====
According to the European Commission’s High Level Group (HLEG), [https://digital-strategy.ec.europa.eu/en/library/final-report-high-level-expert-group-fake-news-and-online-disinformation disinformation] is defined as ‘false, inaccurate, or misleading information, designed, presented and promoted to intentionally cause public harm or for profit’. [https://digital-strategy.ec.europa.eu/en/policies/online-disinformation Misinformation] is defined as ‘misleading or inaccurate information shared by the people who don’t recognize it as such’.In the U.S, clear definitions for "misinformation" and "disinformation" are not fully codified across all statutes. However, governmental agencies like the Cybersecurity and Infrastructure Security Agency (CISA) provide generally accepted definitions. [https://www.cisa.gov/topics/election-security/foreign-influence-operations-and-disinformation#:~:text=Disinformation%20is%20deliberately%20created%20to,mislead%2C%20harm%2C%20or%20manipulate Misinformation] is typically understood as false or inaccurate information shared without the intent to deceive. It occurs when incorrect information is spread inadvertently, often due to misunderstandings or mistakes, rather than a purposeful intent to mislead. [https://www.cisa.gov/topics/election-security/foreign-influence-operations-and-disinformation#:~:text=Disinformation%20is%20deliberately%20created%20to,mislead%2C%20harm%2C%20or%20manipulate Disinformation], by contrast, is false information deliberately crafted and disseminated with the intent to mislead, manipulate, or cause harm. Disinformation is frequently used in contexts involving political, social, or economic influence campaigns, such as [https://www.tandfonline.com/doi/full/10.1080/17577632.2024.2362483 election interference or propaganda efforts].
==== Freedom of Speech and Legal Protection ====
In [https://www.thefire.org/research-learn/john-stuart-mills-enduring-arguments-free-speech On Liberty], John Stuart Mill makes the case in favour of freedom of speech arguing that truth and ideas can only be achieved if both true and false statements and opinions are allowed to remain uncensored. Indeed, in the United States, false statements are often granted legal protection so as to protect other values and avoid a chilling effect on public discourse. As will be discussed below, the guarantee of free speech in the First Amendment also implements the values that underpin it, which include facilitating representative democracy and self-government, advancing knowledge and truth in the marketplace of ideas, promoting individual autonomy, self-expression and self-fulfilment.Under the First Amendment to the U.S. Constitution:
{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | ''Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.''
|}
As a general rule, the government may not regulate speech “because of its message, its ideas, its subject matter, or its content.” [Police Dep’t of Chicago v. Mosle, 408 U.S. 92, 95 (1972)].

The Congressional Research Service (CRS) published an In Focus [https://crsreports.congress.gov/product/pdf/IF/IF12180 report] in 2022 that says: 
*The Supreme Court has said the Free Speech Clause protects false speech when viewed as a broad category, but the government may restrict limited subcategories of false speech without violating the First Amendment.
*Defamation, fraud, political advertising, and broadcast speech are subject to special consideration. 

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | '''Case note: New York Times Co. v. Sullivan, 376 U.S. 254 (1964)'''
|-
| style="width: 100%;" | New York Times Co. v. Sullivan was a landmark U.S Supreme Court ruling on freedom of speech protections under the First Amendment to the U.S Constitution to restrict the ability of public officials to sue for defamation. The Court held that, in order to prove libel, a public official must show that what was said against them was made with actual malice – "that is, with knowledge that it was false or with reckless disregard for the truth."This imposes a high threshold as it only applies to defamatory speech against public officials and only if actual malice is shown.

The reasons are twofold. Protection of false speech is based on the concern of a chilling effect, where regulation of false speech would also chill true speech through fear of breaking the law. The Supreme Court has recognized that false statements may not add much value to the marketplace of ideas. Even so, there is a concern that by prohibiting false speech, the government would also “chill” more valuable speech, meaning it would cause people to self-censor out of fear of violating the law. Consequently, the First Amendment creates “breathing space” protecting the false statements and hyperbole that are “inevitable in free debate.” In the words of Justice Brennansaid: ‘even a false statement may be deemed to make a valuable contribution to a public debate’.
|}

==== Strict Scrutiny in Content-Based Legislation ====
As a general rule, if a US law targets speech based on its expressive content, that content-based regulation will trigger strict scrutiny analysis. Under strict scrutiny, a law is presumptively unconstitutional unless the government can show the challenged law is the least restrictive means of targeting speech while also serving a compelling governmental interest.  
{| class="wikitable" style="border-collapse: collapse; width: 100%; height: 46px;"
|- style="height: 23px;"
| style="width: 100%; height: 23px;" | '''Case note: United States v. Alvarez, 567 U.S. 709 (2012)''' 
|- style="height: 23px;"
| style="width: 100%; height: 23px;" |

In United States v. Alvarez, the U.S Supreme Court ruled that the Stolen Valor Act of 2005, a federal law prohibiting false statements about receiving military decorations or medals, was violating the First’s Amendment guarantee of the right to free speech.

The four-Justice plurality opinion clarified “that falsity alone may not suffice to bring the speech outside the First Amendment.” Thus, the plurality opinion applied strict scrutiny to the Stolen Valor Act as a content-based law.  Moreover, the Court held that the law was not sufficiently narrowly tailored because it punished false statements regardless of the context or purpose. Accordingly, there was no “direct causal link” showing the law’s broad scope was necessary to the government’s goal of protecting the integrity of the military honors system. 
|}

==== Election Speech ====
False, misleading, and intimidating speech has proliferated in both online and real world spaces, particularly as it relates to elections. Although the right to free speech is generally protected by the First Amendment, that right does not extend to saying anything, anywhere, in any manner. When governments identify efforts to intimidate, deter, or otherwise interfere with voters, the First Amendment allows them to safeguard the fundamental right of citizens to vote freely without fear, threat, or undue influence. Governments can also take steps to prevent, suppress, or remove false and misleading speech that seeks to disrupt the process of voting. 
{| class="wikitable" style="border-collapse: collapse; width: 100%; height: 122px;"
|- style="height: 76px;"
| style="width: 32.1782%; height: 76px;" | Are election related false statements Protected by the first Amendment?
| style="width: 67.8218%; height: 76px;" | Generally, yes, but [https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2024/08/Fact-Sheet-False-Misleading-and-Intimidating-Election-Information.pdf not if they interfere with the voting process]. The Constitution protects lies, especially if they are not under oath and can be easily countered (United States v. Alvarez). However, false statements can be regulated in contexts such as fraud, defamation, libel, statements to government officials, perjury, misrepresentation as a government official, and misleading advertising or commercial speech.
|- style="height: 23px;"
| style="width: 32.1782%; height: 23px;" | What types of false statements about elections can be constitutionally prohibited?
| style="width: 67.8218%; height: 23px;" | [https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2024/08/Fact-Sheet-False-Misleading-and-Intimidating-Election-Information.pdf Regulation allowed for misleading voting process information]: Governments can prohibit false or misleading speech about voting logistics, like when, where, or how to vote, to protect voter access (Minn. Voters All. v. Mansky). The government’s interest in protecting voting rights is emphasized, especially during election campaigns when false statements can have adverse public consequences (McIntyre v. Ohio Elections Comm’n).
|- style="height: 23px;"
| style="width: 32.1782%; height: 23px;" | Can the government regulate other types of election-related speech?
| style="width: 67.8218%; height: 23px;" | Yes, [https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2024/08/Fact-Sheet-False-Misleading-and-Intimidating-Election-Information.pdf when necessary to protect voting integrity]. The Supreme Court has recognized that government has compelling interests in protecting voters “from confusion and undue influence,”and in “preserving the integrity of its election process” [Burson v. Freeman].  “Preventing voter intimidation and election fraud” is “necessary,” and “ensuring that every vote is cast freely, without intimidation or undue influence, is  a valid and important state interest” [Brnovich v. Democratic Nat’l Comm.]  Thus, where it is necessary to regulate speech about elections—a content-based category of speech that is subject to strict scrutiny—the government can take steps that are the least restrictive means necessary to protect this compelling interest.
|}
{| class="wikitable" style="border-collapse: collapse; width: 100%; height: 276px;"
|- style="height: 23px;"
| style="width: 100%; height: 23px;" | '''Case note: Social Media Influencer Sentenced for Election Interference in 2016 Presidential Race'''
|- style="height: 253px;"
| style="width: 100%; height: 253px;" | In a recent case, the [https://www.justice.gov/opa/pr/social-media-influencer-sentenced-election-interference-2016-presidential-race Department of Justice] successfully prosecuted a social media influencer who made online posts ahead of the 2016 election to “disseminate fraudulent messages that encouraged supporters of presidential candidate Hillary Clinton to ‘vote’ via text message or social media, which was legally invalid”.  Although the defendant challenged his prosecution by claiming that his deceptive posts were “political speech,” a federal court found that his speech was “merely a single element within a course of criminal conduct”—namely, a conspiracy to interfere with the right to vote [[https://harvardlawreview.org/print/vol-137/united-states-v-mackey/ United States v. Mackey]]. Accordingly, the speech was “integral to criminal conduct” and thus unprotected by the First Amendment. The court also found that intentionally false speech about voting procedures did not fall within the core of political speech and that it could be regulated by the government where it did not address the substance of what was on the ballot but instead dealt with access to the ballot. Thus, speech that harms the integrity of the election process—such as misinformation about where, when, or how to vote—can be regulated even where speech about a candidate or a candidate’s views, even if false, could not be.
|}
 
