Wednesday, September 20, 2017

Translation: Provisions on the Administration of Internet Group Information Services

Provisions on the Administration of Internet Group Information Services

Issued on: September 7, 2017
Issued by: Cyberspace Administration of China
Source: http://www.cac.gov.cn/2017-09/07/c_1121623889.htm

Article 1. In order to standardize Internet group information services, safeguard  national security and the public interest, protect the legitimate rights and interests of citizens, legal persons and other organizations, these Provisions are hereby formulated in accordance with the "Cyber Security Law of the People's Republic of China" and the "State Council Notice Regarding Authorizing the Cyberspace Administration of China to Assume Responsibility for the Management of Internet Information Content."

Article 2. These Provisions shall apply to the provision and utilization Internet group information services within the territory of the People's Republic of China.
 
As used in these Provisions, the term "Internet group information services" refers to network spaces established and used through Internet websites and mobile Internet application software for exchanging information among groups online. As used in these Provisions, the term "Internet group information service providers" refers to providers of Internet group information platforms. As used in these Provisions, the term "Internet group information service users" includes anyone who establishes or administers a group.

Article 3. The Cyberspace Administration of China shall be responsible for nation-wide supervision and management of law enforcement for Internet group information services. Local bureaus of the Cyberspace Administration of China shall be responsible for the supervision and management of law enforcement of Internet group information services in their respective administrative areas.

Article 4. Internet group information service providers and users shall insist upon a correct orientation, promote socialist core values, actively cultivate healthy Internet culture, and safeguard a wholesome Internet environment.

Article 5. Internet group information service providers shall implement content security management responsibility, allocate specialized personnel and technical capabilities appropriate to the scope of their services, and establish comprehensive management systems for user registration, information censorship, emergency handling, and security protection.

Internet group information service providers shall formulate and publish administration rules and platform policies, and shall sign service agreements with users clearly establishing the rights and obligations of both parties.

Article 6. Internet group information service providers shall, in accordance with the principle of "backstage real name and on stage as you like it," and implement verification of  authenticated identity information of Internet group information service users. Internet group information service providers shall not provide information dissemination services for users who do not provide authentic identity information.

Internet group information service providers shall adopt such measures as are necessary to protect users' personal information security, and shall not disclose, tamper, damage, or illegally sell or provide it to others.

Article 7. Internet group information service providers shall implement management classification and categorization based on the nature of their Internet groups, the scope of their membership, and the degree of their activity. They shall formulate specific administrative systems and register them with the Cyberspace Administration office at the central, provincial, autonomous region, or municipal level, and regulate the dissemination and order of group information in accordance with the law.

Internet group information service providers shall establish systems to manage the Internet group information service users' credit rating, and shall provide services that correspond to their credit rating.

Article 8. Internet group information service providers shall put in place reasonable restrictions on the number of group members, groups established by individuals, and the number of participants in accordance with the scope and administrative capabilities of their services.

Internet group information service providers shall assign and clearly display a unique identification number for each group, and when a group reaches a certain number of members it shall put up an information page showing basic information about the group including its name, number of members, and category.

Internet group information service providers shall rank and screen the qualifications for establishing groups of the people who establish groups including their real identity and credit rank in accordance with the scope and classification of their groups, and shall implement screening and verification functionality for establishing and joining groups, and shall make note of the identity information of the founders, moderators, and members in every group.

Article 9. Internet group founders and moderators shall take responsibility for group administration, and shall regulate group online behavior and information distribution in accordance with laws, regulations, terms of service and platform policies, and create civilized and orderly online group spaces.

When Internet group members participate in group information exchanges they shall obey laws and regulations, deal with one another in a civilized manner, and express themselves in a rational manner.

Internet group information service providers shall provide group founders and moderators with the necessary functionality and powers to administer their groups.

Article 10. Internet group information service providers and users may not use Internet groups to transmit information with content that is prohibited by laws, regulations, and the State's relevant rules.

Article 11.  Internet group information service providers shall adopt measures to sanction groups that transmit information with content that is prohibited by laws, regulations, and the State's relevant rules such as warnings, suspensions, and bans, and shall retain relevant records and report them to the relevant regulatory agencies.

Internet group information service providers shall adopt administrative measures such lowering the credit ratings, suspending the administrative powers, and stripping the ability to establish groups of any founders, moderators, and users of groups that transmit information with content that is prohibited by laws, regulations, and the State's relevant rules, and shall  retain relevant records and report them to the relevant regulatory agencies.

Internet group information service providers shall establish a blacklist administration system, and any groups, founders, moderators, and members who commit serious violation of the Terms of Service shall be added to the blacklist and have their group service functionality restricted. Providers shall retain relevant records and report them to the relevant regulatory agencies.

Article 12.  Internet group information service providers shall accept oversight from the public and industry organizations, establish channels to report complaints, set up convenient methods for submitting reports, and handle complaints in a prompt manner. National and local bureaus of the Cyberspace Administration of China shall be responsible for supervising and inspecting the status of report processing in their respective jurisdictions.

Internet industry groups are encouraged to guide and promote Internet group information service providers to formulate industry conventions, strengthen industry self-discipline, and carry out their social responsibilities.

Article 13. Internet group information service providers shall cooperate with relevant regulatory agencies' supervision and inspection, and provide technical support and assistance as necessary.

Internet group information service providers shall retain network logs for at least six month in accordance with rules.

Article 14. Where an Internet group information service provider violates these Provisions, it shall be handled by the relevant agencies in accordance with relevant laws and regulations.

Article 15. These Provisions shall enter into force as of October 8, 2017.


