Rule of Trust The Power and Perils of China's Social Credit Megaproject.

“RULE OF TRUST”: THE POWER AND PERILS OF CHINA’S SOCIAL
CREDIT MEGAPROJECT
YU-JIE CHEN,* CHING-FU LIN** & HAN-WEI LIU***
Emerging as a comprehensive and aggressive governance scheme, China’s “Social

Credit System” (SCS) seeks to promote the norms of “trust” in Chinese society by
rewarding behavior that is considered “trust-keeping” and punishing that considered
“trust-breaking.” This Article closely examines the evolving SCS regime and corrects
myths and misunderstandings popularized in the international media. We identify
four key mechanisms of the SCS (i.e., information gathering, information sharing,
labeling and joint sanctions) and highlight their unique characteristics as well as
normative implications. In our view, the new governance mode underlying the SCS—
what we call the “rule of trust”—relies on an ambiguous concept of “trust” and wide-
ranging, arbitrary and disproportionate punishments. It derogates from the notion of
“governing the country in accordance with the law” enshrined in China's
Constitution.
This Article contributes to legal scholarship by offering a distinctive critique of the
perils of China’s SCS in terms of the party-state’s tightened social control and human
rights violations. Further, we critically assess how the Chinese government uses
information and communication technologies to facilitate data-gathering and data-
sharing in the SCS with few meaningful legal constraints. The SCS’s boundless and
uncertain concept of “trust” and the unrestrained employment of technology are a
dangerous combination in the context of governance. We caution that the Chinese
government is preparing a much more sophisticated, sweeping version of the SCS
that will likely be reinforced by artificial intelligence tools such as facial-recognition
and predictive policing. Those developments will further empower the government to
enhance surveillance and perpetuate authoritarianism.
I. INTRODUCTION ................................................................................................................................ 2
II. CHINA’S SOCIAL CREDIT SYSTEM................................................................................................... 7
* Postdoctoral Scholar, Academia Sinica, Taiwan; Affiliated Scholar, U.S.-Asia Law Institute, New York
University School of Law; [email protected].

** Visiting Researcher, Berkman Klein Center for Internet & Society at Harvard University; Associate
Professor of Law, National Tsing Hua University, Taiwan. This research is partly funded by the Ministry of
Science and Technology of Taiwan (107-2636-H-007-001); [email protected].
*** Lecturer, Monash University, Australia; [email protected]. This research is partly funded by the
BLT Research Grant of Monash University. We wish to thank Jeremy Daum, John Gillespie, and Andrew
Nathan for their helpful comments on the Article. An earlier draft was presented at the 16th annual Information
Ethics Roundtable (IER) at the University of Copenhagen (May 17-18, 2018). We are grateful to Jenifer Sunrise
Winter and other participants for their valuable comments. Thanks also go to Pei-Jen Wang and Shih Ting
Wang for their excellent research assistance. All errors are our own.
1
2 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 32:1
A. The Evolution of “Social Credit” .............................................................................................. 7

B. How the System Operates: The Four Mechanisms of Social Credit ........................................ 10
C. Spillover: Extraterritorial Effects ............................................................................................ 20
III. RELEVANCE OF COMMERCIAL CREDIT RATING REGIMES IN BUILDING UP THE SCS .................. 22
IV. THE POWER AND PERILS OF CHINA’S “RULE OF TRUST” ............................................................. 25
A. The Power: Toward a “Futuristic” Version? .......................................................................... 25
B. The Perils: Social Control and Human Rights Violations in the Name of “Trust” ................. 28
V. CONCLUSION ................................................................................................................................. 34
I. INTRODUCTION
The leaders of the People’s Republic of China (PRC) have often claimed to be “governing
the country in accordance with the law” (yifazhiguo). 1 While this policy has often been
frustrated by widespread state-party practices in violation of the law,2 it is still the mantra of
China’s legal system.3 However, this Article argues that a new mode of governance is emerging
with the rise of China’s “Social Credit System” (shehui xinyong zhidu) or SCS. The SCS is an
unusual, comprehensive governance regime designed to tackle challenges that are commonly
seen as a result of China’s “trustless” society that has featured official corruption, business
scandals and other fraudulent activities.4 In our view, the regime of the SCS reflects what we
call the “rule of trust,” which has significant implications for the legal system and social control
in China.
XIANFA art. 5 (1982) (last amended Mar. 2018) (China).

1
See generally Jerome A. Cohen, Law’s Relation to Political Power in China: The Domestic Situation, in DI
2
LIU JIE MA HANBAO JIANGZUO LUNWEN HUIBIAN (第六屆馬漢寶講座論文彚編) [SIXTH HERBERT HAN-PAO
MA DISTINGUISHED LECTURESHIP] 251 (2017); EVA PILS, HUMAN RIGHTS IN CHINA: A SOCIAL PRACTICE IN THE
SHADOWS OF AUTHORITARIANISM (2017); SIDA LIU AND TERENCE C. HALLIDAY, CRIMINAL DEFENSE IN CHINA:
THE POLITICS OF LAWYERS AT WORK (2016).
3 There have been debates in the existing literature as to the distinction between the “thin rule of law” and the
“thick rule of law” in China. The former focuses on the formal or instrumental aspects of the rule of law,
regardless of “whether the legal system is part of a democratic or nondemocratic society, capitalist or socialist,
liberal or theocratic.” The latter, by contrast, is premised on certain substantive elements such as political
morality, conceptions of human rights and so on. Some would even argue that what Chinese leaders promote in
the legal system is not the “rule of law” but the “rule by law.” The distinction here is that while the rule of law
imposes certain restraints on the government, the rule by law concerns only how the government uses law to
rule its people. On different theories of the rule of law in China, see, e.g., Randall Peerenboom, CHINA’S LONG
MARCH TOWARD RULE OF LAW 3, 63-71 (2002). On the distinction between the “rule by law” and the “rule of
law” in China, see e.g., Eric W. Orts, The Rule of Law in China, 34 VAND. J. TRANSNAT’L L. 43 (2001).
4 Guanyu Yinfa Shehui Xinyong Tixi Jianshe Guihua Gangyao (2014—2020 Nian) de Tongzhi (关于印发社
会信用体系建设规划纲要（2014—2020 年）的通知) [Notice on Issuing the Outline of Plan for Building the
Social Credit System (2014–2020) ] (promulgated by the State Council, June 14, 2016), available at
http://www.gov.cn/zhengce/content/2014-06/27/content_8913.htm [hereinafter 2014 SCS Plan]. An unofficial
translation is available at https://chinacopyrightandmedia.wordpress.com/2014/06/14/planning-outline-for-the-
construction-of-a-social-credit-system-2014-2020/ (last visited July 28, 2018).
2018] THE POWER AND PERILS OF CHINA’S SOCIAL CREDIT MEGAPROJECT 3
We define the “rule of trust” as a governance mode that imposes arbitrary restrictions—
loosely defined and broadly interpreted trust-related rules—to condition, shape and compel the
behavior of the governed subjects. The idea of “trust” (xin, sometimes translated as honesty),
a moral principle that may be traced back to virtues cherished by Confucian thought, can be
rather fuzzy in the contemporary era, 5 but it may be understood as part of the Chinese
government’s recent efforts to fill an ideological void. 6 As noted by a leading China legal
scholar, Jerome Cohen, an immediate challenge confronting Chinese Communist Party leaders
is to find a credible ideology to legitimate their rule.7
The SCS “rule of trust” governance model is changing China’s legal system in
fundamental ways. On the one hand, the “rule of trust” may greatly enhance China’s weak and
deficient law enforcement system by forcing legal compliance through the imposition of
additional sanctions on dishonest illegal conduct.8 On the other hand, we argue that the “rule
of trust” is in fact undermining “rule of law” ideals in a number of ways. First, the officially
imposed norms of “trust,” which are vague and constantly expanding, weaken the role of clear
and predictable legal rules in guiding and regulating social and individual behavior. Second,
the SCS in its current form makes already disadvantaged groups more vulnerable to additional
punishments, which is a departure from the principle of equality before the law. Third, the
punishments jointly imposed by multiple government agencies under the SCS constitute an
additional layer of broad and disproportionate sanctions that go beyond what may be
legitimately imposed on an individual in the case of violation of law or regulation. In our view,
the SCS derogates from the notion of “governing the country in accordance with the law”
enshrined in China's Constitution. The “rule of trust,” in its ultimate form, threatens to replace
this conventional principle.
5 Admittedly, it is difficult to find a proper translation for xin. In the context of China’s SCS, translators often
use the phrases “credit” or “trust,” but xin can also refer to integrity and other personal virtues. For our
purposes, xin is translated as trust.
6 Similarly, the recent rhetoric about establishing a “civilized society” (shehui wenming) also appears to echo
Confucian humanism. Xianfa Xiuzheng An (宪法修正案) [Amendment to the Constitution], art. 32 (which was
revised to read as promoting “the coordinated development of material, political, spiritual, social and ecological
civilization, to build China into a prosperous, democratic, civilized, harmonious and beautiful modern socialist
power and realize the great rejuvenation of the Chinese nation."). Scholars have argued that one distinctive
feature of the Chinese legal system is the use of various campaigns to address perceived crises arising out of
shortcoming in the existing framework. In this light, the SCS can be seen as yet another new, comprehensive
campaign that underpins China’s governance. See Sarah Biddulph et al., Rule of Law with Chinese
Characteristics: the Role of Campaigns in Lawmaking, 34 (4) L. & POL’Y 373 (2012).
7 Jerome A. Cohen, Xi Jinping Sees Some Pushback Against His Iron-fisted Rule, Wᴀsʜ. Pᴏsᴛ (Aug. 2, 2018),
https://www.washingtonpost.com/news/global-opinions/wp/2018/08/02/xi-jinping-sees-some-pushback-against-
his-iron-fisted-rule.
8 Jeremy Daum, Credible Threat? Taiwan, Websites and Social Credit, CHINA LAW TRANSLATE (June 30,
2018), https://www.chinalawtranslate.com/credible-threat-taiwan-websites-and-social-credit/; Rogier Creemers,