==== Role of Social Media Platforms ====
Recent events such as the Cambridge Analytics scandal or the allegations of Russian interference into the 2016 elections have shown how important online intermediaries and platforms are.Online intermediaries and social media platforms have a large amount of freedom when it comes to speech violations. [https://crsreports.congress.gov/product/pdf/R/R46751#:~:text=Section%20230%20of%20the%20Communications,users%20of%20interactive%20computer%20services. Section 230] of title 47 of the U.S. Code, part of a codification of the Communications Act of 1934 (Section 9 of the Communications Decency Act / Section 509 of the Telecommunications Act of 1996) has been interpreted to mean that operators of Internet services are not publishers (and thus not legally liable for the words of third parties who use their services).
*Section 230(c)(1): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
*Section 230 confers full immunity on ‘interactive computer services’, from liability for torts others commit on their websites or online forums, even if the provider fails to take action after receiving notice of the harmful or offensive content.
*Through the so-called Good Samaritan provision, this section also protects ISPs from liability for restricting access to certain material or giving others the technical means to restrict access to that material.

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | '''Case note: Murthy v Missouri, 603 U.S (2024)'''
|-
| style="width: 100%;" | In [https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf Murthy v. Missouri], the Supreme Court rejected a suit brought by two states and several social media users against Executive Branch officials and agencies, claiming that government officials’ contacts with social media companies about misinformation related to the COVID-19 pandemic and the 2020 election violated First Amendment guarantees against government censorship [Murthy v. Missouri].The Court emphasized that social media companies already had policies against misinformation and disinformation, which they enforced by “exercising their independent judgment” even after consulting with government officials as well as outside experts. The Court held that the plaintiffs lacked standing, in part because they could not “link past social media restrictions” imposed by the social media companies to the government officials’ communications in which they identified potential misleading and false speech. Most major social media companies have in place policies against election-related misinformation and disinformation. After Murthy, social media companies remain free to enforce these policies on their own platforms by exercising their own judgment and conferring with outside experts, including government officials who may reach out to alert them to potential false statements. Unless there is “evidence of continued pressure” from government officials to interfere with companies’ independent application of their content- moderation policies, companies are “free to enforce, or not enforce, those policies,” even if those decisions are informed by contacts with government actors.
|}

==== State Legislation ====
The federal government does not regulate false statement about the subject-matter of elections, but many states do. These laws impose liability for a number of different types of false claims.[https://medialaw.unc.edu/wp-content/uploads/2021/08/State-Regulation-of-Election-Related-Speech.08.04.2021.pdf Thirty-eight states] have statutes that directly target the content of election-related speech:
*Sixteen states have statutes that prohibit false statements about a candidate for public office. 
*Fourteen states have statutes that prohibit false statements about a ballot measure, proposal, referendum, or petition before the electorate. 
*Thirteen states have statutes that prohibit false statements about voting requirements or procedures.
* Eleven states have statutes that prohibit false statements about the source, authorization, or sponsorship of a political advertisement or about a speaker’s affiliation with an organization, candidate, or party. 
*Nine states have statutes that prohibit false statements that a candidate, party, or ballot measure has the endorsement or support of a person or organization. 
*Seven states have statutes that prohibit false statements about incumbency.
A number of states have false statement laws that explicitly apply to online actions and that can be applied to election deception.
*California law prohibits “political cyber-fraud,” which includes intentionally causing visitors to believe advocacy or information posted on a political website represents the views of candidate or someone in favor or opposed to a ballot measure, when it does not [Cal. Penal Code 18320-18323).
*[http://www.theguardian.com/technology/ng-interactive/2019/jun/22/the-rise-of-the-deepfake-and-the-threat-to-democracy Texas law] (and California law until 2022) prohibits distribution of election-related “deepfakes,” which use artificial intelligence to create highly realistic videos that appear to portray real people when they do not.

Module 2: Data

2024-10-08T10:21:17Z

Grace Appleford: /* 1. Introduction */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's [https://www.dataguidance.com/news/brazil-ministry-science-technology-and-innovations Artificial Intelligence Plan], which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the [https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf right to privacy] in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current [https://en.wikipedia.org/wiki/Federative_units_of_Brazil Constitution] dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
[http://www.jstor.org/stable/23045695 Constitutional law] in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian [https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/l13709.htm General Data Protection Law] (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian [https://www.dlapiperdataprotection.com/index.html?t=law&c=BR Internet Act]: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 
::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)
::Personal data means information regarding an identified or identifiable natural persons.  
::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).

 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 

 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The [https://lawsofbrazil.com/2024/09/24/brazils-data-protection-law/ data processing] must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.

== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A r[https://guides.library.harvard.edu/law/brazil#s-lg-page-section-8920877 egulation (in Brazil) traditionally offers additional detail or procedural information] relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find [https://lawsofbrazil.com/2024/09/22/brazils-international-data-transfer-regulations-how-do-they-compare-with-the-eus-gdpr/ a blog post ]dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 

=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:
I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; and
II - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 

== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a [https://iapp.org/news/a/brazil-s-new-regulation-on-international-data-transfers rigid model for SCCs,] drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).
Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | CLAUSE 2. Purpose
2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below.

*****Description of international data transfer:
*****Main purposes of the transfer:
*****Categories of personal data transferred:
*****Data storage period:
*****Other information:
(NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
<div>
{| style="font-size: 14.4px;"
|-
|
|}
Broadly, the template standard contractual clauses include detail about:</div>
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:20:44Z

Grace Appleford: /* Standard contractual clauses */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's [https://www.dataguidance.com/news/brazil-ministry-science-technology-and-innovations Artificial Intelligence Plan], which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>
{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>

{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the [https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf right to privacy] in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current [https://en.wikipedia.org/wiki/Federative_units_of_Brazil Constitution] dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
[http://www.jstor.org/stable/23045695 Constitutional law] in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian [https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/l13709.htm General Data Protection Law] (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian [https://www.dlapiperdataprotection.com/index.html?t=law&c=BR Internet Act]: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 
::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)
::Personal data means information regarding an identified or identifiable natural persons.  
::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).

 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 

 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The [https://lawsofbrazil.com/2024/09/24/brazils-data-protection-law/ data processing] must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.

== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A r[https://guides.library.harvard.edu/law/brazil#s-lg-page-section-8920877 egulation (in Brazil) traditionally offers additional detail or procedural information] relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find [https://lawsofbrazil.com/2024/09/22/brazils-international-data-transfer-regulations-how-do-they-compare-with-the-eus-gdpr/ a blog post ]dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 

=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:
I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; and
II - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 

== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a [https://iapp.org/news/a/brazil-s-new-regulation-on-international-data-transfers rigid model for SCCs,] drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).
Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | CLAUSE 2. Purpose
2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below.

*****Description of international data transfer:
*****Main purposes of the transfer:
*****Categories of personal data transferred:
*****Data storage period:
*****Other information:
(NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
<div>
{| style="font-size: 14.4px;"
|-
|
|}
Broadly, the template standard contractual clauses include detail about:</div>
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:19:31Z

Grace Appleford: /* 3.2 Adequacy decisions */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's [https://www.dataguidance.com/news/brazil-ministry-science-technology-and-innovations Artificial Intelligence Plan], which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>
{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>

{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the [https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf right to privacy] in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current [https://en.wikipedia.org/wiki/Federative_units_of_Brazil Constitution] dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
[http://www.jstor.org/stable/23045695 Constitutional law] in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian [https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/l13709.htm General Data Protection Law] (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian [https://www.dlapiperdataprotection.com/index.html?t=law&c=BR Internet Act]: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 
::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)
::Personal data means information regarding an identified or identifiable natural persons.  
::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).

 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 

 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The [https://lawsofbrazil.com/2024/09/24/brazils-data-protection-law/ data processing] must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.

== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A r[https://guides.library.harvard.edu/law/brazil#s-lg-page-section-8920877 egulation (in Brazil) traditionally offers additional detail or procedural information] relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find [https://lawsofbrazil.com/2024/09/22/brazils-international-data-transfer-regulations-how-do-they-compare-with-the-eus-gdpr/ a blog post ]dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 

=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:
I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; and
II - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 

== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a rigid model for SCCs, drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).

 Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

 <div>
{|
|-
| CLAUSE 2. Purpose 2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below. 
*Description of international data transfer:
 
*Main purposes of the transfer:
 
*Categories of personal data transferred:
 
*Data storage period:
 
*Other information:
 (NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
</div>

 Broadly, the template standard contractual clauses include detail about:
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:19:10Z

Grace Appleford: /* 2.3 Interaction of the Law and the Regulation */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's [https://www.dataguidance.com/news/brazil-ministry-science-technology-and-innovations Artificial Intelligence Plan], which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>
{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>

{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the [https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf right to privacy] in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current [https://en.wikipedia.org/wiki/Federative_units_of_Brazil Constitution] dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
[http://www.jstor.org/stable/23045695 Constitutional law] in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian [https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/l13709.htm General Data Protection Law] (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian [https://www.dlapiperdataprotection.com/index.html?t=law&c=BR Internet Act]: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 
::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)
::Personal data means information regarding an identified or identifiable natural persons.  
::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).

 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 

 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The [https://lawsofbrazil.com/2024/09/24/brazils-data-protection-law/ data processing] must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.

== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A r[https://guides.library.harvard.edu/law/brazil#s-lg-page-section-8920877 egulation (in Brazil) traditionally offers additional detail or procedural information] relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find a blog post dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 
=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; andII - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 
== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a rigid model for SCCs, drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).

 Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

 <div>
{|
|-
| CLAUSE 2. Purpose 2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below. 
*Description of international data transfer:
 
*Main purposes of the transfer:
 
*Categories of personal data transferred:
 
*Data storage period:
 
*Other information:
 (NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
</div>

 Broadly, the template standard contractual clauses include detail about:
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:18:37Z

Grace Appleford: /* 2.2 The General Data Protection Law (LGPD) */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's [https://www.dataguidance.com/news/brazil-ministry-science-technology-and-innovations Artificial Intelligence Plan], which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>
{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>

{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the [https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf right to privacy] in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current [https://en.wikipedia.org/wiki/Federative_units_of_Brazil Constitution] dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
[http://www.jstor.org/stable/23045695 Constitutional law] in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian [https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/l13709.htm General Data Protection Law] (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian [https://www.dlapiperdataprotection.com/index.html?t=law&c=BR Internet Act]: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 
::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)
::Personal data means information regarding an identified or identifiable natural persons.  
::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).

 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 

 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The [https://lawsofbrazil.com/2024/09/24/brazils-data-protection-law/ data processing] must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.

== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A regulation (in Brazil) traditionally offers additional detail or procedural information relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find a blog post dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 
=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; andII - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 
== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a rigid model for SCCs, drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).

 Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

 <div>
{|
|-
| CLAUSE 2. Purpose 2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below. 
*Description of international data transfer:
 
*Main purposes of the transfer:
 
*Categories of personal data transferred:
 
*Data storage period:
 
*Other information:
 (NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
</div>

 Broadly, the template standard contractual clauses include detail about:
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:17:37Z

Grace Appleford: /* 1. Introduction */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's [https://www.dataguidance.com/news/brazil-ministry-science-technology-and-innovations Artificial Intelligence Plan], which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>
{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>

{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the [https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf right to privacy] in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current [https://en.wikipedia.org/wiki/Federative_units_of_Brazil Constitution] dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
[http://www.jstor.org/stable/23045695 Constitutional law] in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian General Data Protection Law (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian Internet Act: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope 
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 

::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)

::Personal data means information regarding an identified or identifiable natural persons.  

::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).
 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 
 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The data processing must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.
== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A regulation (in Brazil) traditionally offers additional detail or procedural information relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find a blog post dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 
=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; andII - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 
== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a rigid model for SCCs, drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).

 Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

 <div>
{|
|-
| CLAUSE 2. Purpose 2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below. 
*Description of international data transfer:
 
*Main purposes of the transfer:
 
*Categories of personal data transferred:
 
*Data storage period:
 
*Other information:
 (NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
</div>

 Broadly, the template standard contractual clauses include detail about:
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:17:07Z

Grace Appleford: /* 2.1 Constitutional / fundamental rights model */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's Artificial Intelligence Plan, which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the [https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf right to privacy] in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current [https://en.wikipedia.org/wiki/Federative_units_of_Brazil Constitution] dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
[http://www.jstor.org/stable/23045695 Constitutional law] in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian General Data Protection Law (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian Internet Act: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope 
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 

::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)

::Personal data means information regarding an identified or identifiable natural persons.  

::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).
 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 
 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The data processing must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.
== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A regulation (in Brazil) traditionally offers additional detail or procedural information relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find a blog post dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 
=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; andII - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 
== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a rigid model for SCCs, drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).

 Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

 <div>
{|
|-
| CLAUSE 2. Purpose 2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below. 
*Description of international data transfer:
 
*Main purposes of the transfer:
 
*Categories of personal data transferred:
 
*Data storage period:
 
*Other information:
 (NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
</div>

 Broadly, the template standard contractual clauses include detail about:
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:15:17Z

Grace Appleford: /* 2.1 Constitutional / fundamental rights model */

== Cross-border flows of personal data ==
Cross-border data flows refers to the transferring of personal data between servers across different country borders.
=== Brazil ===

= 1. Introduction =
Brazil is a signatory to the International Covenant on Civil and Political Rights, which grants the right to privacy under Article 17, as well as the American Convention on Human Rights, which assures the right to privacy in Article 11. 
Brazil has a specific International Data Transfer Regulation which was passed on 23 August 2024 (officially Resolution CD/ANPD No. 19 of August 23, 2024). This International Data Transfer Regulation contains procedures for adequacy decisions and template Standard Contractual Clauses (SCCs). Additional mechanisms for cross-border transfers are prescribed in the Regulation, as compared to the General Data Protection Law (LGPD) from 2018. 
Context for this 2024 Regulation is discussion of creating a "sovereign cloud" as part of Brazil's Artificial Intelligence Plan, which aims to ensure government data is stored within national borders, avoiding reliance on foreign infrastructure.
<div>

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>
{| style="height: 116px; width: 958px; margin-left: 25px;" width="962"
|- style="height: 109px; margin-left: 25px;"
| style="height: 109px; width: 956px; margin-left: 25px;" | Aside: What is Brazil’s AI Plan? 
On August 7, 2024, the Ministry of Science, Technology and Innovations published a proposal for the Brazilian Artificial Intelligence Plan 2024-2028. 
The plan provides for a total of BRL 23 billion (approx. € 3.8 billion) in investments in artificial intelligence (AI) in four years, aiming to promote human-centric, transparent, responsible, and fair AI.
|}</div>
|}
</div>
Before we jump into details of the new cross-border personal data flows regulation, the below first steps through Brazil’s regulatory framework. 