互联网群组信息服务管理规定
2017年09月07日 18:00:00 来源: 中国网信网

互联网群组信息服务管理规定

第一条 为规范互联网群组信息服务,维护国家安全和公共利益,保护公民、法人和其他组织的合法权益,根据《中华人民共和国网络安全法》《国务院关于授权国家互联网信息办公室负责互联网信息内容管理工作的通知》,制定本规定。
   
第二条 在中华人民共和国境内提供、使用互联网群组信息服务,应当遵守本规定。
   
本规定所称互联网群组,是指互联网用户通过互联网站、移动互联网应用程序等建立的,用于群体在线交流信息的网络空间。本规定所称互联网群组信息服务提供者,是指提供互联网群组信息服务的平台。本规定所称互联网群组信息服务使用者,包括群组建立者、管理者和成员。
   
第三条 国家互联网信息办公室负责全国互联网群组信息服务的监督管理执法工作。地方互联网信息办公室依据职责负责本行政区域内的互联网群组信息服务的监督管理执法工作。
   
第四条 互联网群组信息服务提供者和使用者,应当坚持正确导向,弘扬社会主义核心价值观,培育积极健康的网络文化,维护良好网络生态。
   
第五条 互联网群组信息服务提供者应当落实信息内容安全管理主体责任,配备与服务规模相适应的专业人员和技术能力,建立健全用户注册、信息审核、应急处置、安全防护等管理制度。
   
互联网群组信息服务提供者应当制定并公开管理规则和平台公约,与使用者签订服务协议,明确双方权利义务。
   
第六条 互联网群组信息服务提供者应当按照“后台实名、前台自愿”的原则,对互联网群组信息服务使用者进行真实身份信息认证,用户不提供真实身份信息的,不得为其提供信息发布服务。
   
互联网群组信息服务提供者应当采取必要措施保护使用者个人信息安全,不得泄露、篡改、毁损,不得非法出售或者非法向他人提供。
   
第七条 互联网群组信息服务提供者应当根据互联网群组的性质类别、成员规模、活跃程度等实行分级分类管理,制定具体管理制度并向国家或省、自治区、直辖市互联网信息办公室备案,依法规范群组信息传播秩序。
   
互联网群组信息服务提供者应当建立互联网群组信息服务使用者信用等级管理体系,根据信用等级提供相应服务。

第八条 互联网群组信息服务提供者应当根据自身服务规模和管理能力,合理设定群组成员人数和个人建立群数、参加群数上限。
   
互联网群组信息服务提供者应设置和显示唯一群组识别编码,对成员达到一定规模的群组要设置群信息页面,注明群组名称、人数、类别等基本信息。
   
互联网群组信息服务提供者应根据群组规模类别,分级审核群组建立者真实身份、信用等级等建群资质,完善建群、入群等审核验证功能,并标注群组建立者、管理者及成员群内身份信息。
   
第九条 互联网群组建立者、管理者应当履行群组管理责任,依据法律法规、用户协议和平台公约,规范群组网络行为和信息发布,构建文明有序的网络群体空间。
   
互联网群组成员在参与群组信息交流时,应当遵守法律法规,文明互动、理性表达。
   
互联网群组信息服务提供者应为群组建立者、管理者进行群组管理提供必要功能权限。
   
第十条 互联网群组信息服务提供者和使用者不得利用互联网群组传播法律法规和国家有关规定禁止的信息内容。
   
第十一条 互联网群组信息服务提供者应当对违反法律法规和国家有关规定的互联网群组,依法依约采取警示整改、暂停发布、关闭群组等处置措施,保存有关记录,并向有关主管部门报告。
   
互联网群组信息服务提供者应当对违反法律法规和国家有关规定的群组建立者、管理者等使用者,依法依约采取降低信用等级、暂停管理权限、取消建群资格等管理措施,保存有关记录,并向有关主管部门报告。
   
互联网群组信息服务提供者应当建立黑名单管理制度,对违法违约情节严重的群组及建立者、管理者和成员纳入黑名单,限制群组服务功能,保存有关记录,并向有关主管部门报告。
   
第十二条 互联网群组信息服务提供者和使用者应当接受社会公众和行业组织的监督,建立健全投诉举报渠道,设置便捷举报入口,及时处理投诉举报。国家和地方互联网信息办公室依据职责,对举报受理落实情况进行监督检查。
   
鼓励互联网行业组织指导推动互联网群组信息服务提供者制定行业公约,加强行业自律,履行社会责任。
   
第十三条 互联网群组信息服务提供者应当配合有关主管部门依法进行的监督检查,并提供必要的技术支持和协助。
   
互联网群组信息服务提供者应当按规定留存网络日志不少于六个月。
   
第十四条 互联网群组信息服务提供者和使用者违反本规定的,由有关部门依照相关法律法规处理。
   
第十五条 本规定自2017年10月8日起施行。

Monday, September 18, 2017

Man Jailed Seven Months for Saving ISIS Videos on Phone and Baidu Cloud Storage

On September 8, 2017, the People's Court of China website posted the judgment of a court in Beijing imposing a seven month prison sentence on Duan Zheng on the grounds that he violated Article 120-6 of China's Criminal Law (illegal possession of materials promoting terrorism and extremism) for saving seven terrorist videos on his cell phone and his Baidu cloud storage account. In reaching its judgment the court noted:
  • There was no evidence that Duan distributed or shared the videos or showed them to anyone else.
  • Duan used VPN software to "climb over the wall" to access the overseas websites from which he downloaded the videos. 
  • The court rejected Duan’s defense that he downloaded the videos out of curiosity and because he found them exciting, notwithstanding the fact that he had also downloaded videos of car accidents with graphic violence.
  • Duan “should have been able to discern” that the content of the videos at issue promoted terrorism and extremism.
The only video specifically mentioned in the court judgment was "NEWISISExecutionofpoliceofficersbyshooting_theYNC." This screenshot was taken on September 17, 2017, and shows a Baidu search for that title returns several results from the "theYNC" website.