China’s Social Credit System: An Evolving Practice of Control (May 9, 2018), available at
https://ssrn.com/abstract=3175792.
We note that this new mode of the “rule of trust” as embedded in the SCS, along with
other new tools (such as a far-reaching national network of facial-recognition cameras and
data-driven profiling and surveillance mechanisms), has been enabled by China’s fast-paced
technological advances. Conventional wisdom has long held that technological developments,
especially those related to information and communications technologies (ICTs), constitute a
largely positive force that supports civil society movements and hence generate positive
impacts on democratization. 9 Yet such technological advances can serve as a mega-
infrastructure that empowers not only civil society and individuals, but also autocratic regimes
that attempt to perpetuate and exacerbate the existing power asymmetry via omnipresent and
omnipotent surveillance, censorship and control mechanisms. China’s SCS plainly highlights
this reality as it exploits this mega-infrastructure in the interest of authoritarian control.
This trend dovetails with the “trust” rhetoric promoted by the Chinese government. In the
name of boosting social trust, the ruling power finds plausible justification for employing
intrusive technology and data-gathering-and-sharing practices to closely surveil and regulate
social interactions, thereby strengthening and expanding its political control. In the context of
governance, a boundless notion of “trust” and the unrestrained development of technology are
a dangerous combination.
The aims of this Article are threefold. First, this Article offers a comprehensive, up-to-
date account of the evolving system of China’s SCS. While a small number of experts have
10
begun to examine China’s SCS closely, there remain certain popular myths and
See, e.g., LAWRENCE K. GROSSMAN, THE ELECTRONIC REPUBLIC: RESHAPING AMERICAN DEMOCRACY FOR
9
THE INFORMATION AGE 5–6 (1996); Rupert Wegerif, New Technology and the Apparent Failure of Democracy:
An Educational Response, 1(1) J. FOR RES. & DEBATE 1, 1 (2018); Oren Perez, Open Government,
Technological Innovation and the Politics of Democratic Disillusionment: (E-)Democracy from Socrates to
Obama, 9 I/S: J. L. & POL’Y FOR INFO. SOC’Y 61, 64 (2013). Many scholars have argued that the Internet, the
advances in ICTs and the availability of big data have reshuffled power and promoted democracy through
stronger civic empowerment, greater access to information and channels of expression and higher levels of
transparency. See e.g. Deborah G. Johnson, COMPUTER ETHICS 212 (3rd ed., 2001); Bernd C. Stahl, Democracy,
Responsibility, and Information Technology, PROC. OF THE EUR. CONF. ON E-GOVERNANCE 429, 434-35 (2012).
Technological innovations like smartphones, digitalization of information, the Internet and various data-sharing
programs, along with the growth of global social media platforms, have together profoundly “empowered
citizens to amplify their voices and hold governments accountable.” Technology Is Transforming Democracy,
NATIONAL DEMOCRATIC INSTITUTE, https://www.ndi.org/technology-transforming-democracy (last visited Nov.
8, 2018); Thomas Carothers, Why Technology Hasn’t Delivered More Democracy, FOREIGN POLICY (June 3,
2015), http://foreignpolicy.com/2015/06/03/why-technology-hasnt-delivered-more-democracy-democratic-
transition/.
10 Among the handful of law review articles that touch upon China’s social credit system, some consider the
linkage between lending practices and an individual’s footprint in the online environment. This is not, strictly
speaking, the SCS that we are referring to here. See e.g., Nizan Geslevich Packin & Yafit Lev-Aretz, On Social
Credit and the Right to be Unnetworked, 2016 COLUM. BUS. L. REV. 339 (2016). Others rely on media coverage
and describe the SCS as giving every citizen and company a “trustworthiness score.” See e.g., Chris Muellerleile
& Susan L. Robertson, Digital Weberianism: Bureaucracy, Information, and the Techno-rationality of
Neoliberal Capitalism, 25 IND. J. GLOBAL LEGAL STUD. 187, 209 (2018). Still others, in addressing the risks
associated with data-driven technologies in other contexts, simply refer to the term “social credit” without
misunderstandings.11 To be clear, the system has not—at least for now—employed artificial
intelligence (AI) technologies, real-time data or automated decisions, despite foreign media
reports to the contrary.12 Nor has it reached the stage where each individual is given a numeric
“score” as such in determining the person’s social status, as imagined in the fear-inspiring
episode “Nosedive” from Netflix’s dystopian series “Black Mirror.” 13 Yet the current
development of China’ SCS is already concerning. We critically assess the perils of the system
in terms of tightened social control and human rights violations. We also caution that, with
considerable sophistication, the Chinese government is preparing a more sweeping version that
could combine the SCS with AI-enabled tools like facial-recognition and predictive policing.
Such tools could further empower the government to enhance authoritarianism and consolidate
its social control.
Second, this Article highlights how the Chinese government uses ICTs and other
technologies to facilitate data-gathering and data-sharing in the SCS with few meaningful legal
constraints. Throughout the world the uses of technology have engendered scholarly debates
over ethical, social, legal and political dimensions, but much of the discussion has focused on
the American or European contexts.14 The Chinese government’s resort to such innovations
has thus far received limited discussion in Western scholarship, despite the fact that China is
elaboration. See e.g., Abbey Stemler, Feedback Loop Failure: Implications for the Self-Regulation of the
Sharing, 18 MINN. J. L. SCI. & TECH. 673, 707 (2017). Although some consider the SCS in greater detail, their
focuses are more on relevant ramifications for a specific sector. See generally, e.g., Hideyuki Matsumi,
Predictions and Privacy: Should There Be Rules about Using Personal Data to Forecast the Future? 48 CUMB.
L. REV. 149 (2017-2018); Eva Pils, In Whose Service? The Transnational Legal Profession's Interaction with
China and the Threat to Lawyers' Autonomy and Professional Integrity, 41 FORDHAM INT’L L. J. 1263 (2018).
Three excellent prior works offer general insight on the SCS: Yongxi Chen & Anne S. Y. Cheung, The
Transparent Self under Big Data Profiling: Privacy and Chinese Legislation on the Social Credit System, 12 (2)
J. COMP. L. 356 (2017); Creemers, supra note 8; Xin Dai, Toward a Reputation State: The Social Credit System
Project of China (June 10, 2018), https://ssrn.com/abstract=3193577.
11 Jeremy Daum, China Through a Glass, Darkly: What Foreign Media Misses in China's Social Credit,
CHINA LAW TRANSLATE (Dec. 24, 2017), https://www.chinalawtranslate.com/seeing-chinese-social-credit-

through-a-glass-darkly/. See also Jamie Horsley, China’s Orwellian Social Credit Score Isn’t Real, FOREIGN
POL’Y (Nov. 16, 2018), https://foreignpolicy.com/2018/11/16/chinas-orwellian-social-credit-score-isnt-real/.
12 See e.g., Rachel Botsman, Big Data Meets Big Brother as China Moves to Rate its Citizens, WIRED (Oct.
21, 2017), https://www.wired.co.uk/article/chinese-government-social-credit-score-privacy-invasion; Mariel

