Thread by @ChinaLawTransl8

This is the most important Social Credit authority to be released in some time, and it's currently available for public comment (thought August 20th). (thread) chinalawtranslate.com/en/futher-regu…

It seeks to clarify some critical conceptual concerns in building China's Social Credit System:
1.What data can be collected or used as ‘Credit Information’？
2.When can information be shared or made public，and how？
3. What penalties are allowed, with what procedures used?

The overall goal is to make sure that the system is part of the legal system, not something beyond it or parallel to it.

This is to be done by ensuring that there is a clear legal basis for any information collection or use, blacklisting, and penalties.

I've often thought that the people would get the system's nature better if China had said they were crafting a "Law on the Use of Administrative and Regulatory Data" instead of a 'social credit system', and you are still probably better off thinking of the system in that way.

The new rules make clear that 'public credit information', the information collected by gov. agencies in the course of their duties, is to be limited to that in a catalog created by the cross-departmental committee for social credit.

The catalog is to be drafted not only with input from the regulatory agencies most directly involved, but also from legal experts, scholars, businesses, industry associations, chambers of commerce and others.

The catalog of information types is to be made public.

If information is going to be considered negative, it must be based on judicial ruling, arbitration documents, administrative decisions and rulings, and other effective legal documents.

The system is about recording violations of laws and legal obligations.

The SCS mainly operates through industry-specific blacklists.
Regulatory agencies made rules for which violations under their authority merit blacklisting.
This is important, because OTHER agencies will take some actions against blacklisted agencies. chinalawtranslate.com/en/social-cred…

The new rules revisit the drafting of these blacklists, first requiring that blacklisting require both a violation of law, AND:
1) threat to health/safety
2) undermining markets
3) violating judicial or administrative orders, OR
4) refusal to perform national defense duties.

When specific standards for blacklisting are being drafted in a given industry, the new rules now require a 30 day public comment period.

They also require that criteria for list removals and corrections be included, and that periodic 3rd party evaluations be conducted.

Provincial level governments are to review blacklist designations, and parties must be informed of the grounds and matter before they are blacklisted, and will have a chance to object.

A major concerns has been that people were blacklisted without notice.

Just like information to be collected is to be limited to a specific catalog, there is also to be a national list of acceptable punishments, also open to comment from relevant parties.

3rd parties like banks and businesses can't be forced to take actions against blacklistees.

All punishments must have an explicit citation to the laws on which they are based.
Previous inter-departmental MOUs authorizing cross-departmental punishments have ALWAYS cited a legal basis for the action as part of the blacklisting standards

One of the fears about the social credit system, is that a 'credit consequence' for a violation, would become a way of covertly increasing the statutory penalty for that violation.

A parallel might be the lasting impact of a criminal record long after a sentence has been served.

The new rules are at pains to say that this can't be tolerated. That there must be a legal basis for penalties and that if the law doesn't allow for sufficient penalties, the correct approach is to lobby to amend the law, not use social credit.

I just realized that I haven't had any pictures for a while,o, for those of you who are totally lost because you've only heard about social credit as an algorithmic reputation device, not a regulatory rating scheme, try reading this 1st:
chinalawtranslate.com/en/china-socia…

Returning to data security and privacy, the draft requires that the goals and methods of data collection and use be indicated; and that 1-time blanket authorization or compelled consent can't suffice to permit collection.

This accords with recent moves in the commercial sector.

Existing social credit rules and blacklist standards that don't comply with the new requirements for legal constraints will become invalid at the end of 2021 if they are not adjusted appropriately.

As I mentioned at the start none of this is really so groundbreaking. It's mainly codifying principles that were always there or emerging in practice over the last several years.

Nor are all of the problems with social credit resolved.

Saying something is constrained by or limited to law is only as meaningful as those laws.
Many laws authorizing punishment in China are vague, or punish things like speech. Limiting social credit to such laws doesn't restrain it much.

It's also going to be critical to continue separating and standardizing terminology. Making sure that reference to administrative regulation talk about 信用 rather than 诚信 (integrity/creditworthiness) to ensure that the latter remains a moral concept, not a legal one.

This is why the requirements of public participation, and even the public participation in reviewing this draft, may be the most important new steps.

Here's another picture.

Now it's important to note that this document refers to 'public credit information'- that which is in the government's hands, but social credit also includes 'market credit information'- that collected by corporations. chinalawtranslate.com/en/giving-cred…

Market credit information can be a component for some systems giving rewards, but again, it can't be a basis for punishment of any kind without there being a violation of law.

I promise to write this up properly soon, but in the meantime, please consider reading what I've already written as this is all there already anyhow. chinalawtranslate.com/en/social-cred…

And here's a write up closely tied to the thread above. chinalawtranslate.com/social-credit-…