Duan was not accused of having any communication, affiliation, or involvement with any terrorist organization, nor did the judgment explain how authorities became aware that Duan was in possession of the videos. The court did note that Duan confessed to viewing and downloading the videos in November 2016, but that he did not upload the videos to Baidu's Net Disk cloud storage until February 2017, and that authorities "received a report" about Duan's activities on March 2.

China’s Criminal Law was amended in November 2015 to add Article 120-6, which provides as follows:
Article 120-6: (Illegal Possession of Materials Promoting Terrorism and Extremism) Illegally possessing books, audio-visual materials or other materials that one clearly knows promote terrorism or extremism, where the circumstances are serious, is punishable by up to three years imprisonment, detention, or controlled release and/or a fine.
第一百二十条之六 【非法持有宣扬恐怖主义、极端主义物品罪】明知是宣扬恐怖主义、极端主义的图书、音频视频资料或者其他物品而非法持有,情节严重的,处三年以下有期徒刑、拘役或者管制,并处或者单处罚金。
The court noted that "when defendant Duan Zheng searched for and downloaded violent terrorist videos the software he used was the Doujia VPN software, and he circumvented the Great Firewall and viewed and downloaded them from "theYNC" website." Duan was not prosecuted for using VPN software.

This screenshot shows that the week before the court judgment was issued Doujia announced it was shutting down its VPN service.



Source:
http://wenshu.court.gov.cn/content/content?DocID=339923f4-6378-4359-8504-a7e8001099c2

First Instance Judgment in a Case of Duan Zheng's Illegal Possession of Materials Promoting Terrorism and Extremism

First Intermediate People's Court of Beijing

Criminal Judgment Document

(2017) Jing 01 Criminal First No. 69

Prosecuting Agency is the First Division of the Beijing People's Procuratorate.

Defendant Duan Zheng, male, 32 years old (born October 23, 1984), Han ethnicity, born in Beijing, middle school education, unemployed, registered address Haidian district, Beijing. Detained on March 2, 2017 on suspicion of the crime of possessing materials that promote terrorism and extremism. Formally arrested on March 15 of the same year. Currently being held in the No. 1 Beijing Jail.

Defense counsel Liu Ze of the Beijing Jingda Law Firm.

The First Division of the Beijing People's Procuratorate filed Criminal Indictment Document [2017] No. 58 with this court on July 10, 2017 charging defendant Duan Zheng with the crime of possessing materials that promote terrorism and extremism. On the same day this court accepted the case it convened a judicial panel served defendant Duan Zheng with a copy of the indictment, informed him of his rights during the court hearings, and solicited his opinions on procedural matters including waivers, jurisdiction, exclusion of illegal evidence, applications for witnesses to appear in court, applications to cross-examine, and the posting of judgment documents online. Relevant legal procedures were also explained to him, and defendant Duan Zheng expressed no objections.

On July 12, 2017 defense counsel Liu Ze submitted documents to this court confirming his retention as defense counsel, and the same day the judicial panel made arrangements for the defense counsel to review and copy all case materials, and reminded him to go to the jail to visit the defendant as soon as possible.

Based on a review of all the materials, the judicial panel determined that this case met the conditions for a public trial, and decided to hold public hearings. On August 21, 2017, the judicial panel held public hearings in this case. The First Division of the Beijing People's Procuratorate assigned Procurator Pan Xueqing to appear in court in support of the indictment, and defendant Duan Zheng and his defense counsel Liu Ze came to court to participate in the prosecution. Hearings in this case have now concluded.

The First Division of the Beijing People's Procuratorate charged: from the end of 2016 until March 2017, defendant Duan Zheng saved videos with content that promoted terrorism and religious extremist ideology at his home in Beijing's Haidian district on his mobile phone and on Baidu's NetDisk.

On March 2, 2017 defendant Duan Zheng was detained by public security officials, and the public security officials recovered seven videos from his mobile phone and Baidu NetDisk.

The First Division of the Beijing People's Procuratorate transferred evidence of the crime charged against defendant Duan Zheng to this court including physical evidence, written evidence, investigation conclusions, forensic investigation records, and the defendant's depositions and defenses. It maintained that defendant Duan Zheng's actions constituted the crime of illegal possession of materials promoting terrorism and extremism, and requested this court impose penalties in accordance with the law.

During the trial the defendant Duan Zheng did not raise any objections to facts or crimes charged by the prosecuting agency.

The main defenses offered by defendant Duan Zheng's defense counsel were: Duan Zheng downloaded and saved the videos in this case out of a sense of entertainment and curiosity, and prior to be detained he was not aware that the videos in this case were terrorist videos, and he therefore lacked the subjective intent to commit a crime. In addition, it is obvious that Duan Zheng did not commit any significant harm during this case, and there is no reason to believe he committed a crime, and Duan Zheng should not be subjected to criminal punishment.

During the trial it was determined that: from the end of 2016 until March 2017, defendant Duan Zheng saved videos with content that promoted terrorism and religious extremist ideology at his home in Beijing's Haidian district on his mobile phone and on Baidu's NetDisk. On March 2, 2017 defendant Duan Zheng was detained by public security officials, and the public security officials recovered seven videos from his mobile phone and Baidu NetDisk. The content of the videos promoted terrorism and religious extremist ideology, and represented model examples of violent terrorist videos, and their degree of harm of relatively great.

The foregoing facts were proven in court through evidence that was submitted and examined, and it has been shown:

1. The "Examination Records of the Contents of the Videos Possessed by Duan Zheng" submitted by the Beijing Public Security Bureau Anti-Terrorism Task Force proves: the content of the videos possessed by Duan Zheng promoted terrorism and religious extremist ideology, included content showing members of the "Islamic State" terrorist organization taking people's lives using bloody and savage methods, were exceedingly inciting, instructive, and violent, and represented model examples of violent terrorist videos.

