The redlists are coming! The blacklists are coming!

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[Hi, if you linked here from The New Republic, please consider also reading this other article about China's social credit system, that explains why I disagree with almost everything that article says!]

Over the next three months, China will be unveiling a series of interdepartmental agreements on joint enforcement of rewards and punishments for ‘trustworthy’ and ‘untrustworthy’ conduct in every area of life that has legal regulation!

That includes areas like: Food Safety, Travel, Energy Production, Environmental Protection, Marriage Registration, and many many more.

In areas where there are already joint enforcement agreements, the first lists of enforcement targets will be released no later than tomorrow: March 31. The lists of targets for rewards are called ‘redlists’ and the lists of targets for punishments are called ‘blacklists’. [i]

Where there are not yet joint enforcement agreements for an area, an agreement should be put in place by the end of June, with the first lists of targets released at the same time. [ii]

But let’s back up….

These red and black lists are at the heart of China’s emerging social credit system. Despite its name, however, social credit isn’t really focused on scores of any kind, but concerns regulatory enforcement of existing laws.

Basically the idea is to:

  1. Use real name registration systems (and unique organization ID numbers) to make sure that all of a person or organization’s conduct is traceable back to them.
    1. For organizations, their owners, controllers and legal representatives might be responsible for the organization’s misconduct.
  2. Where laws and regulations or other legally binding requirements are broken, the responsible party may be put on a blacklist by the government agencies that enforce those laws.
    1. Regulatory and supervisory agencies publish standards for what violations of law will get you entered on the lists.
    2. Violations that don’t meet the black listing standards might still put you on a non-public list for enhanced scrutiny.
      1. if you are put on 3 or more key scrutiny lists you will be put on a “Big Data Warning List”, and transferred to black lists if there is further misconduct.
  3. Through separate joint enforcement memorandum, different departments agree to take enforcement actions in their power against persons that other departments have blacklisted.
    1. Blacklists from each field are generally released to the public and other government agencies through National Social Credit Information Sharing Platform.

This system, while closely tied to enforcement of existing laws, still gives much cause for concern.

  • One concern is that it opens the door to additional punishments disguised as credit consequences. If blacklisting is for violations of laws, is it fair to add further punishments beyond that authorized for the underlying violation?
    • Collateral consequences of legal violations are not unique to China (many areas in the U.S. have harsh professional restrictions for those convicted of crimes of ‘moral turpitude’, which can also be a bar to immigration), but the more remote the restrictions or punishments become from the underlying offense, the more worrying it becomes.
  • Another concern is that the government might ultimately try to stretch the system to make a violation in one area truly invoke the full enforcement panoply of all government departments, making it so that violations in any area truly make it impossible to function until this ‘credit’ harm is undone. This would be a form of legal exile or outlawry, in which those violating the laws were almost viewed as having broken the social contract and no longer entitled to the benefits of legal and social protection.
    • The joint enforcement agreements available so far do not suggest this is likely, and it would be hard perhaps to get so many departments to agree to such a radical enforcement system.

[i] Guiding Opinions on Strengthening and Regulating Efforts on the Management of Lists of Persons Receiving Joint Incentives for Trustworthiness or Joint Punishment for Untrustworthiness Section II .

[ii] Guiding Opinions on Strengthening and Regulating Efforts on the Management of Lists of Persons Receiving Joint Incentives for Trustworthiness or Joint Punishment for Untrustworthiness Section III.

 

About Jeremy Daum 86 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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