= 2. Broader data protection landscape =
We have not identified any laws that regulate cross-border data flows that apply to non-personal data, such as the EU’s Data Governance Act. We focus here on personal data. 
== 2.1 Constitutional / fundamental rights model ==
Brazil has a federal constitution from 1988 which enshrines the right to privacy in two ways: 
''Article X – personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured;'' 
''Article XII – the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable; except, in the latter case, by a court order, in the cases and as provided by law for the purposes of criminal investigation or finding of evidence in criminal proceedings.''
In 2022, the Constitution was amended to include a specific right to data protection: 
''Article LXXIX: the right to protection of personal data is ensured, including in digital media. ''

{| class="wikitable" style="border-collapse: collapse; width: 100%;"
|-
| style="width: 100%;" | <div>

{|
|-
| '''National context for Brazil:''' 
Brazil is a federation of 26 states. The current Constitution dates from 1988, giving effect to the “New Republic” that dates from 1985 and which replaces the autocratic 1967 constitution capping 21 years of military dictatorship. 
 Each state has its only legislative (unicameral) and judicial system. The federal system is overlaid on top, with the Federal Constitution being the supreme law.
 Constitutional law in Brazil is a hybrid system that combines:
*decentralised, incidental judicial review like in the United States; with
*centralised, abstract judicial review like in Germany and Italy.
|}</div>
|}

== 2.2 The General Data Protection Law (LGPD) ==
The Brazilian General Data Protection Law (LGPD) entered into force in September 2020 and is Brazil’s first  comprehensive data protection regulation. Before LGPD, data privacy regulations in Brazil consisted of various provisions spread across Brazilian legislation:
*Civil Code and consumer protection legislation 
*Brazilian Internet Act: imposed requirements regarding security and the processing of personal data and other obligations on service provides networks, applications providers and provided rights for internet users.  

=== Scope of Application ===
We have considered the scope of application in three ways: personal, material and territorial. 
*Personal Scope 
The LGDP applies to the processing of personal data by a natural person or legal entity (Article 1).

 
*Material Scope
The LGDP applies to any processing operation of personal data. 

::Processing means any operation performed with personal data, such as those regarding the collection, production, reception, classification, use, access, etc. (Article 5)

::Personal data means information regarding an identified or identifiable natural persons.  

::Excluded from the application of the LGDP is the processing of personal data by natural persons for purely private and non-economic purposes, or journalistic, artistic, or academic purposes (Article 11-12).

 
*Territorial scope
The LGDP applies to any processing operation carried out by a natural person or a legal entity irrespective of (1) the means used for the processing, (2) the country in which the headquarter is located or (3) the country where the data are located. Provided that: 
***the processing is carried out in Brazil
***the purpose of the processing activities is to offer or provide goods or services, or the processing of individuals located in Brazil or
***the personal data was collected in Brazil (Article 3-4).
 
=== Processing of Personal Data ===
Controllers and Processors (Articles 5, 37-40, 42-43) 
*A data controller is defined as the natural or legal person, whether public or private, which is responsible for decisions concerning the processing of personal data 
*A data processor is defined as the natural or legal person, whether public or private, which performs the processing of personal data on behalf of the controller 
 Principles: Processing of personal data in Brazil must be carried out in good faith and based on the following principles (Article 6):
*Purpose
*Suitability
*Necessity
*Free access
*Quality of the data
*Transparency
*Security
*Prevention
*Nondiscrimination, and
*Accountability.
Legal basis: The processing of personal data may only be carried out based on one of the following legal bases (Article 7) :
*With data subject’s consent
*To comply with a legal or regulatory obligation by the controller
*By the public administration, for the processing and shared use of data which are necessary for the execution of public policies provided in laws or regulations or contracts, agreements or similar instruments
*For carrying out studies by research entities, ensuring, whenever possible, the anonymization of personal data
*For the execution of a contract or preliminary procedures related to a contract to which the data subject is a party
*For the regular exercise of rights in judicial, administrative or arbitration procedures
*As necessary for the protection of life or physical safety of the data subject or a third party
*For the protection of health, exclusively, in a procedure carried out by health professionals, health services or sanitary authorities
*To fulfill the legitimate interests of the controller or a third party, except in the case of prevailing the fundamental rights and freedoms of the data subject, and
*For the protection of credit.
The data processing must be for legitimate, specific, explicit purposes, which must be informed to the owner. The process must also be compatible with the purposes and limited to the minimum necessary to fulfill its purposes.
== 2.3 Interaction of the Law and the Regulation ==
In Brazil, a “regulation” is subordinate law or secondary legislation, which means it sits below a “Law” or “Act”. A regulation (in Brazil) traditionally offers additional detail or procedural information relevant to a specific part of a law; hence the General Data Protection Law (LGDP) being supported by a more specific International Data Transfer Regulation (Regulation). 

 The Regulation provides additional detail and requirements of the processes and standards, complementing the superior Data Protection Law. The Regulation (IDTR): 
*establishes special requirements and guarantees for data exports; 
*defines the content of SCCs; 
*outlines the analysis process for specific contractual clauses and binding corporate rules; 
*specifies the adequacy decision assessment process for the data protection equivalence of foreign countries or international organizations;
*outlines procedures for the ANPD's recognition of equivalence for SCCs from other countries or international organizations, with an emphasis on prioritizing approval for widely applicable clauses; and
*proposes a template for SCCs.

= 3. Substantive detail of cross border data flows =
Two key features of the Brazilian system for cross-border data flows are adequacy decisions and contractual instruments. For example, cross-border flows are permitted when there is an adequacy decision (but there aren’t any yet) or a contractual instrument. 

 Chapter V of the LGPD addresses international data transfers, establishing a range of guarantees and safeguards designed to protect the rights of individuals whose data is being exported. In no hierarchy, there are various mechanisms that permit international data transfers. 
*transfers if the destination country maintains an adequate level of protection, as assessed by the ANPD.
*when the controller offers and proves guarantees of compliance with the principles and the rights of the data subject and the regime of data protection provided in the LGPD. These situations include: 

**controller’s specific contractual clauses for a given transfer; 
**standard contractual clauses (SCCs), prepared and approved by the ANPD establish minimum guarantees and valid conditions for carrying out an international data transfer; 
**binding corporate rules (BCR); or 
**seals, certificates and codes of conduct. 
 The LGPD allows international data transfers only under specific circumstances and through legally defined and independent mechanisms. However, many of these mechanisms were not fully outlined by the LGPD — including the framework for standard contractual clauses — preventing data controllers from effectively implementing them until the ANPD provided necessary guidelines.
== 3.1 When are data transfers allowed? ==
The transfer of personal data to other jurisdictions must comply with the requirements of the LGPD and may only occur in the following circumstances (Article 33): 
#The transfer is to countries or international organizations with an adequate level of protection of personal data
#There are adequate guarantees of compliance with the principles and rights of data subject provided by LGPD, in the form of

*Specific contractual clauses for a given transfer
*Standard contractual clauses
*Global corporate norms, or
*Regularly issued stamps, certificates and codes of conduct

#The transfer is necessary for international legal cooperation between public intelligence, investigative and prosecutorial agencies
#The transfer is necessary to protect the life or physical safety of the data subject or a third party
#The ANPD has provided authorization
#The transfer is subject to a commitment undertaken through international cooperation
#The transfer is necessary for the execution of a public policy or legal attribution of public service
#The transfer is necessary for compliance with a legal or regulatory obligation, execution of a contract or preliminary procedures related to a contract, or the regular exercise of rights in judicial, administrative or arbitration procedures.