2. The "Investigation Records," "Detention Warrant," and "Detention Manifest" produced by the Beijing Haidian District Public Security Bureau proves: the circumstances in which civil police confiscated Duan Zheng's gold Samsung mobile phone, and how the civil police conducted a search of Duan Zheng's home before witnesses at Apt. 1-107, # 3 Taipingzhuang Road, Haidian District, Beijing.

3. The Jing Hai (NetSec) Incident Scene Review [2017] No. 0302002 "On-Scene Review Investigation Work Record" and photos produced by the First Division of the Beijing Haidian District Public Security Bureau proves: From 10:50 to 11:40 pm on March 2, 2017, before witnesses, investigators conducted a search and inspection of the Samsung SM-C7000 mobile phone used by Duan Zheng, with the examination showing that the mobile phone had installed Baidu's NetDisk, with an account registration of XXX. The examination discovered the file "NEWISISExecutionofpoliceofficersbyshooting_theYNC.MP4" stored on the mobile phone, which corresponded to the video file that had been reported, which was copied to an optical disc.

The investegators logged on to the Baidu NetDisk account on the phone, and there in a folder labeled BaiduNetdisk/specialvideos were stored 10 videos, a review of which discovered that, in addition to the video that had been reported, there were an additional six terrorist sensitive videos, and the video thumbnails included the symbol of a terrorist organization. The aforementioned six videos were saved onto an optical disc.

4. Seven violent terrorist videos: the seven videos confiscated from Duan Zheng's phone, with bloody violent terrorist content were shown in court, and Duan Zheng acknowledged the seven videos.

5. The "Household Registration Materials" submitted by the Beijing Haidian District Huayuan Road Police Station proves: Defendant Duan Zheng's age, ethnicity, and other information.

6. The "Court Summons" submitted by the Beijing Haidian District Huayuan Road Police Station proves: On March 2, 2017, it received information from the District office saying that there was a criminal suspect named Duan Zheng in Haidian District suspected of possessing illegal materials that promoted terrorism, and asking the station to cooperate. Afterwards the civil police from the station met up with anti-terror officers from the District public security and state security bureaus and detained Duan Zheng at approximately 9:00 pm on March 2, 2017. This man admitted his name was Duan Zheng, from Beijing, and at that place confessed that in February 2017 he knowingly viewed videos with terrorist content and saved the videos to his mobile phone and uploaded them. Duang Zheng cooperated throughout the court summons process, and did not refuse, obstruct, resist, or flee.

7. The "Work Explanation" submitted by the Beijing Haidian District Huayuan Road Police Station proves: when defendant Duan Zheng searched for and downloaded violent terrorist videos the software he used was the Doujia VPN software, and he circumvented the Great Firewall and viewed and downloaded them from "theYNC" website. The files in this case on the Baidu NetDisk were not disseminated and because they were not set for sharing, it is believed other users were not able to download or view them.

8. Defendant Duan Zheng's testimony proves: In November 2016, he used Great Firewall circumvention software to on his mobile phone to access a foreign video website called "theYNC." On that website he watched seven violent terrorist videos and three videos of car accidents, all of which contained graphic violence. He then saved them on his mobile phone. In February 2017 he purchased Baidu NetDisk, and after getting online he uploaded the things that were saved on his mobile phone to the NetDisk. At around 9:00 pm on March 2, 2017 upon returning from a walk outside he found the civil police waiting for him outside his door, whereupon he was taken to the police station. He had downloaded some software called "Doujia" onto his computer, and after installing it it enabled his mobile phone to access overseas websites. He only stored them on his mobile phone and uploaded them onto the Baidu cloud storage that he had bought. The mobile phone that he had saved those violent terrorist videos on was the Samsung C7 mobile phone he was currently using with the number 186XXXX3023. He had downloaded and saved those videos because they were exciting, and wanted to keep them for his personal viewing, and did not have any other purpose. He neither shared them nor showed them to others. His Baidu cloud storage account: XXX, password 1984XXXX, no username. The violent terrorist videos he downloaded were about a minute long each, the content was all foreign (Muslims) terrorists using guns to execute people, and the scenes were particularly graphic, with lots of close-ups of shots to the head.

With respect to defenses raised by Duan Zheng's defense counsel that Duan Zheng was just downloading and saving the videos out of amusement and curiosity, that prior to his detention he was not aware that the videos at issue in this case were violent terrorist videos, and that he lacked subjective criminal intent, this investigation has shown: many of the names of the video files at issue in this case contained the letters "ISIS," and the videos included the "ISIS" terrorist organization members using extremely graphic and cruel methods to take the lives of others. Based on an assessment by public security agencies, the aforementioned videos promoted terrorism and religious extremist ideology, and are classic examples of violent terrorist propaganda material. "ISIS" is globally recognized as an extremist terrorist organization, and as an intelligent normal adult Duan Zheng of reasonable intelligence and social experience, he should have been able to discern that the content of the videos at issue in this case promoted terrorism and extremism. Furthermore, in responding to the court summons and throughout the trial process he openly admitted the violent terrorist nature of the videos at issue in this case. The evidence in this case is sufficient to prove that Duan Zheng had direct and specific knowledge of the violent terrorist nature of the videos at issue in this case, and therefore the defense offered by defense counsel lacks a factual basis, and is rejected by this court.

This court finds that defendant Duan Zheng illegally possessed seven videos with content that promoted terrorism and religious extremist ideology that were classic examples of violent terrorist videos, that the degree of harm was relatively great, that despite clearly knowing that the aforementioned videos were materials that promoted terrorism and extremism Duan Zheng nevertheless saved them to his mobile phone and his Baidu NetDisk, that the circumstances were serious, his actions constituted the crime of illegally possession of materials that promoted terrorism and extremism, and he should be subject to punishment.

The facts are clear and there is irrefutable evidence to support the charge of the First Division of the Beijing People's Procuratorate that defendant Duan Zheng commited the crime of illegally possession of materials that promoted terrorism and extremism, and the crime charged is hereby confirmed. Given that Duan Zheng confessed to his criminal actions in answer to the court summons, his punishment shall be reduced in accordance with the law.