Myers, China Turns to Tech to Monitor, Shame and Rate Citizens, CNET (Apr. 25, 2018),
https://www.cnet.com/news/china-turns-to-tech-to-monitor-shame-and-rate-citizens/; Samantha Hoffman,
Technology-Enhanced Authoritarian Control with Global Consequences, AUSTRALIAN STRATEGIC POLICY
INSTITUTE, https://www.aspi.org.au/report/social-credit (last visited July 28, 2018); Matthew Carney, Leave No
Dark Corner, ABC NEWS (Sept. 17, 2018), https://www.abc.net.au/news/2018-09-18/china-social-credit-a-
model-citizen-in-a-digital-dictatorship/10200278.
13 See e.g., Sophie Gilbert, Black Mirror’s ‘Nosedive’ Skewers Social Media, THE ATLANTIC (Oct. 21, 2016),
https://www.theatlantic.com/entertainment/archive/2016/10/black-mirror-nosedive-review-season-three-
netflix/504668/.
14 The recent literature in particular focuses on various aspects of AI—such as legal personhood of robots,
regulatory frameworks for self-driving cars, autonomous weapons and the use of data-driven technologies in
policing and court proceedings. See e.g., Andrew Guthrie Ferguson, Policing Predictive Policing 94 WASH. U.
L. REV. 1109 (2017); MIREILLE HILDEBRANDT, SMART TECHNOLOGIES AND THE END(S) OF LAW (EDWARD
ELGAR, 2015).
leading the way in crafting and deploying technologies in its ruling framework.15 Our Article
helps fill this gap.
Third, this Article uncovers a shift in China’s governance. The SCS reflects the Party-
state's heavy reliance on an ambiguous concept of “trust” and the disproportionate, arbitrary
punishment for those who are considered “trust-breakers,” a convenient governance tool that
serves power holders. With the SCS operation due to peak in 2020 according to the Chinese
government’s planning,16 government policies will continue to be grounded in the promotion
of “trust.” The outcome of the struggle between the “rule of trust” and the policy of “governing
the country in accordance with the law” remains to be seen.
Against this backdrop, the rest of this Article proceeds as follows. Part II offers an
overview of the SCS. We trace the evolution of the concept of “social credit” and identify the
four mechanisms that sustain the operation of the contemporary system: (1) information
gathering, (2) information sharing, (3) labeling and (4) joint sanctions. We examine each
mechanism in detail and highlight its distinctive characteristics and functions in China’s SCS.
We further note the spillover effects of the SCS on certain foreign entities. Part III discusses
private, commercial credit rating services spearheaded by Ant Financial’s Sesame Credit
(which employs cloud computing and machine learning to calculate a user’s score) and its
relevance to China’s SCS. Also, we underscore the latest development by the Chinese
government to set up a publicly funded credit rating agency with the joint force of major private
companies, which merits follow-up research. In Part IV, we assess the Chinese government’s
“advantages”—largely derived from its authoritarian control and limited legal checks—over
other countries in developing the SCS as is and potentially incorporating AI and blockchain in
the future to fulfill its vision of a “trust-keeping” society and omnipresent government power.
We critique this approach by pointing out the serious perils that come with unfettered power,
including the party-state’s extensive, repressive control of all aspects of social life,
reproduction and reinforcement of unjustified social exclusion and discrimination, shrinking
15 The way in which China sophisticatedly leverages its data-driven and AI technologies to further entrench
its political hold has led some to coin titles for the regime, such as the “Digital Totalitarian State,” or call it a
practitioner of “Cloud Totalitarianism.” China’s rapidly expanding, nationwide web of facial-scanning cameras
and its deployment of predictive policing to monitor Uyghurs in Xinjiang both represent (in)famous illustrations
of the government’s political grip. See e.g., China Invents the Digital Totalitarian State, THE ECONOMIST (Dec.
17, 2016), https://www.economist.com/news/briefing/21711902-worrying-implications-its-social-credit-project-
china-invents-digital-totalitarian/; Simon Denyer, Beijing Bets on Facial Recognition in a Big Drive for Total
Surveillance, WASH. POST (Jan. 7, 2018),
https://www.washingtonpost.com/news/world/wp/2018/01/07/feature/in-china-facial-recognition-is-sharp-end-
of-a-drive-for-total-surveillance/?utm_term=.f0d5ff2552d2; China: Big Data Fuels Crackdown in Minority
Region, HUMAN RIGHTS WATCH (Feb. 26, 2018), https://www.hrw.org/news/2018/02/26/china-big-data-fuels-
crackdown-minority-region.
16 2014 SCS Plan, supra note 4.
space for privacy and the erosion of due process in the giant government machine. Part V
concludes this Article.
II. CHINA’S SOCIAL CREDIT SYSTEM
A. The Evolution of “Social Credit”
1. A Primitive, Financially-Oriented Concept
While the SCS has only caught the world’s attention in recent years, the term “social credit”
has existed in China for quite some time. As early as 2002, then Chinese Communist Party
leader Jiang Zemin underscored the need for the nation to “strengthen the social credit system
in the modern market economy” in his report to the 16th Party Congress.17 On its face, the use
of the term “social” here clearly implied something other than “credit” as employed in a
business or financial sense. Yet, nowhere in this report did it precisely explain what the term
actually meant. Judging from the context, “social credit” seemed to go hand in hand with Jiang
Zemin’s proclaimed goal to “rectify and regulate the order of the market economy.”18 That is,
the idea of “social credit” at this point appeared confined to the policy of seeking to collect
financial data for the purpose of building credit history for commercial transactions. Indeed, in
that same year, when Jiang Zemin called for strengthening “social credit” in the country, the
State Council authorized the People’s Bank of China (PBoC) to establish a national credit
database and to establish a specialized credit reporting agency. 19 Accordingly, the PBoC
introduced a “Credit Reference Center,”20 the only national credit-scoring bureau at the time
that provided financial credit reports on individuals and businesses.21
It follows from the above that the notion of social credit at that time seemed more
business-oriented, with a view toward creating a credit system implemented in contemporary
17 Creemers, supra note 8, at 8 (citing Zai Zhongguo Gongchandang Di Shiliuci Quanguo Daibiao
Dahuishang de Baogao (在中国共产党第十六次全国代表大会上的报告) [Report at the 16th National
Congress of the Chinese Communist Party] available at Zhongguo Gongchandang Lici Quanguo Caibiao Dahui
Shuju Ku 中国共产党历次全国代表大会数据库 [Database of Past CCP National Congresses] (November 8,
2002), http://cpc.people.com.cn/GB/64162/64168/64569/65444/4429120.html).
18 Id.
19 Cao Guizhi (曹桂芝), Rang Shixin Zhe Cunbunanxing--Woguo Shehui Xìnyong Tixi Jianshe de Huigu yu
Zhanwang (让失信者寸步难行—我国社会信用体系建设的回顾与展望) [Let the Untrustworthy Be Unable to

Move a Single Step--Review and Prospect of China's Construction of the Social Credit System], HUNAN SHENG
SHEHUI ZHUYI XUEYUAN XUEBAO (湖南省社会主义学院学报) [J. HUNAN INSTITUTE OF SOC.] no. 17, 2016, at
82.
20 Jinrong Xinyong Xinxi Jichu Shujuku (金融信用信息基础数据库) [Basic Financial Credit Information
Database], http://www.pbccrc.org.cn/zxzx/zxgk/gywm.shtml (last visited Nov. 9, 2018).

