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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Politics in Command: Understanding China’s Techlash
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Wednesday, February 02, 2022
Politics in Command: Understanding China’s Techlash
Guest Blogger
Nick Frisch At first glance, Beijing’s crackdown on China’s tech firms might
look familiar to American or European regulators grappling with how to tame
tech. As in Washington and Brussels, Chinese regulators cite
concerns over monopolistic abuses and dodgy data
brokers. Officials in all three jurisdictions have gestured towards
similar-sounding motives for their actions: reining in unaccountable corporate
cartels, protecting consumer rights, privacy, and data from monopolistic
abuses, and stopping socially disruptive profiteering from civil discord. Down at the level of the average tech consumer, China’s recent
actions have indeed mirrored, and in some cases exceeded those in Europe and
America. Chinese authorities, for instance, have spent the past few years
cracking down on shady data brokers whose practices damaged consumer trust;
Beijing’s recently introduced data
law matches,
and in many cases exceeds, the stringency of US or EU
policies. What’s missing from this picture is a dose of Chinese history. In
the relationship between the Chinese state, technology, and market forces, the
Chinese government has never been constrained by free market dogma. On the
contrary, the Communist Party’s ideological origins, as a conspiratorial and
messianic Leninist “vanguard” of
professional revolutionaries, put the Party leadership above the constraint of
any law or constitution, accountable only to their own understanding of the
“inexorable” laws of historical development. Long before the ideological import
of Marxism-Leninism, the imperial Chinese administrative state saw itself as a
guardian against market distortions in strategic commodities like salt, rice, and water. Left unchecked, market
forces could put salt and rice outside the reach of subsistence farmers,
leading to famines and revolts, and a toppling of the ruling dynasty; if the
state failed to maintain dykes and
levees, mismanaged irrigation could lead to hunger or flooding, and pitchforks at the gates of the
Forbidden City. For the administrators of the premodern imperial state, to
relinquish the right to exercise control over flows of people, capital, commodities, and
information would have been seen as misguided and dangerously eccentric. For
the leadership of a Leninist Party-state, accustomed to thinking of itself as a
vanguard uniquely attuned to the developmental dialectic of history, surrendering
such powers over markets would be unthinkable. These two strands of statecraft
were molded into the rulership of Mao Zedong during the early decades of the
People’s Republic of China. In braiding together the Marxist-Leninist and
imperial dynastic notions of statism, Mao pursued economic and political
schemes that turned China in on itself and prioritized political purity over
economic growth. The Chairman once quipped: “socialist weeds are more
fragrant than capitalist grain.” In the post-Mao reform era, these two strands of imperial and
Leninist statism have been reframed and adjusted under Deng Xiaoping’s formula
of “socialism with Chinese characteristics,” an intentionally vague formula.
The government pulled back on some areas of the economy and privatized others. Some
starry-eyed Western politicians and economists hailed these moves as a prelude
to full market economics and a more liberal politics. If so, they weren’t
listening closely: even as Deng argued for market reforms, Party hardliners
insisted that while some market development could be tolerated to increase
prosperity and strengthen the state’s economic base, markets must always
remain, fundamentally, “a bird
in a cage.” Neither the imperial nor the Marxist strands of Chinese statecraft
point towards any “end of history” with liberal capitalism. In the traditional
Chinese conception of history, dynasties are cyclical, and policymaking
alternates between tightening
and loosening, never questioning the baseline assumption of the state’s right
to intervene. In the Communist notion of history, any linear development
towards a “shining future” of socialism runs through a Leninist one-party
state; if the state has not yet withered, that simply means that full socialism
has not yet arrived. Today, Xi Jinping’s official ideologists are still molding
these two strands of thinking, now pushing them into a “new era” of “Xi Jinping thought”
of “socialism with Chinese characteristics”; meanwhile, the regime’s internal
police agencies keep domestic control through a “stability maintenance”
apparatus with a bigger annual budget than the People’s Liberation
Army. Liberal democracy and free-market capitalism is nowhere in the picture or
on the horizon, to the frustration of Western lobbyists who spent decades
advocating trade with China on the premise that it would lead to at least some
liberalization. In fact, the fruits of capitalist experimentation could be
tolerated only so long as they benefited the Party’s monopoly on power. In the
case of the tech sector, the limits of that tolerance have been reached, and
the reckoning has been more brutal than most Western investors or policymakers
could have imagined. In less than two years, over a trillion dollars of market
value has been wiped off Chinese tech firms; once brash CEOs have retired or
avoided the limelight, and been forced to issue a spate of public apologies and
promises of philanthropic aid. Western observers who see corporate rights to
growth and innovation as sacrosanct are baffled by Beijing’s moves, which seem
to cut against every Silicon Valley shibboleth of how to let great companies
flourish into world-beating behemoths. But Beijing cannot tolerate any company
or other entity which poses a systemic risk to Party power, or whose social or
economic misdeeds may tarnish the Party’s prestige
as a sound steward of the Chinese people’s interests. In ancient China, political accountability for central government
depended on the belief that, “if only the emperor knew” about misdeeds of
lower-level minions or local tyrants, redress and justice would be delivered.