There is a lack of factual and legal support for the defense offered by defense counsel that there was notably little actual damage arising from the circumstance in this case, that there was no actual crime, or that Duan Zheng should not be subjected to criminal penalties, and this court hereby rejects those defenses. Given this, on the basis of the facts, nature, and circumstances of defendant Duang Zheng's crimes, as well as the degree of harm to society, in accordance with Article 120-6, Article 67(3), Article 47, Article 52, Article 53,  and Article 61 of the "Criminal Law of the People's Republic of China" and Article 5 of the Supreme People's Court's "Certain Rules Regarding Issues Relating to Use of Financial Penalties," this Court hereby finds as follows:

Defendant Duan Zheng committed the crime of possessing materials that promote terrorism and extremism, and is sentenced to seven months imprisonment and fined 1,000 yuan.

(The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that he was in custody prior to the execution of this judgment. Therefore it shall run from March 2, 2017 to October 1, 2017. The fine shall be paid within 30 days after this judgment becomes effective).

If he does not accept this judgment he may appeal to this court or directly to the Beijing High People's Court within 10 days after the day after receiving this judgment. Written appeals should be submitted with one original and two copies.

Presiding Judge: Zheng Wenwei
Acting Judge: Xiang Yang
People's Assessor: Tian Zhimei

August 25, 2017

Judges Assistance: Deng Fei

Clerck: Wang Jingyan

段铮非法持有宣扬恐怖主义、极端主义物品一审刑事判决书

北京市第一中级人民法院

刑 事 判 决 书

(2017)京01刑初69号

公诉机关北京市人民检察院第一分院。

被告人段铮,男,32岁(1984年10月23日出生),汉族,出生地北京市,高中文化,无业,户籍所在地北京市海淀区。因涉嫌犯非法持有宣扬恐怖主义、极端主义物品罪,于2017年3月2日被羁押,同年3月15日被逮捕。现羁押于北京市第一看守所。

辩护人刘泽,北京市京大律师事务所律师。

北京市人民检察院第一分院以京一分检公诉刑诉[2017]58号起诉书,指控被告人段铮犯非法持有宣扬恐怖主义、极端主义物品罪,于2017年7月10日向本院提起公诉。本院于立案受理当日依法组成合议庭,并向被告人段铮送达了起诉书副本,向段铮告知了在法院审理期间的诉讼权利,征求了其对回避、管辖、非法证据排除、申请证人出庭、申请重新勘验、裁判文书上网等程序性问题的意见,并进行了相关法律程序的释明,被告人段铮表示均无异议。

2017年7月12日辩护人刘泽向本院递交了委托辩护的法律手续,合议庭于当日安排辩护人查阅、复制了全部卷宗材料,提示其尽快去看守所会见被告人。经审查全案证据,合议庭认为本案符合法定开庭条件,决定开庭审理。2017年8月21日合议庭公开开庭审理了本案。

北京市人民检察院第一分院指派检察员潘雪晴出庭支持公诉,被告人段铮及其辩护人刘泽均到庭参加诉讼。本案现已审理终结。

北京市人民检察院第一分院指控:被告人段铮于2016年底至2017年3月间,在本市海淀区其家中,将涉及宣扬恐怖主义、宗教极端思想内容的视频存储于手机及百度网盘内。被告人段铮于2017年3月2日被公安机关抓获归案,公安机关从其手机及百度网盘内查获涉案视频7部。

北京市人民检察院第一分院向本院移送了指控被告人段铮犯罪的物证、书证、审查意见、勘验检查笔录、被告人供述及辩解等证据,认为被告人段铮的行为已构成非法持有宣扬恐怖主义、极端主义物品罪,提请本院依法惩处。

在法庭审理中,被告人段铮对公诉机关指控的事实、罪名均未提出异议。

被告人段铮的辩护人提出的主要辩护意见为:段铮出于好玩有趣而下载保存涉案视频,被查获之前并不清楚涉案视频属于暴恐视频,缺乏犯罪的主观故意;段铮在本案中情节显著轻微危害不大,不认为是犯罪,或者对段铮免于刑事处罚。

经审理查明:被告人段铮于2016年底至2017年3月间,在本市海淀区其家中,将涉及宣扬恐怖主义、宗教极端思想内容的视频存储于手机及百度网盘内。被告人段铮于2017年3月2日被公安机关抓获归案,公安机关从其手机及百度网盘内查获涉案视频7部。视频内容涉及宣扬恐怖主义和宗教极端思想,属于典型的暴力恐怖视频,危害程度较大。

上述事实,有下列经庭审举证、质证的证据在案证实,可以确认:
1、北京市公安局反恐怖和特警总队出具的《关于对段铮持有视频内容的审查意见》证明:段铮持有的视频内容涉及宣扬恐怖主义和宗教极端思想,含有“伊斯兰国”恐怖组织以极度血腥残忍手段危害他人生命的内容,具有极强煽动性、示范性和暴力性,属于典型的暴力恐怖视频。

2、北京市公安局海淀分局出具的《搜查笔录》、《扣押决定书》、《扣押清单》证明:民警从被告人段铮处扣押金色三星手机一部的情况;以及民警在见证人的见证下,对段铮在京住地北京市海淀区北太平庄路3号1门107号房屋进行搜查的情况。

3、北京市公安局海淀分局出具的京公海(网安)现场勘[2017]0302002号《现场勘验检查工作记录》及图片证明:2017年3月2日22时50分至23时40分,在见证人的见证下,侦查员对段铮使用的三星牌SM-C7000手机进行现场勘验检查,勘验检查情况为此手机安装百度网盘,登录账号为×××。检索发现,该手机存储一名为“NEWISISExecutionofpoliceofficersbyshooting_theYNC.MP4”文件,与通报的视频文件相符,并将该视频文件刻录在光盘中。侦查员通过手机登录百度网盘,在BaiduNetdisk/特别视频文件夹中存储10部视频,经甄别发现除上述通报的视频外,另有6部涉恐敏感视频,视频图像中含有恐怖组织标志。上述6部视频文件刻录在光盘中。