21 Creemers, supra note 8, at 9.
financial markets, such as FICO scores in the United States. Underlying this plan was China’s
“shadow banking” problem. 22 Notwithstanding China’s robust economic growth since its
“Reform and Opening” policy, the country was struggling to establish an adequate credit-
scoring system comparable to those in liberal market economies.23 The increasing demands of
finance thus forced many small and medium-sized businesses, as well as individuals with
limited or no credit history, to borrow outside the formal banking institutions. 24 For the
government, one immediate response to the negative ramifications of informal financing was
to develop a credit system,25 which arguably paved the way for the current social credit system.
2. The Current Aggressive Concept Designed to Build Social Trust
The years following witnessed the expansion of the concept, as well as the scope of the
application of “social credit.” In 2006, China’s 11th Five-year Plan for National Economic and
Social Development (China’s all-important policy planning blueprint) discussed the need to
accelerate the construction of the SCS and identified the goal of improving the credit records
of “loans, tax payments, contract fulfillment and product quality.”26 This announcement was
followed by a 2007 notice by the General Office of the State Council, the first national guidance
on SCS,27 requiring government agencies to collect information not only about one’s financial
credit, but also about tax payments and contract defaults and to digitize data pertaining to
product quality. The notice further required government efforts to gradually integrate all such
information into a unified database.28 Meanwhile, the State Council established a coordinating
22 Dai, supra note 10. Broadly, the term shadow banking refers to “financial markets and institutions that
perform credit, maturity or liquidity transformation outside the formal banking system.” In China, this term may
include “a diverse range of financial products, trust and guarantee companies, brokerage firms, cooperative
associations, pawn shops, and informal lenders.” Dan Awrey, Law and Finance in the Chinese Shadow Banking
System, 48 CORNELL INT’L L.J 1, 3-4 (2015). For a complete account of China’s shadow banking issue, see
SHEN WEI, SHADOW BANKING IN CHINA: RISK, REGULATION AND POLICY 38-65 (2016).
23 Rachael Lu, Why There are No Credit Scores in China, FOREIGN POLICY (May 8, 2014),
http://foreignpolicy.com/2014/05/08/why-there-are-no-credit-scores-in-china/.
24 Id.
25 Because of its planned economy, China historically lacked the full-fledged credit systems common among
market economies. It was not until the 1990s that the Chinese government began to overhaul its credit system to
facilitate financing while controlling risks. Some of the prime examples of those reforms were the “Bank Credit
Registration Consultation Management Measures (Trial)” issued by China’s central bank in 1999. An earlier
initiative was the so-called “loan certificates.” See infra note 107 and accompanying text.
26 Guomin Jinji he Shehui Di Shiyi ge Wunian Guihua Gangyao (国民经济和社会发展第十一个五年规划
纲要) [Outline of the 11th Five-Year Plan for National Economic and Social Development] (Mar. 16, 2006),
available at www.gov.cn/ztzl/2006-03/16/content_228841.htm.
27 Guowuyuan Bangong Ting Guanyu Shehui Xinyong Tixi Jianshe de Ruogan Yijian (国务院办公厅关于社
会信用体系建设的若干意见) [Opinions of the General Office of the State Council concerning the Building of
a Social Credit System] (Mar. 23, 2007, promulgated by the General Office of the State Council, invalidated in
2015).
28 Id.
mechanism in the form of an inter-ministerial joint conference to plan and carry out initiatives
for the SCS (SCS Joint Conference).29 While government efforts still appeared tilted toward
“credit” in the commercial context,30 the meaning of “social credit” apparently began to breach
the boundaries of conventional financial credit.
The background for such upscale efforts of the government was considerable public
complaint regarding widespread, serious “trust-breaking” problems in society, including
shocking scandals of contaminated or counterfeit food and commonplace practices of hiding
assets to avoid tax liabilities, contract payments and the enforcement of court judgments,
among others. 31 The SCS has been deemed to be able to address the “trust” problem by
disciplining what the system considers odious behavior and creating incentives for positive
behavior.32 As one scholar notes, “credit” (xinyong) in the Chinese language is associated with
the moral virtues of trustworthiness and integrity.33 This is aligned with the meaning of “credit”
in English, which stands for a reputation for sound character or qualities.34 Additionally the
word “social” (shehui) captures social interactions the government seeks to monitor and
regulate.35
The scheme culminated in the SCS Plan issued in June 2014 by the State Council (2014
SCS Plan).36 In this comprehensive and aggressive document, the Chinese government lays out
a roadmap for building a social credit megaproject aimed at boosting society’s
“honesty/integrity awareness” (chengxin yishi) and “credit standards” (xinyong shuiping).37
The Plan identifies four priority areas that encompass virtually every aspect of one’s social life:
(1) government matters/governance; (2) business; (3) society; and (4) the judiciary. Chinese
policymakers view social credit as a strategic plan for the “socialist market economy system
and the social governance system.”38 As envisaged, the credit records of “all members of the
society” will be covered under the full-fledged “online credit infrastructure.”39 Following the

30 Id.
31 See e.g., Enforcement of Civil Judgments: Harder than Reaching the Sky, CHINA LAW AND GOVERNANCE
REVIEW, Issue No. 2, June 2004, available at www.chinareview.info/issue2/pages/legal.htm; Jim Yardley &
David Barboza, Despite Warnings, China’s Regulators Failed to Stop Tainted Milk, N.Y. TIMES (Sept. 26,
2008), https://www.nytimes.com/2008/09/27/world/asia/27milk.html; Xie Yu, Choi Chi-yuk, Yujing Liu,
Chinese Authorities Crack Down on Tax Dodges, Illegal Capital Remittances by Celebrities, S. CHINA
MORNING POST (Aug. 13, 2018), https://www.scmp.com/business/china-business/article/2159456/chinese-
authorities-crack-down-tax-dodges-illegal-capital.
33 Dai, supra note 10, at 16.
34 THE FREE DICTIONARY, https://www.thefreedictionary.com/credit (last visited Aug. 5, 2018).
35 Dai, supra note 10, at 16.
37 Id.
38 Id.
39 Id.
2014 SCS Plan, both central government agencies and local governments have issued a variety
of legal and policy documents within their mandate, comprising an expanding regulatory
network under the SCS.40
What worries many observers, however, is China’s great ambition to move well beyond
collecting and analyzing people’s financial credit records. As the 2014 SCS Plan makes clear,
social credit is part and parcel of China’s “social governance,”41 under which a wide range of
activities are included and categorized to profile individuals and entities as “trust-keeping” and
“trust-breaking.” We now turn to these core features.
B. How the System Operates: The Four Mechanisms of Social Credit
The operation of the SCS relies on a number of important and distinctive features—
information gathering, information sharing, labeling and joint sanctions—which together
constitute four essential elements of the system. We discuss their form and substance in order.
1. Information Gathering: Comprehensive Bureaucratic Networks Targeting “Trust-

Breaking” Behavior
The first step accomplished under the SCS is the identification of each and every person
and business through the assignment of a “social credit unified code” (“SC Unicode”).42 For
citizens, the SC Unicode is the 18-digit code on their identity card, which further links to
personal data, including income, tax and social insurance payments. For corporations and other
social groups, various numbering systems employed in the past for different purposes (such as
commercial permission, organization registration and taxation) have now been integrated into
one unified 18-digit number in the SCS comprising all financial, registration and tax
For a survey of relevant legal and policy documents, see CHINA LAW TRANSLATE,
40
https://www.chinalawtranslate.com/social-credit-documents/ (last visited Dec. 6, 2018).

42 Guanyu Shishi <Guowuyuan Jigou Gaige he Zhineng Zhuanbian Fang’an> Renwu Fengong de Tongzhi
(关于实施<国务院机构改革和职能转变方案>任务分工的通知) [Notice on Dividing the Tasks for

Implementation of the Plan for Institutional Reform and Functional Transformation of the State Council]
(promulgated by General Office of the St. Council, Mar. 26, 2013); Guanyu Zai Banli Xiangguan Yewu Zhong
Shiyong Tongyi Shehui Xinyong Daima de Tongzhi (关于在办理相关业务中使用统一社会信用代码的通知)
[Notice of the General Office of the National Development and Reform Commission on the Use of Unified
Social Credit in Handling Relevant Matters] (promulgated by the General Office of the Nat’l Dev. and Reform
Comm., Mar. 1, 2018); Unified Social Credit Code Registration Certificates Issued to Social Organizations,
Cʜɪɴᴀ Dᴇᴠ’ᴛ BʀɪᴇF (Jan. 6, 2016), http://www.chinadevelopmentbrief.cn/news/unified-social-credit-code-
registration-certificates-issued-to-social-organizations/.
information. 43 The SC Unicode serves as an index to store and locate individualized