== 3.2 Adequacy decisions ==
We have not identified any adequacy decisions from the ANDP. We did find a blog post dated 22 September 2024 that also indicates no adequacy decisions have yet been issued. 
=== How is the level of protection assessed for adequacy in the recipient country? ===
Considerations for the ANPD (DPA equivalent) when making an adequacy decision include: 
*I the general and sectoral rules of the legislation in force in the country of destination or in the international body;
*II - the nature of the data;
*III - compliance with the general principles of protection of personal data and rights of the holders provided for in this Law;
*IV - the adoption of security measures provided for in the regulation;
*V - the existence of judicial and institutional guarantees to respect personal data protection rights; and
*VI - other specific circumstances relating to the transfer (Article 34).
The new Regulation lists the same considerations for adequacy decisions and provides additional considerations in Articles 11 and 12 of the Regulation:I - the risks and benefits provided by the adequacy decision, considering, among other aspects, the guarantee of the principles, the rights of the holder and the data protection regime provided for in Law No. 13,709, of August 14, 2018; andII - the impacts of the decision on the international flow of data, diplomatic relations, international trade and Brazil's international cooperation with other countries and international organizations. 
== 3.3 Contractual measures ==
=== Standard contractual clauses ===
The ANPD (DPA equivalent) has introduced a rigid model for SCCs, drawing inspiration from frameworks in the EU, U.K., New Zealand and Singapore. Brazil's SCCs can be part of a stand-alone contract or attached to a broader agreement, provided they are adopted in full by the parties, with no modifications to the text (Article 15).

 Annex II of the Regulation provides template standard contractual clauses. For example, we have copied the below clause two (noting translation via Google Translate and not an official source). The standard contract clauses in Annex II of the Regulation also include drafting notes to assist with implementation in standard form contracts. 

 <div>
{|
|-
| CLAUSE 2. Purpose 2.1. These Clauses apply to International Data Transfers from the Exporter to the Importer, as described below. 
*Description of international data transfer:
 
*Main purposes of the transfer:
 
*Categories of personal data transferred:
 
*Data storage period:
 
*Other information:
 (NOTE: fill in as much detail as possible with information relating to the international transfer)
|}
</div>

 Broadly, the template standard contractual clauses include detail about:
*Transparency
*Data holder rights
*Additional protection of children's privacy and sensitive personal data 
*Reporting security incidents within 3 business days 
*Access requests (annex II IDTR).

=== Equivalent Standard Contractual Clauses ===
Notably, the ANPD may recognize the equivalence of foreign SCCs through a procedure initiated by the ANPD board or requested by any interested party (Article 18 IDTR). For the equivalent SCCs to take effect, the ANDP board must approve and publish them on the ANPD website, assessing compatibility with Brazil's SCCs, the Regulation and the Law.
=== Global Corporate Standards (or Binding Corporate Rules) ===
A global corporate standard constitutes a valid mechanism for international transfers of personal data only to organizations or countries covered by the global corporate standards (Article 25 Regulation).
*Global corporate standards are intended for international data transfers between organizations in the same group or conglomerate of companies, and are binding on the members of the group that subscribe to them (Article 25 IDTR).
*Global corporate standards must be linked to the implementation of a privacy governance program that meets the minimum conditions established in the General Data Protection Law (Article 26-27 IDTR).
*Global corporate standards must be submitted for approval by the ANPD (Article 28 IDTR).
 
== 3.4 Transparency Requirements ==
All contractual instruments (SCCs, equivalent SCCs, and global corporate standards) are subject to additional transparency measures, which impose two obligations on data controllers. 
#Upon the data subject's request, controllers have 15 days to provide the full text of the contractual instruments used for the transfer, excluding any trade secrets. 
#Controllers must also publish information on international data transfers in their privacy notice or another publicly accessible document on their website (Article 17 IDTR).
 These transparency requirements seek to uphold data subjects rights, according to the objectives of the Regulation, which include: “accountability and reporting, through the adoption of effective measures capable of proving observance and compliance with the principles of the rights of the holder and the personal data protection regime provided for in Law No. 13,709, of August 14, 2018 (being the LGPD), including the effectiveness of these measures” (Article 2(4) IDTR).
=== China ===
=== India ===
=== United States ===

Module 2: Data

2024-10-08T10:09:45Z

Grace Appleford: /* 2.1 Constitutional / fundamental rights model */

Module 2: Data

2024-10-08T10:08:32Z

Grace Appleford: /* Brazil */

Module 2: Data

2024-10-08T10:08:22Z

Grace Appleford: /* 1. Introduction */

Module 2: Data

2024-10-08T10:07:02Z

Grace Appleford: /* Brazil */

Module 1: Infrastructures

2024-09-25T16:08:16Z

Grace Appleford: /* Sources */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT).

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
: As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
: The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

:: * Article 9: Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
:: * Article 12: The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

: It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Hu, Henry L. “The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration.” The China Quarterly, Volume no. 207 (2011) 523–40. Available here: http://www.jstor.org/stable/41305255
* Pranavnayar 'The Legality of China’s Great Firewall: How Does the International Law Fare' Metacept 6 June 2021 <https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Christine M. Stover, ‘Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe’ [2010] Global Media Journal Volume 3(1) pp. 75-86
* Bernd Holzenagel, Xu Junqi and Thomas Hart, ‘Regulating Telecommunications in the EU and China: What Lessons to be Learned?’ Arbeitsberichte Zum Informations-, Telekommunikations- Und Medienrecht Volume 16 [2009]
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 [Winter 2002/2003]
* Becky P Y Loo, ‘Telecommunications reforms in China: Towards an analytical framework’ Telecommunications Policy 28 [2004] pp 679-714
* Report from US Embassy Beijing [2024] Available at: https://irp.fas.org/world/china/netreg.htm
* Zixiang Alex Tan, ‘Regulating China’s Internet: convergence toward a coherent regulatory regime’ Telecommunications Policy Volume 23, Issues 3-4, [1999] pp. 261-276
* Grace Wang, ‘Telecoms regulations in China’ Lexology [2022] Available at: https://www.lexology.com/library/detail.aspx?g=c8e8fd3d-4989-4db0-8887-45fd7a86f1a5
* Liyang Hou, ‘When competition law meets telecom regulation: the Chinese context’ Computer Law and Security Review 31(5) [2015]

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:56:29Z

Grace Appleford: /* Sources */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT).

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
: As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
: The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

:: * Article 9: Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
:: * Article 12: The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

: It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* Pranavnayar 'The Legality of China’s Great Firewall: How Does the International Law Fare' ''metacept'' 6 June 2021 <https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/>
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:47:11Z

Grace Appleford: /* The Telecommunications Regulations */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT).

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
: As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
: The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

:: * Article 9: Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
:: * Article 12: The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

: It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:43:54Z

Grace Appleford: /* Interconnecting networks */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT).

