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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