16 August 2019 – Classical totalitarianism, in which the state controls all institutions and most aspects of public life, largely died with the Soviet Union, apart from a few holdouts such as North Korea. The Chinese Communist Party retained a state monopoly in the political realm but allowed a significant private economy to flourish. Yet today, in Xinjiang, a region in China’s northwest, a new totalitarianism is emerging—one built not on state ownership of enterprises or property but on the state’s intrusive collection and analysis of information about the people there. Xinjiang shows us what a surveillance state looks like under a government that brooks no dissent and seeks to preclude the ability to fight back. And it demonstrates the power of personal information as a tool of social control.
What can be done to curtail this system? Publicly criticizing it is the first step. Despite their façade of imperviousness, the Chinese authorities have shown themselves to be sensitive to criticism. As media attention to the mass detention of Xinjiang’s Turkic Muslims mounts, the Chinese government has felt the heat; it has organized show-tours for diplomats and journalists as part of an effort to pass off the detention centers as benign. The tours have not been terribly convincing—in one case, inmates were compelled to sing, in English, the children’s song “If you’re happy and you know it, clap your hands”—but the charade gives other governments an excuse not to pick a fight with a powerful economic actor.
In July, twenty-four governments at the United Nations Human Rights Council in Geneva issued—for the first time in such numbers—a statement of concern about China, focusing on the mass detentions in Xinjiang. The statement shows that, despite China’s economic power, these governments will try to hold Beijing to the same standard as they would other abusive governments. China immediately countered by orchestrating its own statement of support, although it had to rely on the likes of North Korea, Venezuela, Saudi Arabia, Cuba, Syria, and Russia. One Chinese official even claimed—though there is no known evidence to support his statement—that in Xinjiang “over 90 percent of the students have returned to society and returned to their families and are living happily.”
However ham-fisted these responses, they show that international criticism has struck a nerve, that the Chinese government cares about its reputation and knows that what it is doing to the Turkic Muslim population of Xinjiang is difficult to defend. Its reaction indicates the importance of continuing to shine a spotlight on the extraordinary system of surveillance and detention that it has erected in Xinjiang.
Beijing also seems to fear the growing efforts by other governments to impose targeted sanctions on companies and individuals that help to build or operate this surveillance system. In February, Thermo Fisher Scientific, a large US-based medical technology manufacturer, announced that it would stop selling human identification technology to the Xinjiang Public Security Bureau. In July, in another sign of defensiveness, China opted to send a lower-ranking official—rather than Xinjiang Party Secretary Chen Quanguo, whom many have suggested should be targeted for sanctions—to defend its repressive policies at the UN Human Rights Council.
Ultimately, however, global protections for privacy need to be strengthened in the face of the state’s new technical capacities for surveillance and analysis. Citizens are starting from a position of weakness. The US government, for example, has long taken a minimalist view of the right to privacy. It maintains that we lose our right to privacy in such matters as the phone numbers that we dial or the addresses to which we send emails because we “share” that information with the phone or internet company—as if, in the modern age, we had any meaningful choice. The US government has backed off that position only when the Supreme Court has compelled it to do so, such as when the court ruled in 2018 that people have an expectation of privacy in data that communications service providers gather about their locations.
International standards, as laid out by the United Nations’ Office of the High Commissioner for Human Rights, make clear that information about our communications, just like the content of a message, is protected by the human right to privacy. This means that a government can gather such data only when doing so is legal under domestic and international law, as well as necessary and proportionate to achieving a legitimate goal. However, not just the United States but many governments around the world as well have a long way to go in recognizing this aspect of privacy rights.
Similarly, citizens are used to thinking about privacy as something that exists only behind closed doors, but in fact we expect a degree of privacy even as we go about our day-to-day affairs in public. Government agents could physically follow us, but the time and expense required to do so means that for most people they never bother. But the dynamics have changed now that most of us carry tracking devices with us everywhere we go—that is, our smart phones—and the government can with relative ease reconstruct our lives by capturing and analyzing that data. The US Supreme Court, as noted, recently recognized that we do have a privacy interest even as we go about our public lives, though this is a relatively new concept that needs to be developed.
In an earlier age, an extensive repository of information such as the one built by Chinese authorities about Muslims in Xinjiang would have been of limited utility because security officials would have had to comb through it manually. That would have allowed them to focus on selected individuals, but any effort at large-scale monitoring would have been overwhelming. Today, however, advances in machine-learning and data analytics enable the detection of “suspicious” patterns of behavior, such as “overuse” of electricity, that might not be apparent even to a trained detective.
Of course, even were other governments to embrace privacy protections, the Chinese state would be unlikely to join them. And supposing China were to subscribe theoretically to standards on surveillance, as it has for some human rights standards, residents would have no capacity to enforce them. Chinese citizens have no independent judiciary and no meaningful right to petition or protest against governmental misconduct.
All the same, international standards can exert influence even on a government like China’s once a critical mass of other countries shows it is ready to abide by those standards. Although, for example, when the 1997 treaty banning landmines was adopted, a number of major powers including China, Russia, and the United States refused to ratify it, a sufficiently large number of governments did embrace the accord. As a result, landmines became stigmatized as an indiscriminate weapon, and few governments would now admit to using them, whether or not they have ratified the treaty. The same process occurred after the international adoption of treaties banning cluster munitions and child soldiers.
The next step in checking the new surveillance apparatus is for civic groups to organize and press the world’s leading governments to develop and promote privacy protections for the modern technological world. The aim should not be a universally endorsed treaty. That would produce a lowest-common-denominator standard that would sell short our privacy rights. Instead, the objective should be to secure the endorsement of strong standards by a sufficient number of governments to stigmatize certain intrusions on our privacy. The focus should be to exercise restraint on the large-scale collection and transfer of personal data that can be used to profile whole populations; regulation of state acquisition and deployment of biodata such as DNA, facial images, or voice samples; meaningful export controls on surveillance technology; and transparency and public audit requirements for machine-learning tools deployed by governments that can affect basic rights.
Such measures, even if widely adopted, would not be a panacea. In many cases, they would not be legally enforceable. But they would make an important contribution to the development of broadly accepted international norms on the limits of surveillance. Those norms, combined with the opprobrium visited upon governments that violate them, are the best practical way we have to push back against the surveillance-state Leviathan that Beijing has built to monitor and control the Turkic Muslims of Xinjiang.
Kenneth Roth and Maya Wang
Human Rights Watch