4、暴力恐怖视频7部:从扣押的段铮手机中提取的7部视频,内容血腥暴力恐怖,上述视频均当庭进行播放,段铮对该7部视频予以确认。

5、北京市公安局海淀分局花园路派出所出具的《户籍材料》证明:被告人段铮的年龄、民族等自然情况。

6、北京市公安局海淀分局花园路派出所出具的《到案经过》证明:2017年3月2日,该所接分局线索移交,称在海淀区有一名涉嫌非法持有宣扬恐怖主义物品的犯罪嫌疑人段铮,要求该所民警配合工作。后该所民警会同分局国保支队配合市局反恐总队于2017年3月2日21时许将段铮抓获。该男子自称叫段铮,北京人,该人当场承认其在2017年2月在明知其观看的视频为有关暴恐内容的情况下,在手机内存储并上传视频的事实。在到案的过程中,段铮始终予以配合,没有拒绝、阻碍、抗拒、逃跑的行为。

7、北京市公安局海淀分局花园路派民警出所出具的《工作说明》证明:被告人段铮搜索和下载暴恐视频时所用的软件程序为VPN豆荚软件,其翻墙在“theYNC”网站观看并下载。涉案百度网盘中的文件未被传播,因未设置共享,故其他用户无法下载或观看。

8、被告人段铮供述证明:2016年11月他在手机上用翻墙软件上了一个叫“theYNC”的外国视频网站,在这个网站上看见了7部暴恐视频和3部车祸视频,都是血腥暴力的。他就把它们都存储在他的手机里了。2017年2月他买了一个百度网盘,联网后他把手机里的东西都上传到网盘里了。2017年3月2日21时许他刚从外面遛弯回来,就看见民警在他家门口等着他,就被带回了派出所。他在电脑上下载了一个叫“豆荚”的软件,设置之后就可以让他的手机看那些境外的网站了。他就只有在手机里保存了,买了百度云盘后就上传上去了。存储这些暴恐视频的手机就是他现在用的这部金色的三星牌C7型手机,手机号186XXXX3023。他下载保存这些视频的目的就是刺激,想留着自己看看,没有别的目的。他没有传播,没给别人看过。他的百度云盘账号:×××,密码1984XXXX,没有昵称。他下载的暴恐视频每个视频大概一分钟左右,内容大概都是外国(伊斯兰人)恐怖分子使用枪对人进行枪决,场面特别血腥,好多近距离爆头的视频。

对于被告人段铮的辩护人所提段铮出于好玩有趣而下载保存涉案视频,被查获之前不清楚涉案视频属于暴恐视频,缺乏犯罪的主观故意的辩护意见,经查:涉案视频文件名多含有“ISIS”字样,且视频内容均含有“伊斯兰国”恐怖组织以极度血腥残忍手段危害他人生命的行为,上述视频经公安机关审查均涉及宣扬恐怖主义和宗教极端思想,属于典型的暴力恐怖宣传品;“ISIS”是世界公认的极端恐怖组织,段铮作为心智正常的成年人,具有一定认识能力和社会阅历,其应当对涉案视频宣扬恐怖主义、极端主义的内容具有认知能力,且其到案后以及在本案庭审过程中,始终对涉案视频的暴力恐怖内容、性质予以明确供认,在案证据足以证实段铮对涉案视频的暴力恐怖性质具有明确而具体的认知,故辩护人所提该辩护意见缺乏事实依据,本院不予采纳。

本院认为,被告人段铮非法持有的7部视频内容涉及宣扬恐怖主义和宗教极端思想,属于典型的暴力恐怖视频,危害程度较大,段铮明知上述视频是宣扬恐怖主义、极端主义的物品而仍存储于手机及百度网盘内,情节严重,其行为已构成非法持有宣扬恐怖主义、极端主义物品罪,依法应予惩处。

北京市人民检察院第一分院指控被告人段铮犯非法持有宣扬恐怖主义、极端主义物品罪的事实清楚,证据确凿,指控罪名成立。鉴于段铮到案后能如实供述所犯罪行,依法对其从轻处罚。

辩护人所提本案情节显著轻微危害不大,不认为是犯罪,或应对段铮免于刑事处罚的辩护意见缺乏事实及法律依据,本院不予采纳。据此,本院根据被告人段铮犯罪的事实、犯罪的性质、情节和对于社会的危害程度,依照《中华人民共和国刑法》第一百二十条之六、第六十七条第三款、第四十七条、第五十二条、第五十三条、第六十一条及最高人民法院《关于适用财产刑若干问题的规定》第五条之规定,判决如下:

被告人段铮犯非法持有宣扬恐怖主义、极端主义物品罪,判处有期徒刑七个月,并处罚金人民币一千元。

(刑期自判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2017年3月2日起至2017年10月1日止。罚金于本判决生效后三十日内缴纳)。

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向北京市高级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本二份。

审 判 长  郑文伟
代理审判员  相 阳
人民陪审员  田枝梅

二〇一七年八月二十五日

法官 助理  邓 飞

书 记 员  王婧妍

Tuesday, September 12, 2017

Man Jailed for Providing Islamic Instruction on Tencent’s WeChat Messaging Service

On June 12, 2017, the People's Court of China website posted the judgment of a court in Xinjiang which upheld a two year prison sentence for Huang Shike on the grounds that he violated Article 287-1 of China's Criminal Law (“illegal use of information networks”) when he used two WeChat (Weixin) groups to “carry out discussion and instruction of religious texts.” The court cited the following specific actions of Huang as grounds for his conviction:
  • He once taught others how to pray;
  • He discussed how there was support in the Koran for the animal sacrifices made at the Gadhimai Festival.
The court also stated that WeChat groups were “non-religious venues” and that “it is not permitted to engage in religious activities in non-religious venues.”