information.
What type of information is collected? The primary goal of the SCS to date is to single
out people and organizations whose acts are considered to be “breaking trust” (shixin xingwei)
by breaching certain legal rules, government regulations or industry standards.44 The system
therefore seeks to collect information about such breaches as a priority, as well as other
ordinary records regarding administrative punishments and administrative approvals. In
addition to these data, contraventions of certain legal rules, regulations and industry standards
are also recorded, including the failure to honor a court decision and civil penalties, such as
safety violations and even traffic violations. 45 Individuals and organizations found to have
relevant violations—that is, those that are deemed “trust-breaking” (shixin)—will be placed on
“Blacklists” and those deemed “trust-keeping” (shouxin) will be placed on “Redlists.” This
publicized data represents the core of the “credit information” (xinyong xinxi) of the SCS,
which serves as a substantive basis for reputation-driven sanctions, as illustrated below.
At first glance, the SCS is initially reminiscent of the party-state’s traditional practice of
keeping secret files on individuals (dang’an) before the digital era,46 a practice similar to that
found in Eastern Europe before democratization. 47 In China, such a file, much of which
consisted of reports from police and informants, could significantly undermine a citizen’s
upward social mobility throughout his or her entire life, including the chance of being hired,
43 Notice on Clarifying Issues Concerning the Use of Unified Social Credit Code by Social Organizations and
Other Tax Payers and the Handling of Tax Registration (promulgated by State Administration of Taxation,
Effective March. 15, 2016), http://www.aqsiq.gov.cn/xxgk_13386/ywxx/cpzl/201312/t20131205_389972.htm;
State Council, New Social Credit Code System to Increase Administrative Efficiency, ENGLISH.GOV.CN (June 17,
2015), english.gov.cn/policies/latest_releases/2015/06/17/content_281475129090642.htm.
44 See infra Part II.B.3.
45 Jiaotong Guanli Xingui Weifa Jiang Ru Zhengxin Yice Weifa Keneng Chuchu Shouxian (交通管理新规
违法将入征信一次违法可能处处受限) [Traffic Violations Will Be Incorporated into Credit Information; One
Violation May Result in Comprehensive Restrictions], XINHUA NEWS (Nov. 10, 2016),
www.xinhuanet.com/auto/2016-11/10/c_1119883939.htm. See also Horsley, supra note 11 (“The government
does collect regulatory information on all companies and social organizations, and different departments
maintain their own dossiers on individuals. Some of this information is made public, and the social credit
system is intended to create a culture of greater trust and creditworthiness in society as a whole. However, at
present the system prioritizes compiling and sharing public record-type data such as licensing, other regulatory
information and adverse court decisions on adults in key areas. Unless people are sole proprietors or company
representatives, have taken a loan or credit card, violated the law or defaulted on a court judgment, they’re
unlikely to be in the social credit database.”)
46 Nicolas D. Kristof, Beijing Journal; Where Each Worker Is Yoked to a Personal File, Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs,
Mar. 16, 1992, available at https://www.nytimes.com/1992/03/16/world/beijing-journal-where-each-worker-is-

yoked-to-a-personal-file.html (last visited July 28, 2018).
47 Justin Huggler, East German Stasi Files Open to Public Online for First Time, Tʜᴇ Tᴇʟᴇɢʀᴀᴘʜ, Jan. 9,
2015, available at https://www.telegraph.co.uk/news/worldnews/europe/germany/11336288/East-German-Stasi-

files-open-to-public-online-for-first-time.html (last visited Aug. 5, 2018).
promoted or even becoming a Communist party member.48 No institutional channel existed to

allow access to or correction of the information in one’s file.49
While this insight is useful to some extent, it should be noted that the SCS is a much more
far-reaching megaproject than any of the earlier attempts. Today, the Internet, cloud storage
and other ICT advances have enabled the Chinese government to collect and integrate a broad
spectrum of information concerning certain “trust-breaking” behavior of the world’s largest
population (1.4 billion), as well as numerous business entities and social groups, in a rapidly
changing society. The regulatory activities of various bureaucratic agencies at different levels
help to generate massive numbers of records about the behavior and interactions of people and
groups. Despite this complex web of information collection and the use of personal information,
there are few constraints on the government.50
2. Information Sharing: Breaking Down “Credit Information Barriers”
Another important mechanism of the SCS is the active integration and sharing of credit
information. As part of its strategic plan, the Chinese government aims to tear down what it
refers to as “credit information barriers”51 by combining dispersed information across different
regulatory and judicial systems under the aegis of one unified platform. All credit information
collected by the government is now uploaded to a “National Credit Information Sharing
Platform” (which has operated since October 2015)52 and shared among government agencies
(a total of 37 ministries and commissions, including courts, tax departments, police, civil affairs,
health and environment, treasury and finance authorities and custom agencies etc.) plus local
governments nationwide.53 Information can be searched using a SC Unicode and is shared with
48 Lena H. Sun, China’s Secret Personnel Files: A Tool of Communist Control, WASHINGTON POST (Mar. 17,
1992), https://www.washingtonpost.com/archive/politics/1992/03/17/chinas-secret-personnel-files-a-tool-of-
communist-control/8f0e2fce-43a2-42fa-a22c-d2578a94ba28/?utm_term=.4bc9ac4a5fd2.
49 Id.
50 See infra Part IV.A.
51 Guanyu Jiakuai Tuijin Shixin Bei Zhixing Ren Xinyong Jiandu, Jingshi he Chengjie Jizhi Jianshe de Yijian
(关于加快推进失信被执行人信用监督、警示和惩戒机制建设的意见) [Opinions on Accelerating the

Development of a System of Credit Supervision, Warning and Sanctions for Trust-Breakers on the Defaulters'
Lists] (promulgated by the General Office of the Communist Party of China’s Cent. Comm. and the General
Office of the St. Council, Sep. 25, 2016), available at http://www.xinhuanet.com/politics/2016-
09/25/c_1119620719.htm.
52 Guojia Fagai Wei: Quanguo Xinyong Xinxi Gongxiang Pingtai yi Guiji Xinyong Xinxi Chaoguo 107 Yi
Tiao (国家发改委：全国信用信息共享平台已归集信用信息超过 107 亿条) [National Development and

Reform Commission: More Than 10.7 Billion Pieces of Credit Information Have Been Gathered on the National
Credit Information Sharing Platform], Nov. 15, 2017,
https://www.creditchina.gov.cn/toutiaoxinwen/201711/t20171120_96166.html.
53 2017 Nian Shehui Xinyong Tixi Jianshe Buji Lianxi Huiyi Zaijing Zhaokai (2017 年社会信用体系建设部
际联席会议在京召开) [The Inter-Ministerial Joint Conference on the Construction of Social Credit System in
2017 was held in Beijing], May 6, 2017 http://www.ndrc.gov.cn/gzdt/201705/t20170516_847618.html.
the goals of imposing “joint sanctions” (lianhe chengjie) on those deemed “trust-breaking” and
offering “joint rewards” (lianhe jili) for those deemed “trust-keeping.”54
The inter-ministerial SCS Joint Conference plays a crucial role in this context. Led by the
National Development and Reform Commission (NDRC) and the PBoC, this Conference
consists of over 30 government agencies and Communist Party organizations, including the
Central Discipline Inspection Committee, Central Propaganda Department, Central Political-
Legal Committee and Central Office for the Construction of a Spiritual Civilization. 55
Members of the inter-ministerial SCS Joint Conference hold regular meetings to coordinate
initiatives and cooperate in the sharing of information and implementation of sanctions.
The government has also designated a specific website, “Credit China,”56 as a one-stop
shop for individuals and businesses to check their own credit information, as well as a place
where public credit information is stored and maintained by members of the SCS Joint
Conference. In addition to ordinary credit information, “Credit China” prominently features
“Blacklists”57 and “Redlists,” as noted above.58
Apart from the unified national platforms sponsored by the government (the “National
Credit Information Sharing Platform” and “Credit China”), various institutions and
organizations maintain their own systems. 59 The PBoC has run the non-profit “Credit
Reference Center” (which targets financial data and issues credit reports) since 2006.60 Many
provincial governments have also created their own “credit” websites to promote the SCS and
to share data with agencies at the provincial, municipal and county levels,61 such as “Honest
54 Guanyu Jianli Wanshan Shouxin Lianhe Jili he Shixin Lianhe Chengjie Zhidu Jiakuai Tuijin Shehui
Chengxin Jianshe de Zhidao Yijian (关于建立完善守信联合激励和失信联合惩戒制度加快推进社会诚信建
设的指导意见) [Guiding Opinions concerning Establishing and Perfecting Incentives for Promise-keeping and
Joint Sanction Systems for Trust-Breaking and Accelerating the Construction of Social Credit] (promulgated by
St. Council, May 30, 2016). An unofficial translation is available at
https://chinacopyrightandmedia.wordpress.com/2016/05/30/state-council-guiding-opinions-concerning-
establishing-and-perfecting-incentives-for-promise-keeping-and-joint-punishment-systems-for-trust-breaking-
and-accelerating-the-construction-of-social-sincer/.
55 Shihui Xinyong Tixi Jianshi Buji Lianxi Huiyi Chengyuan Danwei (社会信用体系建设部际联席会议成
员单位) [Members of the Inter-ministerial Joint Conference for the Construction of the Social Credit System],
CREDIT CHINA, www.creditchina.gov.cn/home/?navPage=0 (last visited Aug. 5, 2018).
56 CREDIT CHINA, https://www.creditchina.gov.cn/ (last visited Nov. 14, 2018).
57 Heimingdan Jiansuo (黑名单检索) [Blacklist Search], CREDIT CHINA,
https://www.creditchina.gov.cn/xinyongfuwu/shixinheimingdan/ (last visited Nov. 9, 2018).

58 Hongmingdan Jiansuo (红名单检索) [Redlist Search], CREDIT CHINA,
https://www.creditchina.gov.cn/xinyongfuwu/shouxinhongmingdan/ (last visited Nov. 9, 2018).