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
: As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
: The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

:: * Article 9: Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
:: * Article 12: The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

: It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:42:09Z

Grace Appleford: /* Cybersecurity Law */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
: As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
: The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

:: * Article 9: Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
:: * Article 12: The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

: It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:41:51Z

Grace Appleford: /* Licencing scheme */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
: As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:41:39Z

Grace Appleford: /* Telecoms Regulation in China */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:41:26Z

Grace Appleford: /* Telecoms Regulation in China */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
: The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

: In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:40:55Z

Grace Appleford: /* Interconnecting networks */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

: ====== ''Interconnecting networks'' ======
: Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
: In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:40:11Z

Grace Appleford: /* Sources */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

==== Sources ====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:40:02Z

Grace Appleford: /* Other related legislation */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

==== Other related legislation ====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

===== Sources =====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:39:43Z

Grace Appleford: /* The Telecommunications Regulations */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

==== The Telecommunications Regulations ====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

===== Sources =====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:38:21Z

Grace Appleford: /* China */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. Under this model, the government has control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling jurisdiction of internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘Great Firewall’, which is considered the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned companies dominate the ISP sector of the mobile market: China Mobile, China Telecom, and China Unicom. In 2019, British Telecom (BT) became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (such as from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the '''Telecommunications Regulation 2000'''. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references, also considered access requests; and
# ISPs implement filters that blocked Chinese websites, also called interconnecting networks.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

:: ''Primary telecoms regulator: Steering Committee on National Information Infrastructure''

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== ''Licencing scheme'' ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== ''Cybersecurity Law'' ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

===== Sources =====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:32:47Z

Grace Appleford: /* Other related legislation */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== Licencing scheme ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== Cybersecurity Law ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

===== Sources =====

The above information is based on our consideration of the Telecommunications Regulations, Cybersecurity Law and the following secondary sources:
* Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). ''Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP'' Passive and Active Measurement, 100–113, 101.
* Hu, Henry L. ''The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration'' The China Quarterly, no. 207 (2011): 523–40.
* https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/
* Ma, Xiao, Publication Review: Regulating Telecommunications in the EU and China: What Lessons to Be Learned? (May 24, 2015). Comms. L. 2009, 14(6), 198-199
* Martyn Taylor, ‘Reforming China’s telecommunications law: lessons from the Australian experience’, International Journal of Communications Law and Policy Issue 7 Winter 2002/2003
* Christine M. Stover, 'Network Neutrality: A Thematic Analysis of Policy Perspectives Across the Globe' (2010) ''Global Media Journal -- Canadian Edition'' (Volume 3, Issue 1), pp. 75-86
* Tan Zixiang (Alex),'Regulating China’s Internet: convergence toward a coherent regulatory regime', ''Telecommunications Policy'' Volume 23, Issues 3–4 (1999) pp 261-276.

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:27:14Z

Grace Appleford: /* Access networks */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet ➡ Interconnecting network ➡ Access Network ➡ Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== Licencing scheme ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== Cybersecurity Law ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:26:44Z

Grace Appleford: /* Access networks */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:

:: Global internet
➡
:: Interconnecting network
➡
:: Access Network
➡
:: Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== Licencing scheme ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== Cybersecurity Law ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:26:08Z

Grace Appleford: /* Access networks */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== ''Access networks'' ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== Licencing scheme ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== Cybersecurity Law ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:25:54Z

Grace Appleford: /* Interconnecting networks */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== ''Interconnecting networks'' ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== Access networks ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== Licencing scheme ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== Cybersecurity Law ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:25:04Z

Grace Appleford: /* Introduction */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== Interconnecting networks ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== Access networks ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== Licencing scheme ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== Cybersecurity Law ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:24:25Z

Grace Appleford: /* Access networks */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

==== Introduction ====
China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== Interconnecting networks ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== Access networks ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

===== The Telecommunications Regulations =====
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.

The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

====== Licencing scheme ======
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

====== Cybersecurity Law ======
The Cybersecurity Law (CSL) establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators. Other relevant obligations in the CSL are:

* Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
* Article 12. The State shall protect the rights of citizens, legal persons and other organisations to use networks in accordance with the law, promote improved network access, provide better network services, provide the public with secure and convenient network services, and guarantee the lawful, orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

===== Other related legislation =====
Other related legislation includes:
* State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
* The national intelligence law
* Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
* Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
* NPC Standing Committee - Law on Guarding State Secrets

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:20:48Z

Grace Appleford: /* Introduction */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

==== Introduction ====
China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

===== Policy Context =====
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT). Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector. During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom. The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom. During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect. Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures. With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.

The situation shifted in in 2001 with China admission to the WTO. Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers. This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

===== Net Neutrality in China and the Great Firewall =====
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.

The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.

The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.

Technologically, the Great Firewall is made up of two software’s:
# Last mile providers of internet services to consumers automatically filter suspicious references; and
# ISPs implement filters that blocked Chinese websites.

The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.

The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

==== Telecoms Regulation in China ====
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

: Primary telecoms regulator: Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
# interconnecting networks and
# access networks.

====== Interconnecting networks ======
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

====== Access networks ======
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles the below diagram:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

The Telecommunications Regulations
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.
The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1). The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.

Licencing scheme:
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

Cybersecurity Law (CSL)
The CSL establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators.

Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
Article 12. The State shall protect the rights of citizens, legal persons
and other organisations to use networks in accordance with the law, promote
improved network access, provide better network services, provide the public
with secure and convenient network services, and guarantee the lawful,
orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

Other related legislation includes:
State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
The national intelligence law
Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
NPC Standing Committee - Law on Guarding State Secrets

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:14:54Z

Grace Appleford: /* Description of the regulatory framework */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

== Introduction ==
China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content. China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

=== Policy Context ===
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (Article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization ('''WTO''') in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT).[3] Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector.[3] During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom.[4] The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom.[5] During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect.[6] Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures.[7] With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.[9]
The situation shifted in in 2001 with China admission to the World Trade Organization (WTO). Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers.[8] This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

Net Neutrality in China and the Great Firewall
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.
The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.
The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.
Technologically, the Great Firewall is made up of two software’s:
Last mile providers of internet services to consumers automatically filter suspicious references; and
ISPs implement filters that blocked Chinese websites.
The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.
The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

Telecoms Regulation in China
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

Primary telecoms regulator
Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
interconnecting networks and
access networks.

Interconnecting networks
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

Source: https://www.sciencedirect.com/science/article/pii/S0308596199000075?ref=cra_js_challenge&fr=RR-1

Access networks
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles the below diagram:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

The Telecommunications Regulations
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.[4]
The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1).[5] The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.[6]

Licencing scheme:
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

Cybersecurity Law (CSL)
The CSL establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators.

Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
Article 12. The State shall protect the rights of citizens, legal persons
and other organisations to use networks in accordance with the law, promote
improved network access, provide better network services, provide the public
with secure and convenient network services, and guarantee the lawful,
orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

Other related legislation includes:
State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
The national intelligence law
Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
NPC Standing Committee - Law on Guarding State Secrets

Sources:
The above information is based on the following secondary sources and review of the Cybersecurity Law.
Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP. Passive and Active Measurement, 100–113, 101. https://doi.org/10.1007/978-3-319-76481-8_8
Hu, Henry L. “The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration.” The China Quarterly, no. 207 (2011): 523–40. http://www.jstor.org/stable/41305255.
https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:13:37Z

Grace Appleford: /* China */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

== Description of the regulatory framework ==

Introduction
China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content.[1] China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

Policy Context
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.[2]

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization (WTO) in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT).[3] Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector.[3] During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom.[4] The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom.[5] During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect.[6] Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures.[7] With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.[9]
The situation shifted in in 2001 with China admission to the World Trade Organization (WTO). Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers.[8] This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

Net Neutrality in China and the Great Firewall
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.
The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.
The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.
Technologically, the Great Firewall is made up of two software’s:
Last mile providers of internet services to consumers automatically filter suspicious references; and
ISPs implement filters that blocked Chinese websites.
The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.
The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

Telecoms Regulation in China
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

Primary telecoms regulator
Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
interconnecting networks and
access networks.

Interconnecting networks
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

Source: https://www.sciencedirect.com/science/article/pii/S0308596199000075?ref=cra_js_challenge&fr=RR-1

Access networks
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles the below diagram:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

The Telecommunications Regulations
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.[4]
The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1).[5] The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.[6]

Licencing scheme:
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

Cybersecurity Law (CSL)
The CSL establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators.

Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
Article 12. The State shall protect the rights of citizens, legal persons
and other organisations to use networks in accordance with the law, promote
improved network access, provide better network services, provide the public
with secure and convenient network services, and guarantee the lawful,
orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

Other related legislation includes:
State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
The national intelligence law
Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
NPC Standing Committee - Law on Guarding State Secrets

Sources:
The above information is based on the following secondary sources and review of the Cybersecurity Law.
Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP. Passive and Active Measurement, 100–113, 101. https://doi.org/10.1007/978-3-319-76481-8_8
Hu, Henry L. “The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration.” The China Quarterly, no. 207 (2011): 523–40. http://www.jstor.org/stable/41305255.
https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:13:10Z

Grace Appleford: /* China */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

== Level 2 ==
Description of the regulatory framework

Introduction
China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content.[1] China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

Policy Context
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.[2]

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization (WTO) in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT).[3] Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector.[3] During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom.[4] The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom.[5] During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect.[6] Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures.[7] With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.[9]
The situation shifted in in 2001 with China admission to the World Trade Organization (WTO). Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers.[8] This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

Net Neutrality in China and the Great Firewall
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.
The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.
The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.
Technologically, the Great Firewall is made up of two software’s:
Last mile providers of internet services to consumers automatically filter suspicious references; and
ISPs implement filters that blocked Chinese websites.
The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.
The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

Telecoms Regulation in China
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

Primary telecoms regulator
Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
interconnecting networks and
access networks.

Interconnecting networks
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

Source: https://www.sciencedirect.com/science/article/pii/S0308596199000075?ref=cra_js_challenge&fr=RR-1

Access networks
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles the below diagram:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

The Telecommunications Regulations
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.[4]
The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1).[5] The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.[6]

Licencing scheme:
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

Cybersecurity Law (CSL)
The CSL establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators.

Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
Article 12. The State shall protect the rights of citizens, legal persons
and other organisations to use networks in accordance with the law, promote
improved network access, provide better network services, provide the public
with secure and convenient network services, and guarantee the lawful,
orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

Other related legislation includes:
State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
The national intelligence law
Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
NPC Standing Committee - Law on Guarding State Secrets

Sources:
The above information is based on the following secondary sources and review of the Cybersecurity Law.
Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP. Passive and Active Measurement, 100–113, 101. https://doi.org/10.1007/978-3-319-76481-8_8
Hu, Henry L. “The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration.” The China Quarterly, no. 207 (2011): 523–40. http://www.jstor.org/stable/41305255.
https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:12:58Z

Grace Appleford: /* China */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===

== Level 2 == Description of the regulatory framework

Introduction
China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content.[1] China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

Policy Context
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.[2]

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization (WTO) in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT).[3] Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector.[3] During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom.[4] The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom.[5] During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect.[6] Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures.[7] With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.[9]
The situation shifted in in 2001 with China admission to the World Trade Organization (WTO). Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers.[8] This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

Net Neutrality in China and the Great Firewall
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.
The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.
The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.
Technologically, the Great Firewall is made up of two software’s:
Last mile providers of internet services to consumers automatically filter suspicious references; and
ISPs implement filters that blocked Chinese websites.
The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.
The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

Telecoms Regulation in China
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

Primary telecoms regulator
Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
interconnecting networks and
access networks.

Interconnecting networks
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

Source: https://www.sciencedirect.com/science/article/pii/S0308596199000075?ref=cra_js_challenge&fr=RR-1

Access networks
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles the below diagram:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

The Telecommunications Regulations
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.[4]
The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1).[5] The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.[6]

Licencing scheme:
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

Cybersecurity Law (CSL)
The CSL establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators.

Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
Article 12. The State shall protect the rights of citizens, legal persons
and other organisations to use networks in accordance with the law, promote
improved network access, provide better network services, provide the public
with secure and convenient network services, and guarantee the lawful,
orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

Other related legislation includes:
State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
The national intelligence law
Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
NPC Standing Committee - Law on Guarding State Secrets

Sources:
The above information is based on the following secondary sources and review of the Cybersecurity Law.
Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP. Passive and Active Measurement, 100–113, 101. https://doi.org/10.1007/978-3-319-76481-8_8
Hu, Henry L. “The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration.” The China Quarterly, no. 207 (2011): 523–40. http://www.jstor.org/stable/41305255.
https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===

Module 1: Infrastructures

2024-09-25T15:10:35Z

Grace Appleford: /* China */

== Net Neutrality and Zero-ratings ==
[https://eur-lex.europa.eu/EN/legal-content/glossary/open-internet-and-net-neutrality.html#:~:text=Net%20neutrality%20is%20the%20principle,%2C%20blocking%2C%20throttling%20or%20prioritisation Net neutrality] is the principle that internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation. [https://www.berec.europa.eu/en/what-is-zero-rating Zero-rating] is a commercial practice whereby an internet access provider applies a zero tariff, or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.
=== Brazil ===
=== China ===
Description of the regulatory framework

Introduction
China follows a governmental control model for internet and telecommunications regulation. The government has complete control of all aspects of the internet, including who is allowed access, what content is accessible, and the rate of delivery of that content.[1] China can be considered as the most controlling of Internet content and is not in support of network neutrality. Access to the internet in China from the outside world is limited and all Internet traffic in China must pass through one of three large computer centers in Beijing, Shangai and Guangzhou. The Chinese government maintains control over China’s gateways to the global internet, giving authorities the ability to cut off cross-border information requests in order to restrict connectivity or access to content hosted on servers outside the country. This arrangement is the foundation for the ‘great Firewall’, the world’s most sophisticated internet censorship program.

Another strategy for control of the internet in China is that state-owned China Mobile, China Telecom, and China Unicom dominate the mobile market. In 2019, BT became the first foreign telecommunications company to receive permission to provide internet services across the country. Authorities exercise tight control over cybercafes and other public access points, which are licensed by the Ministry of Culture in cooperation with other state entities.

Another key part of the regulation of the telecommunications sector in China is content management, or censorship. This is not the focus of this Wiki. We address elements of cybersecurity or censorship laws as they relate to the infrastructure elements of the telecommunications sector in China (from the Cybersecurity Law 2017). Accordingly, the law we focus on here is the Telecommunications Regulation 2000. Before we jump into the legal framework, we explain first the policy context and then the market structures.

Policy Context
Chinese internet policy shows distinct features at different stages, heavily influenced by the political thinking and outlook of the leadership at the time as well as China’s social, economic and political conditions.[2]

The early phase, before a period of reform in the 1980s, saw telecommunications under strict state control, with limited infrastructure and services primarily serving governmental needs. Post-1980s economic reforms introduced a gradual liberalisation, allowing room for infrastructural growth and services expansion. This led to the implementation of the Telecommunications Regulation in 2000, establishing a legal framework that aimed to separate government functions from business operations, reduce monopolistic practices, and promote competition and innovation (article 4). The turn of the millennium saw a rapid acceleration in policy evolution market competition, marked by China's accession to the World Trade Organization (WTO) in 2001.

Before 1998, the telecommunications regulator was the Ministry of Posts and Telecommunication (MPT).[3] Until 1994, the MPT was instrumental in promoting the development of the Chinese telecommunications sector.[3] During this period, the telecoms industry was monopolized and there was no clear distinction between the functions of government and enterprises. From 1998, competition has been introduced into the telecom market, with the creation of a second communications network operator, China Unicom.[4] The second stage started with the establishment of Ministry of Information Industry (MII) in 1998. It became the principal regulator of the telecommunications and information industry and was initially granted operational control over both China Telecom and China Unicom.[5] During 1999 and 2000, China Telecom and China Unicom were restructured to promote greater competition, creating a total of seven distinct Chinese state-owned telecommunications providers each with primary operations in a different functional aspect.[6] Yet, given the relatively low accessibility of telecommunications to the Chinese population, Chinese telecommunications policy remained oriented towards the development of telecommunications infrastructures.[7] With the adoption of the Telecommunications Regulation in 2000, telecommunications regulation entered the stage of regulation according to laws, and a regulatory framework has been established.[9]
The situation shifted in in 2001 with China admission to the World Trade Organization (WTO). Obligations under the WTO required China to adopt telecommunications regulations to introduce and promote market competition, to protect the rights and interests of consumers and to increase the welfare of consumers.[8] This era led to further reforms, including the restructuring of state-owned enterprises (SOEs), the introduction of foreign investment in the telecommunications sector, and an emphasis on digitalisation. Establishment of MIIT (ministry of Information Technology in 2008, the Antimonopoly Law (AML) was finally adopted in 2007 and became effective in 2008. Similar to competition rules in other jurisdictions, the AML also prohibits anti-competitive agreements (Chapter II), abusing dominant positions (Chapter III), and anticompetitive mergers (Chapter IV).