Century after century, aggrieved petitioners flocked to the
capital and would attempt to flag down court officials to plead their case. In
modern China, citizens still hold a belief that the government must ultimately redress
the abuses and excesses of lower-level officials or unaccountable corporations.
For private firms, this remains true whether the offender is within or outside
the tech sector: at the moment, for example, the central government is
grappling with possible collapse in the real estate
industry, and millions of middle-class aspirants infuriated over broken
promises and unbuilt apartments. Even through the reform period, the Party has
not flinched from using aggressive policy tools and signaling mechanisms to
focus officials’ and executives’ minds and placate irate citizens. In 2007,
when a cycle of food- and product-safety scares embarrassed China on the eve of
the Beijing Olympics, a top pharmaceutical regulatory official accused of
taking bribes was executed. Last year, after a Party
official-cum-financial executive was convicted for shenanigans that damaged
consumer trust in China’s financial system, state media made a point of
covering that his death
sentence was carried out, rather than (as is normal
practice) suspended. As Beijing presses this broader crackdown on wayward sectors of
the economy, such as real estate and financial products, China’s techlash is an
outlier. Unlike other sectors of the private economy, the tech industry has no
precedent or ancestor in the state-run corporations. Through the 1990s, many
state-owned firms, such as those in infrastructure or finance, were partially
privatized, spun off, or reformed into profit-making
enterprises in the 1990s, but kept their vestigial ties to the state. Many of
the earliest profiteers from this semi-privatization came from privileged
Party princeling backgrounds. Tech was
different. Tech firms had few antecedents in the state-run sector, and Chinese
tech CEOs tended to emulate those in Silicon Valley, viewing the government as
fusty and unsuited to comprehend the dynamic realities of a new prosperity driven
by consumer-facing innovation and services. Over the last decade, this
calculus shifted as the majority of Chinese citizens flipped from being offline
to being wired through smartphones. In a comparatively short period of time,
hundreds of millions of people bought smartphones, plugging into China’s modern
tech economy and leapfrogging over the fax machine
and the PC. Suddenly, the Party realized that tech firms, and technologies
like cryptocurrency, had acquired astonishing
systemic power, and the government lacked insight into how these tech platforms
functioned and assessed risk. On the economic side, for instance, Chinese state
banks had become counterparties to microfinance loans issued by
Alibaba’s finance platforms, without insight into the algorithm that was
pricing their risk exposure and apportioning their capital. But the fear ran deeper than economics: for the first time since
the founding of the PRC, private firms had acquired and centralized more data
about Chinese citizens than the government surveillance apparatus that keeps
the Party in power. Police states are information gluttons, and
cannot tolerate other entities gorging themselves on citizens’ data without the
government getting a cut. Nor can a Leninist party tolerate non-state entities
gaining too much power over citizens’ information intake. The Chinese
leadership was said to be gobsmacked by Twitter’s deplatforming of President Trump
after the January 6th, 2021 storming of the U.S. Capitol building, finding it
inconceivable that a political leader could lose his megaphone due to the
decisions of a private capitalist executive. For China’s leaders, such loss of
control over the key platforms and channels of social and economic influence is
tantamount to markets run amok, and strengthens their resolve to ignore
bourgeois pieties about the free market and civil liberties. This, in Beijing’s
eyes, justifies the crackdown: it would be better to have a slightly less
prosperous and flourishing tech industry that is stable and compliant, even at
the cost of some innovation, competitiveness, and global market share, than to
follow “free markets” over a cliff. The roughness of China's methods shows the
importance and urgency of the task: besides "normal" regulatory
practices that would be familiar in Washington or Brussels, China has used
its full political toolbox against tech firms, including old-style denunciations in the pages of People's
Daily. Chairman Mao said that the Party must
always keep "politics in command." Beijing's tech crackdown shows
that, however much China has changed since, the warning still rings true. Nick Frisch is a Resident Fellow of the Yale Information Society Project. You can reach him by e-mail at nicholas.frisch@yale.edu.
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