59 Mirjam Meissner, China’s Social Credit System: A Big-data Enabled Approach to Market Regulation with
Broad Implications for Doing Business in China, MERCATOR INST. FOR CHINESE STUD. (May 24, 2017), at 7.
60 See infra note 107.
61 See, e.g., Sichuansheng Shehui Xinyong Tixi Jianshe Gongzuo Shishi Fang’an (四川省社会信用体系建设
工作实施方案) [Measures to Implement the Construction of the Social Credit System in Sichuan Province]
(promulgated by the Sichuan Provincial People’s Gov’t, effective Aug. 25, 2016), available at
http://zcwj.sc.gov.cn/xxgk/NewT.aspx?i=20160901151058-663478-00-000.
Shanghai.” 62 In addition to government schemes, various private service providers operate

commercial credit systems,63 and some of them team up with government agencies to form
public-private partnerships. On “Credit China,” one can find links to the websites of all these
systems,64 building a dense network of information.
3. Labeling: Blacklisting, Naming and Shaming
The SCS claims to address the “trust” deficit in society. Accordingly, of utmost interest
to the government is information concerning breaches of “trust.” The labeling of behavior that
“breaks trust” is a prominent component of the SCS.
The 2014 SCS Plan offers a laundry list of problems caused by “trust-breaking behavior”
in the four targeted areas: government, business, society and the judiciary. In general, such
“trust-breaking behavior” refers to certain types of violations of law and regulations (such as
official corruption and commercial fraud) and even industry standards (such as violations of
codes of conduct of unions and professional associations). 65 Such behavior, however, is
vaguely defined and hence triggers a great deal of legal uncertainties. For instance, “spreading
rumors” on the Internet is also deemed “trust-breaking.”66 Other behavior that may not violate
any laws or regulations is not spared under the SCS. Rejecting university admission after
passing the national exam, for example, is seen as a “trust-breaking” act in Henan Province.67
In 2016, the State Council issued a Guiding Opinion68 that seeks to impose joint sanctions
by multiple agencies on “serious trust-breaking behavior” in certain priority areas. This is
broadly defined to include (1) “behavior that seriously damages people’s health, lives and
security;” (2) “behavior that seriously damages the market order of fair competition and normal
order in society;” (3) “refusal to fulfill legal obligations, thereby seriously affecting the
信用中国(上海) [HONEST SHANGHAI] http://www.shcredit.gov.cn/ (last visited Nov. 9, 2018) (This

62
address may only be accessible through Chinese IP addresses). See also Shanghai: Rang Shuju “Pao” Qilai
Guanzhu Shixin Qiye (上海：让数据“跑”起来管住失信企业) [Shanghai: Let the Data "Run" and Control the
Untrustworthy Enterprise], SHANGHAI OBSERVER (Jan. 31, 2018), https://www.jfdaily.com/journal/2017-01-
31/getArticle.htm?id=242470.
63 See infra Part III.
64 Geren Xinyong Guanlian Xinxi Chaxun (个人信用关联信息查询) [Personal Credit Related Information
Inquiry], CREDIT CHINA, http://www.creditchina.gov.cn/gerenxinyong/?navPage=14 (last visited Aug. 4, 2018).

66 Id.
67 [Chengxin Jianshe Wanli Xing] Henan Chuzhao: Fang Gaoxiao “Gezi” de Shixin Kaosheng Jiang Shou
Chengjie ([诚信建设万里行] 河南出招：放高校“鸽子”的失信考生将受惩戒) [[Integrity Construction Miles]

Henan's Move: the Untrustworthy Applicants Who Put Colleges and Universities Up Will be Disciplined],
CREDIT CHINA,
http://www.creditchina.gov.cn/zhuanxiangzhili/difangzhuanxiangzhilijingyan/201807/t20180716_120584.html
(last visited Aug. 4, 2018).
68 Guiding Opinions Concerning Establishing and Perfecting Incentives for Promise-Keeping and Joint
Sanction Systems for Trust-Breaking and Accelerating the Construction of Social Credit, supra note 54.
credibility of judicial and administrative organs;” and (4) “refusal to fulfill national defense
obligations.”69 “Serious trust-breaking behavior” also leads to inclusion on the “Blacklist,”
which results in joint sanctions.70
Contrasted with the Blacklists are the so-called “Redlists,” which identify those people
and organizations deemed to be in remarkable compliance with legal rules and other social
norms.71 As mentioned above, these people are labeled as “trust-keeping.” There is no single
unified standard for such lists, and agencies in charge of various sectors have their own Redlists.
Examples include taxpayers who are rated as “A Class,” businesses that pass verification of
customs authorities and even young volunteers. 72 “Redlist” status typically brings about
benefits such as fast-track government services, less cumbersome bureaucratic procedures and
lower inspection frequencies. In addition to agencies in the central government, many local
governments are experimenting innovatively with the use of Redlists. In Rongcheng and
Shandong, for instance, people who “care for aged parents” will receive a good rating in the
local government’s database. 73 Shaanxi Province’s “Youth Redlist” offers prize money for
youngsters who help out in their neighborhood, among other criteria.74
However, more important to the SCS is the Blacklist. At present, different sectors—such
as judicial, tax, customs, security supervision, environmental protection, safety inspection and
transportation authorities, to name a few—maintain separate Blacklists for “serious” violations
of relevant rules in their fields.75 For business entities that contravene relevant rules, not only
69 Id.
71 Guiding Opinions Concerning Establishing and Perfecting Incentives for Promise-Keeping and Joint
Sanction Systems for Trust-Breaking and Accelerating the Construction of Social Credit, supra note 54;
Guanyu Jiaqiang he Guifan Shouxin Lianhe Jili he Shixin Lianhe Chengjie Duixiang Mingdan Guanli
Gongzuo de Zhidao Yijian (关于加强和规范守信联合激励和失信联合惩戒对象名单管理工作的指导意见)
[Guiding Opinions on Strengthening and Regulating the Joint Management of Trustworthiness and
Untrustworthy Joint Disciplinary Objects] (promulgated by Nat’l Dev. & Reform Com’n & People’s Bank of
China, Oct. 30, 2017), available at http://www.ndrc.gov.cn/zcfb/gfxwj/201711/t20171103_866289.html.
72 Qiu Haifeng & Wang Qingqing (邱海峰&王青青), Xinyong Honghei Mingdan Zheyang Yingxiang
Shenghuo (信用红黑名单这样影响生活) [This is How Credit Red Blacklist Influences Life], PEOPLE.CN (July
11, 2018 4:27 PM), http://society.people.com.cn/n1/2018/0711/c1008-30138986.html.
73 Mareike Ohlberg, Shazeda Ahmed and Bertram Lang, Central Planning, Local Experiments: The Complex
Implementation of China’s Social Credit System, MERCATOR INST. FOR CHINESE STUD. (Dec. 12, 2017),
https://www.merics.org/sites/default/files/2017-
12/171212_China_Monitor_43_Social_Credit_System_Implementation.pdf., at 3.
74 Shanxi Shou Pi Qingnian Shouxin Lianhe Jili “Hong Mingdan” Chulu (陕西首批青年守信联合激励“红
名单”出炉 [Shaanxi's First Batch of Youth Credit Cooperative Incentive "Redlist" Released], CREDIT CHINA,
(Dec. 20, 2017),
http://www.creditchina.gov.cn/xinyongfuwu/shouxinhongmingdan/shouxinhongmingdanzuixindongtai/201712/t
20171220_101194.html.
75 Notable lists include, among others, “the defaulters’ list” issued by the Supreme People’s Court, serious tax
violations, businesses whose commercial registration is revoked, businesses that violate customs regulations and
people and businesses in the transportation industry that violate speed and load limitations etc. Liuyuefen Xin
Zeng Shixin Lianhe Chengjie Duixiang Gongshi Ji Qingkuang Shuoming (6 月份新增失信联合惩戒对象公示
the organizations themselves, but also their legal representatives and personnel with “direct
responsibility” are placed on the Blacklist and sanctioned accordingly. As mentioned, these
lists are shared with other central government agencies and local governments on the “National
Credit Information Sharing Platform” and “Credit China.”
The most prominent and well-developed Blacklist that lies at the heart of the increasingly
expansive SCS is probably “the Defaulters’ List” issued by the Supreme People’s Court (SPC).
In July 2013, the SPC issued a regulation (SPC Defaulters Rule) pursuant to the revised 2012
Civil Procedure Law 76 requiring courts nationwide to produce “Defaulters’ Lists” to track
down those who fail to comply with a court judgment.77 The Defaulters’ Lists are uploaded to
the SPC’s public database and shared on national websites.78 Under the SPC Defaulters Rule,
all courts are required to share their Defaulters’ Lists with “relevant government departments,
financial supervisory authorities, financial institutions, public institutions undertaking
administrative duties and trade associations.”79 Again, those on the lists may be slapped with
sanctions in a variety of areas.80
In addition, the SPC Defaulters Rule allows for the use of naming and shaming as a
strategy to ensure compliance with court decisions. For example, when a government official
is placed on the list, the default information will be provided by the courts to the agency he or
she works for and other “relevant departments.” 81 The practice of collecting data about
individuals and sharing it with their work units or organizations closely mirrors the traditional
dang’an regime, as noted above. Furthermore, in some cases courts publicize such individuals’
及情况说明) [Publicizing New Defaulting Subjects in June: Notice and Circumstance Explanations], (Jul. 04,
2018), http://www.gov.cn/fuwu/2018-07/04/content_5303334.htm.
76 Minshi Susong Fa (民事诉讼法) [Civil Procedure Law] (promulgated by the Standing Committee of the
Nat’l People's Cong., June 27, 2017, effective July 1, 2017), art. 255, available at
http://www.npc.gov.cn/npc/xinwen/2017-06/29/content_2024892.htm.
77 Guanyu Gongbu Shixin Beizhixingren Mingdan Xinxi de Ruogan Guiding (关于公布失信被执行人名单
信息的若干规定) [Provisions on Publishing the Judgment Defaulter List], (promulgated by the Supreme
People’s Court, Feb. 28, 2017, effective May 1, 2017), available at http://www.court.gov.cn/fabu-xiangqing-
37172.html. [hereinafter SPC Defaulters Rule]. The Defaulters’ Lists are readily available via the platform
launched through Supreme People’s Court website. See Zuigao Renmin Fayuan Wang Kaitong Gongbu yu
Chaxun Pingtai Shixin Bei Zhixing Renmingdan Xinxi Suishi Kecha (最高人民法院网开通公布与查询平台
失信被执行人名单信息随时可查) [Defaulters’ Lists Publicly Available Through Supreme People’s Court’s
Website], CHINACOURT.ORG (Oct. 24, 2013),
https://www.chinacourt.org/article/detail/2013/10/id/1112516.shtml.
78 Zhongxuanbu, Zuigao Fa, Yinjianhui Xiafa Guanyu Chuangjian Wanshan Shixin Bei Zhixing Ren Puguang
Píngtai de Tongzhi (中宣部、最高法、银监会下发关于创建完善失信被执行人曝光平台的通知) [The