Net Neutrality in China and the Great Firewall
A key part of the regulatory framework of the internet in China is the Great Firewall. Although the Great Firewall is inherently content moderation, not specifically related to net neutrality, it is important to understand in order to view internet regulation through the norms of the Chinese political framework.
The Great Firewall controls how internet content is distributed to citizens; what they can and cannot access. While the principle of net neutrality suggests citizens should be able to access different products on the internet without discrimination, the Great Firewall imposes this discrimination as government policy. In other words, net neutrality is not a principle considered in Chinese internet policy, and the policy position is pro-discrimination via content management in the name of national security.
The Great Firewall means that any new domain or platform which wants to enter Chinese cyberspace must adhere to domestic regulations. Consequently, domains that do not adhere to domestic regulations are banned; Facebook, Twitter, YouTube, Wikipedia, and Instagram.
Technologically, the Great Firewall is made up of two software’s:
Last mile providers of internet services to consumers automatically filter suspicious references; and
ISPs implement filters that blocked Chinese websites.
The GFW relies on filtering methods like blocking Internet Protocol (IP) address, Transmission Control Protocol (TCP) packet filtering and forging, Domain Name System (DNS) spoofing, redirection, and filtering Uniform Resource Locator (URL) by transparent proxies.
The implication of this system is that net neutrality - the equality of access by citizens to different parts of the internet - is not a consideration, as discrimination of content to “advance the dissemination of core socialist values” (Art 6, CSL) is inherent in the internet policy of the state in the name of cyber security.

Telecoms Regulation in China
The Chinese government structures its regulations to control political risks through carefully designed institutional arrangements, control of network operation, and tight regulations on end-users.
The legal foundation of telecommunication regulation is stated in China’s State Council Order 195, ‘Interim Regulations on International Interconnections of Computer Information Networks in the PRC’. (PRC meaning People’s Republic of China.) Order 195 granted the Steering Committee on National Information Infrastructure, part of the Ministry of Information Industry, primary regulatory responsibility for China’s internet, which includes determining and coordinating important issues of international interconnections.

Primary telecoms regulator
Steering Committee on National Information Infrastructure

In the internet server provision sector, Order 195 divides China’s Internet networks into two categories:
interconnecting networks and
access networks.

Interconnecting networks
Interconnecting networks are directly linked to the global internet through international leased lines and must have the approval of the State Council in order to operate. These interconnecting networks assume heavy and important responsibilities of internet regulation, including responsibility for online content blocking and filtering.
In this area, only four licences have been granted - CERNet and CSTNet and ChinaNet and ChinaGBN. These four interconnecting networks are tied closely to government agencies. ChinaNet is operated by China Telecom, which falls under control of the Ministry of Information Industry (MIIT). The below diagram shows the control of MII over interconnecting networks and ISPs.

Source: https://www.sciencedirect.com/science/article/pii/S0308596199000075?ref=cra_js_challenge&fr=RR-1

Access networks
The Chinese access networks are the equivalent of internet service providers (ISPs), providing access and content services but no direct global interconnection. An access network provider has to be licenced by and gain global access through one of the four interconnecting networks. ISPs are key to filtering the huge number of sensitive words on the blacklist. In such circumstances, Chinese ISPs are more political than commercial.

In summary, the provision of internet to consumers resembles the below diagram:
Global internet
➡
Interconnecting network
➡
Access Network
➡
Consumer

The Telecommunications Regulations
The Telecommunications Regulations, first issued in 2000 and then revised in 2016, covers licensing, fee collection, interconnectivity, operation and regulation of telecoms services in mainland China. The Classified Catalogue of Telecommunications Services, effective from 1 March 2016, sets out the specific and categories of services that are regulated under the telecommunications licensing regime. These regulations provides general regulations on domestic telecommunication services, including the licensing of telecommunication services, the provision of telecommunication services, the construction of telecommunications facilities and telecommunications security.[4]
The aim of these regulations are to regulate the order of the telecommunications market, safeguard the legitimate rights and interests of telecommunications subscribers and operators, ensure the safety of telecommunications networks and information, and to promote the sound development of telecommunication industry (article 1).[5] The regulations are addressed to anyone that engage in telecommunications activities or telecommunications-related activities (article 2). Article 4 provides that the supervision and regulation of the telecommunications industry shall be based on the principles of separation of government administration from enterprise management, elimination of monopoly, encouragement of competition and innovation, as well as principle of openness, fairness and impartiality. Under article 5, telecommunications operators shall provide telecommunication subscribers with services that are fast, accurate, secure, convenient and reasonably-priced.

The Telecommunications Regulation is mainly comprised of two substantial chapters for the purpose of promoting competition.[6]

Licencing scheme:
As far as market entry is concerned, a two-layer authorisation mechanism is established based firstly on services and secondly on geographic coverage. In terms of services, Category I of basic telecom services and satellite facilities (Category II of basic telecom services) are exclusively licensed by the Ministry of Industry and Information Technology (MIIT), and are so far only awarded to the three SOEs. With regard to other telecom services, intra-provincial operation licenses are administered by provincial-level telecom authorities while inter-provincial ones are authorised by the MIIT.

Cybersecurity Law (CSL)
The CSL establishes the overarching security framework relevant to internet traffic in China, including the governing of internet infrastructure (Art 2 CSL). To safeguard data sovereignty, the CSL imposes data localisation requirements on critical information infrastructure operators.

Article 9. Network operators shall, when conducting business operations and providing services abide by laws and administrative regulations, respect social morality, observe business ethics, operate in good faith, perform their obligations to safeguard cybersecurity, accept supervision by the government and the public, and undertake social responsibilities.
Article 12. The State shall protect the rights of citizens, legal persons
and other organisations to use networks in accordance with the law, promote
improved network access, provide better network services, provide the public
with secure and convenient network services, and guarantee the lawful,
orderly and free circulation of network-based information.

It is unclear what is meant by reference to ‘social morality’ and ‘business ethics’, but that we view this through the prism of Chinese international relations and our understanding of societal values - essentially connecting these ideas to community, state-first control of information. This is not translatable to European norms associated with fundamental rights and the single internal market.

Other related legislation includes:
State Council - Regulations on Security Protection of Computer Information Systems, Administrative Measures for Internet Information Services
The national intelligence law
Ministry of Public Security - Administrative Measures for Prevention and Treatment of Computer Viruses
Ministry of Public Security and five other ministries - Administrative Measures for Hierarchical Protection of Information Security
NPC Standing Committee - Law on Guarding State Secrets

Sources:
The above information is based on the following secondary sources and review of the Cybersecurity Law.
Li, Z., Yang, D., Li, Z., Han, C., & Xie, G. (n.d.). Mobile Content Hosting Infrastructure in China: A View from a Cellular ISP. Passive and Active Measurement, 100–113, 101. https://doi.org/10.1007/978-3-319-76481-8_8
Hu, Henry L. “The Political Economy of Governing ISPs in China: Perspectives of Net Neutrality and Vertical Integration.” The China Quarterly, no. 207 (2011): 523–40. http://www.jstor.org/stable/41305255.
https://metacept.com/the-legality-of-chinas-great-firewall-how-does-the-international-law-fare/

=== India ===
=== South Africa ===
=== United States ===

=== International Organizations ===