China’s Criminal Law was amended in November 2015 to add Article 287-1, which provides as follows:
Article 287-1 [The Crime of Illegal Use of Information Networks] 
1. whoever commits one of the following acts through the use of information networks shall, where the circumstances are serious, be punished with a sentence of not more than three years imprisonment or detention, and a fine: 
(i) Establishing a web site or communication group to commit illegal criminal activities such as fraud, teaching criminal methods, or producing or selling contraband or controlled substances;
(ii) publishing information regarding the making or selling of contraband or controlled substances such as narcotic drugs, firearms, obscene materials, or other illegal criminal information;
(III) publishing information for the purpose of committing illegal criminal activities such as fraud.

Source: http://wenshu.court.gov.cn/content/content?DocID=6740b8cd-bad8-4fae-b59c-a78c00c7e475

Judgment in the Case of Huang Shike's Illegal Use of Internet Information

Xinjiang Uighur Autonomous Region High People's Court of the Yili Kazakh Autonomous Prefecture

Criminal Judgment Document

(2017) Xin 40 Criminal Final No. 78

Prosecuting Agency in the First Instance Yining County People's Procuratorate.

Appellant (Defendant in the first instance): Huang Shike, male, born April 24, 1968, Muslim, grade school education, no fixed employment, registered address is Qapqal Xibe Autonomous County, Xinjiang. Criminally detained on August 24, 2016 on suspicion of assembling a crowd to disturb social order, and formally arrested on September 6 of the same year. Currently detained in the Yining County jail.

The Yining County People's Court tried the case of defendant Huang Shike, who had been indicted by the Yining County People's Procuratorate for the crime of assembling a crowd to disturb social order, and issued Judgment Document (2016) Xin 4021 Criminal First No. 388 on December 12, 2016. After the verdict was announced defendant Huang Shike expressed his objection and submitted an appeal to this court. This court convened a judicial panel and, based on a review of the investigation records and interrogations of the appellant, concluded that the facts in this case were clear, and made a determination not to hold a trial. Based on the assessment of the judicial panel, this trial is hereby concluded.

The court of first instance held that on or about June 2016, the defendant Huang Shike established a group on Wechat called "Muslim Worship," and tought people how to worship on that Wechat group using voice recordings. The Wechat group had over 100 members. In August 2016, Huang Shike lectured on the "Koran" in a Wechat group called "Bridge-Fortress-Path Culture Studies," in which he discussed how there was support in the Koran for the animal sacrifices made at the Gadhimai Festival. The Wechat group had over 100 members.

The primary evidence providing the factual basis for the first instance judgment included: depositions by defendant Huang Shike, testimony of witness Mr. Huang, and electronic evidence forensic reports.

Based on the foregoing facts and evidence, the first instance judgment sentenced defendant Huang Shike to two years imprisonment for assembling a crowd to disturb social order.

After the verdict was announced Huang Shike appealed on the grounds that he did not know that his behavior was illegal, and that he was merely discussing and teaching a holy text, and that his actions did not in fact harm the nation or society, and asked the court of second instance for a fair verdict.

This court upholds the first instance judgment's assessment that the facts of Huang Shike's crime are clear. The evidence supporting an assessment of the fact that Huang Shike committed a crime include:

1. On or about June 2016, the appellant Huang Shike established a group on Wechat called "Muslim Worship," and the Wechat group had over 100 members, mainly his family and friends. These family and friends prayed together with him (the Salah), and that one time he taught others how to pray (the Salah). He did not know who established the "Bridge-Fortress-Path Culture Studies" Wechat group, and the group had over 100 people. One day the group moderator allowed him to lecture about how in the Koran there was textual support for the animal sacrifices made at the Gadhimai Festival.

2. Witness Mr. Huang (the daughter of appellant Huang Shike) testified that her father Huang Shike established the "Muslim Worship" Wechat group, and his family and friends joined the Wechat group, and that among them were people who did not know how to worship (the Salah). Her father taught them how to worship (the Salah); and that he would teach anyone in the group who wanted to would let him.

3. Evidence preservation lists and the judgment document proves that the navy blue OPPO mobile phone belonging to Huang Shike was lawfully obtained and preserved by the public security officers.

4. Investigation records and electronic evidence forensic reports prove that, an examination and analysis of the content of Wechat chat records on the OPPO mobile phone used by Huang Shike uncovered that Huang Shike engaged in illegal discussion and instruction on holy texts as set forth above.

This court finds that the appellant (defendant in the first instance trial) Huang Shike clearly understood that notwithstanding there were many people in Wechat groups, that Wechat groups are not religious venues, that it is not permitted to engage in religious activities in non-religious venues, he nevertheless established Wechat groups in which he carried out discussion and instruction of religious texts and other illegal religious activities, which disturbed the normal administrative order of religious activities, and violated China's relevant laws and regulations on the administration of religious activities, that his actions were serious, caused severe harm to society, and constitute the crime of illegal use of information networks.

This court holds that the first instance judgment's facts were clear, and its evidence was definitive and sufficient. However, it applied the law inappropriately, was incorrect in determining assigning criminal liability, and it should be corrected. Objectively speaking, the crime of assembling a crowd to disturb social order must simultaneously meet three prerequisites: "serious circumstances," "resulting in an inability to carry out work, production, business or teaching, research, or medical treatment," resulting in "severe losses." Not a single prerequisite may be missing. The actions of appellant Huang Shike did lack the prerequisite of "resulting in an inability to carry out work, production, business or teaching, research, or medical treatment," and therefore his actions do not constitute the crime of assembling a crowd to disturb social order.