Publicity Department of the Communist Party of China, the Supreme People's Court and the China Banking
Regulatory Commission Issued a Notice on the Establishment of a Platform for the Implementation of the
Perfected Untrustworthy Enforced Person], XINHUA NEWS (Oct. 10, 2017), http://www.xinhuanet.com/2017-
10/10/c_1121778065.htm.
79 SPC Defaulters Rule, supra note 77, art. 8.
81 SPC Defaulters Rule, supra note 77, art. 8.
names and photos, along with other personal data, on newspapers, TV or even street billboards
and LED screens. Some courts work with local telecommunications companies to activate a
special ringtone for blacklisted people that will let callers know the person has been
blacklisted.82
By the end of 2017, 9.59 million people had been placed on the Defaulters’ List in the
SPC database.83 According to the SPC, its Blacklist has delivered desirable outcomes. So far,
over 2.2 million people listed have either made the payments as per the judgment or settled
with the plaintiff.84
In addition to the Blacklist and Redlist techniques, local governments have experimented
with scoring projects, which appear to be an even more zealous form of the SCS. The Shanghai
Municipal Government, for instance, launched a mobile phone app called “Honest Shanghai,”
in which voluntary participants can input their personal data and promptly receive their ratings
in the government system, ranging from “very good” to “good” to “bad.”85 Another example
is Rongcheng in Shandong Province, where each resident is given a numerical score of up to
1,000 points.86 Any act that is undesirable in the eyes of the local government (such as traffic
violations) will bring about a deduction of points. Yet, these scoring projects have not been
implemented on a nationwide-scale, as the core of the current SCS is still connected to the use
of Blacklists and Redlists.
4. Joint Sanctions: “Trust-Breaking Here, Restrictions Everywhere”
For those on the Blacklists, the central government’s policy documents have established
a wide range of joint sanctions that force compliance. The central idea promoted by the current
leadership is “trust-breaking here, restrictions everywhere” (yichu shixin, chuchu shouxian).87
For example, failing to comply with a court decision will result in multiple punishments that
may have nothing to do with the original form of wrongdoing whatsoever. More specifically,
the defaulter’s personal information is publicized together with the list, and default status leads
to serious restrictions in areas including “government procurement, bid tendering,
82 Ringtone of Shame Rings Bell for Debtors in East China, CHINA DAILY (July 30, 2017),
http://www.chinadaily.com.cn/china/2017-07/30/content_30295804.htm.
83 Chinese Courts Blacklist Nearly 9.6 Min Defaulters, XINHUA NEWS (Jan. 13, 2018),
http://www.xinhuanet.com/english/2018-01/13/c_136893488.htm.
84 China Improves Social Credit System, XINHUA NEWS (Mar. 19, 2018),
http://www.xinhuanet.com/english/2018-03/19/c_137050692.htm.
85 Ohlberg, Ahmed and Lang, supra note 73, at 12.
86 Id.
87 Opinions on Accelerating the Development of a System of Credit Supervision, Warning and Sanctions for
Trust-Breakers on the Defaulters' Lists, supra note 51.

administrative approvals, government support, financing credit, market access and

determination of qualifications.”88
The goal of “trust-breaking here, restrictions everywhere” is made possible through
institutionalized coordination among government agencies and Communist Party organizations
that are members of the SCS Joint Conference. In particular, memorandums of understanding
(MoUs) ensuring cooperation are signed by members to coordinate joint sanctions. These
MoUs target “trust-breaking” behavior in a multitude of fields, including inter alia default on
court judgments, tax matters, finance, customs, insurance, environmental protection,
production safety, real estate, charity organizations, transportation construction, economic
cooperation with foreign companies and even marriage registration.
Each field has its own MoU, which is endorsed by relevant government agencies
responsible for enforcing the joint sanctions within their mandate. For instance, the MoU for
the SPC’s defaulters’ list, “MoU Concerning Imposing Joint Sanctions on Trust-Breaking
Persons Non-Compliant with Court Enforcement,” is signed by a total of 44 institutions,
including government agencies (such as NDRC, SPC and the PBoC, etc.), Communist Party
organizations (including the Central Organization Department, Central Propaganda
Department, State Commission Office for Public Sector Reform and Central Office for the
Construction of a Spiritual Civilization), government-organized non-governmental
organizations (including the All-China Federation of Industry and Commerce) and the China
Railway Company. As of November 2018, there have been 38 MoUs, most of which facilitate
joint sanctions (only a few offer “joint rewards” for “trust-keeping behavior”).89
While the number of MoUs continues to grow, some commonly used joint sanctions for
“serious trust-breaking behavior” can already be discerned from the existing regime. In
addition to naming and shaming, a violation in one area can trigger all or some sanctions in the
following categories.
The first group is targeted at business and legal persons, including measures to (1)
intensify relevant government supervision and frequency/stringency of inspection and (2) bar
or prevent their access or opportunities in the following areas: (a) government approvals and
SPC Defaulters Rule, supra note 77, art. 8.

88
For a survey of the memoranda among central government agencies and other organizations, see Lianhe
89
Jili Chengjie de Hezuo Beiwanglu (联合激励惩戒的合作备忘录) [Memoranda on Joint Rewards and