Appellant Huang Shike claim that he did not understand that his actions were illegal and his desire for this court of second instance to issue a just judgment cannot be used as justification for him to avoid criminal responsibility. This court rejects his claim that all he did was discuss and instruct on religious scriptures in a Wechat group and that there was no actual harm to nation or society, because he engaged in the religious activities of discussing and instructing on religious scriptures in a non-religious venue, thereby disturbing the normal religious administration order, which was severely socially harmful.

In accordance with Article 287 (1)(i)(a) and (c) of the Criminal Law of the People's Republic of China as well as Article 225(1)(ii) of the Criminal Procedure Law of the People's Republic of China, this court hereby rules as follows:

Appellant (defendant in the first instance) Huang Shike committed the crime of illegal use of information networks, and is sentenced to two years imprisonment (The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that he was in custody prior to the execution of this judgment. Therefore it shall run from August 24, 2016 to August 23, 2018).

This judgment shall be final.

Presiding Judge Hong Liu
Judge Li Jingjian
Judge Mozhapaer

March 10, 2017

Clerk Wang Jihua

黄世科非法利用网络信息案判决

新疆维吾尔自治区高级人民法院伊犁哈萨克自治州分院
刑 事 判 决 书
(2017)新40刑终78号

原公诉机关伊宁县人民检察院。

上诉人(原审被告人):黄世科,男,1968年4月24日出生,回族,小学文化程度,无固定职业,户籍所在地新疆察布查尔锡伯自治县。2016年8月24日因涉嫌聚众扰乱社会秩序犯罪被刑事拘留,同年9月6日被逮捕。现羁押于伊宁县看守所。

伊宁县人民法院审理伊宁县人民检察院提起公诉的被告人黄世科犯聚众扰乱社会秩序罪一案,于2016年12月12日作出(2016)新4021刑初388号判决。宣判后,被告人黄世科不服,向本院提出上诉。本院依法组成合议庭,经阅卷审查,讯问上诉人,认为本案的事实清楚,决定不开庭审理。本案经合议庭评议,现已审理终结。

原判认定,2016年6月左右,被告人黄世科建立名为”穆斯林礼拜”的微信群,通过语音在该微信群中教他人做礼拜,该微信群有一百多人。2016年8月,黄世科在名为”梁堡道堂文化学习”的微信群中讲解《古兰经》里有关古尔邦节宰牲的目的的内容,该微信群里有一百多人。

原判认定上述事实依据的主要证据有:被告人黄世科的供述;证人黄某的证言;电子证物勘验报告等。

根据上述事实和证据,原判以被告人黄世科犯聚众扰乱社会秩序罪,判处有期徒刑二年。

宣判后,黄世科上诉称,其不知道自己的行为是违法行为,自己只是在微信群中讲经、教经,其行为没有实际危害国家和社会,请求二审法院公正判决。

本院经审理查明,原判认定上诉人黄世科犯罪的事实清楚,本院予以确认。认定上诉人黄世科犯罪事实的证据有:

1、上诉人黄世科供称,其于2016年月左右建立了名为”穆斯林礼拜”的微信群,群里有一百多人,主要是其亲戚和友人;这些亲戚和友人和其一起做礼拜(乃麻孜),有一次,其在该微信群里教他人如何做礼拜(乃麻孜)。”梁堡道堂文化学习”微信群是谁建的,其不知道,群里有一百多人;有一天群主让其在该微信群里讲一讲古尔邦节宰牲的内容,其就讲解了《古兰经》里有关古尔邦节宰牲的目的的经文内容。

2、证人黄某(系上诉人黄世科的女儿)证实,其父亲黄世科建立了”穆斯林礼拜”微信群,其家亲戚加入了该微信群,其中有不会做礼拜(乃麻孜)的,其父亲就教他们如何做礼拜(乃麻孜);群里有人让他教,他就教。

3、证据保全清单和决定书证实,黄世科所使用的黑蓝色OPPO牌手机被公安机关依法提取、保全。

4、检查笔录和电子证物勘验报告证实,通过对黄世科使用的OPPO牌手机里的微信聊天记录的内容进行勘验、分析,发现黄世科在微信群里从事了内容如上所述的非法讲经、教经活动。

本院认为,上诉人(原审被告人)黄世科明知微信群里人数众多;微信群并非宗教活动场所,在非宗教活动场所不能从事宗教活动,却私建微信群,进行讲经、教经等非法宗教活动,扰乱了正常的宗教活动管理秩序,违反了我国有关宗教事务管理的法律法规的规定,且其行为情节严重,社会危害性大,构成非法利用信息网络罪。

原判认定其犯罪的事实清楚,证据确实、充分,但适用法律不当,定罪不准,应予纠正。聚众扰乱社会秩序罪在客观方面必须是”情节严重”、”致使工作、生产、营业和教学、科研、医疗无法进行”和造成”严重损失”三个条件同时具备,缺一不可。上诉人黄世科的行为并不具备”致使工作、生产、营业和教学、科研、医疗无法进行”等条件,因此,其行为不构成聚众扰乱社会秩序犯罪。

上诉人黄世科关于不知道自己的行为属于违法行为,希望二审法院公正判决的上诉不能成为免除其刑事责任的理由;其关于只是在微信群里讲经、教经,其行为没有实际危害国家和社会的上诉,应予驳回,因为其在非宗教活动场所从事教经、讲经的宗教活动,扰乱了正常的宗教管理秩序,具有严重的社会危害性。

依据《中华人民共和国刑法》第二百八十七条之一第一款第(一)、(三)项和《中华人民共和国刑事诉讼法》第二百二十五条第一款第(二)项之规定,判决如下:

上诉人(原审被告人)黄世科犯非法利用信息网络罪,判处有期徒刑二年(刑期自本判决执行之日起计算,判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2016年8月24日起至2018年8月23日止)。

本判决为终审判决。

审判长 洪  流
审判员 李 精 简
审判员 莫扎帕尔

二〇一七年三月十日

书记员 王 继 华