Sanctions], CHINA LAW TRANSLATE, https://www.chinalawtranslate.com/social-credit-documents/ (last visited
Nov. 25, 2018). Local government agencies have signed similar memoranda at the local level. See Difang
Lianhe Jiangcheng Beiwanlu (地方联合奖惩备忘录) [Local Memoranda on Joint Rewards and Sanctions],
CREDIT CHINA, http://www.creditchina.gov.cn/lianhejiangcheng/lianhejiangchengbeiwanglunew/ (last visited
Dec. 6, 2018).
qualifications, (b) government subsidies and loans and (c) government bidding and other
projects.
The second group is designed to restrict individuals from (1) serving as civil servants or
high-level positions in the private sector (such as company representatives, board members,
managers and high-level employees), (2) obtaining certain professional qualifications and
licenses (such as doctors, lawyers, accountants and social workers etc.) and (3) engaging in
“high consumption behavior unnecessary to the maintenance of life and work” (such as
acquiring real estate, buying cars, booking vacations and highly rated hotels and taking planes
or higher classes of trains).90 Worse still, joint sanctions in the case of SPC defaulters can even
implicate their children—people blacklisted by the SPC are prevented from sending children
to private schools that cost more and are considered to offer better quality of education.91
Local pilot projects have also adopted meddlesome sanctions. In the pilot project in
Rongcheng, for instance, depending on their numeric scores, people are punished by additional
bureaucratic requirements (or rewarded with preferential treatment) when they deal with the
92
government. As the central and local governments continue experimenting with
miscellaneous sanctions, joint sanctions may become increasingly interconnected, cumulative
and intrusive.
Albeit less developed, “joint incentives” are another peculiar mechanism worth noting.
People who have made “prominent contributions” in the form of donations, for example, may
be classified as “trust-keeping donors” and benefit from a number of convenient procedures
provided by the government, including a fast-track process for obtaining household registration
(hukou) or resident status in cities (which is an important status that has social implications in
90 China’s National Development and Reform Commission, along with other government agencies, have
issued notices that prevent certain “serious trust-breaking people” from traveling by train and plane (“travel
restricted list”). See Guanyu Zai Yiding Qixiannei Shidang Xianzhi Teding Yanzhong Shixinren Chengzuo
Huoche Tueidong Shehui Xinyong Tixi Jianshe de Yijian (关于在一定期限内适当限制特定严重失信人乘坐
火车推动社会信用体系建设的意见) [Opinion on Appropriate, Fixed-term Restrictions on Certain Seriously
Untrustworthy People in Using Railway Transportation to Promote the Construction of the Social Credit
System] (promulgated by the Nat’l Dev. & Reform Comm’n, effective Mar. 2, 2018), available at
http://www.ndrc.gov.cn/zcfb/zcfbtz/201803/t20180316_879618.html.; Guanyu zai Yiding Qixiannei Shidang
Xianzhi Teding Yanzhong Shixinren Chengzuo Minyong Hangkongqi Tueidong Shehui Xinyong Tixi Jianshe
de Yijian (关于在一定期限内适当限制特定严重失信人乘坐民用航空器推动社会信用体系建设的意见)
[Opinion on Appropriate, Fixed-term Restrictions on Certain Seriously Untrustworthy People in Using Air
Transportation to Promote the Construction of the Social Credit System] (promulgated by the Nat’l Dev. &
Reform Comm’n, effective Mar. 2, 2018), available at
http://www.ndrc.gov.cn/zcfb/zcfbtz/201803/t20180316_879624.html.
91 Guanyu dui Shixin Beizhixingren Shishi Lianhe Chengjie de Hezuo Beiwanglu (关于对失信被执行人实
施联合惩戒的合作备忘录) [Memorandum of Cooperation Concerning Imposing Joint Sanctions on Trust-

Breaking Judgement Defaulters] (signed by the National Development and Reform Commission and the
Supreme People's Court etc., effective Jan. 20, 2016), art. 3(23), available at
https://www.creditchina.gov.cn/zhengcefagui/zhengcefagui/201709/t20170916_43853.html.
China).93 Young people who volunteer and accrue three straight years of good records can
similarly be labeled “5A Young Volunteers,” who will be blessed with a preferential status in
admissions to schools, party organizations and business entities. Companies operated by “5A
Young Volunteers” will also be granted access to expedited procedures relating to tax matters,
customs and bond issuance.
C. Spillover: Extraterritorial Effects
Another salient feature of the SCS is its spillover effects across nationality and border.
While the above-discussed four mechanisms seem to have a domestic focus, the impact of
social credit does not stop at China’s border. First, foreign enterprises in China are subject to
general business registration and sectoral regulations that underscore the operation of the SCS.
In general, all foreign entities seeking to establish a presence in China, whether they are
subsidiaries or representative offices, must apply to the relevant authorities for business
licenses before carrying on activities. 94 During the course of business registration, foreign
entities will receive an SC Unicode and become subjects of the SCS. Together with an open-
ended general requirement that obliges all foreign entities to comply with “laws and regulations
in China” and to not harm “the social public interest” and “national security” of China,
assigning foreign entities SC Unicodes allows the Chinese government to secure a regulatory
hook over these entities and shape their behavior to fit its interests.
In addition to general business registration, the Chinese government has rolled out various
sectoral rules applicable to foreign enterprises. For example, the Civil Aviation Industry Credit
Management Measures (Trial Implementation), effective January 2018, explicitly include
“foreign airline companies” in the SCS; the activities of these foreign airlines are therefore
monitored and labeled as “trust-breaking” or “serious trust-breaking,” as the case may be.95
This rule applies to both “enterprises” and “individuals” who carry out civil aviation activities
93 Spencer Sheehan, China's Hukou Reforms and the Urbanization Challenge, THE DIPLOMAT (Feb. 22,
2017), https://thediplomat.com/2017/02/chinas-hukou-reforms-and-the-urbanization-challenge/.
94 Waizi Qiye Fa (外资企业法) [Wholly Foreign-Owned Enterprise Law] (promulgated by Standing
Committee of Nat’l People’s Cong., Sep. 3, 2016; effective Oct. 1, 2016) art. 6-7, available at
http://www.npc.gov.cn/npc/xinwen/2016-09/06/content_1997114.htm; Waiguo Qiye Changzhu Daibiao Jigou
Dengji Guanli Tiaoli (外国企业常驻代表机构登记管理条例) [Regulation on the Administration of
Registration of Resident Representative Offices of Foreign Enterprises](promulgated by State Council, Nov. 19,
2010, effective July 18, 2013) art. 4, available at https://advance.lexis.com/api/document/collection/statutes-
legislation/id/5PF8-4JC0-01PR-32K7-00000-
00?cite=2013%20China%20Law%20LEXIS%201830&context=1000516.
95 Guanyu Yinfa “Minhang Hangye Xinyong Guanli Banfa (Shixing)” de Tongzhi (关于印发《民航行业信
用管理办法(试行)的通知》) [Notice on Printing and Distributing the Civil Aviation Industry Credit
Management Measures (Trial)] (promulgated by the Civil Aviation Admin., Nov. 6, 2017, effective Jan. 1,
2018), available at http://www.caac.gov.cn/XWZX/MHYW/201711/t20171114_47546.html.
in China or operate outside China but are otherwise subject to China’s approval.96 It is clear
that on the one hand, foreign airlines without a local presence in China can still be regulated
by the SCS so long as they require an approval from the regulatory body. The Chinese
government can leverage such sectoral-based approval to bring foreign airlines under the aegis
of the SCS, regardless of their presence or business registration. The Civil Aviation Industry
Credit Management Measures list 14 prescribed scenarios that may constitute “trust-breaking”
or “serious trust-breaking,” while maintaining a catch-all clause granting regulators broad
discretion in determining a particular act to be “serious trust-breaking” in relation to the breach
of other laws, regulations or rules.97 Furthermore, under these Measures, if a foreign airline
breaches any of the prescribed duties, its “legal representatives, principal person in charge and
other staff with direct responsibilities” would also be recorded as having engaged in “serious
trust-breaking.”98 The fact that foreigners have no Chinese national ID is scarcely a technical
bar to implementation of the SCS: in such instances, the rule directs regulators to use passports
or travel documents to manage foreigners’ credit records.99
Similar spillover effects can be found in the case of overseas NGOs. Those that register
in China after January 1, 2017, when a new law regulating overseas NGOs went into effect,100
are assigned an SC Unicode, as required by the relevant tax authorities.101 Those established
before this date are obliged to gradually migrate toward the SC Unicode-based system. In other
96 Id. art. 2.
97 Id. art. 8.
98 A recent incident demonstrates well how potent the SCS can be as a tool of the Chinese government to
force foreign companies into complying with its demands—be it political or otherwise. In April 2018, China’s
Civil Aviation Bureau issued an order to 36 foreign air carriers, demanding that, in accordance with China’s
“One China Principle,” they stop referring to Taiwan as an independent nation on their websites and that they
rename it as “Taiwan, China” or “the Taiwan Region of China.” Failure to do so would result in “serious trust-
breaking” in the SCS and be sanctioned accordingly. Most airlines have bowed to China’s order. Beijing’s move
has diplomatic repercussions. The White House has criticized China’s order as “Orwellian nonsense.” A U.K.
foreign affairs official remarked that, “U.K. companies should not be placed under political pressure to make
changes” on its designation of Taiwan. See Guanyu Xianqi Dui Guanfang Wangzhan Zhenggai de Tongzhi (关
于限期对官方网站整改的通知) [Notice to Correct Certain Information on Your Official Website], available at
https://www.washingtonpost.com/r/2010-2019/WashingtonPost/2018/05/05/Editorial-
Opinion/Graphics/AirlineLetter.pdf?tid=a_mcntx (last visited Nov. 17, 2018); Daum, supra note 8; U.K. Insists
on Its Terminology for Taiwan Amid Chinese Threat, FOCUS TAIWAN (July 12, 2018),
focustaiwan.tw/news/afav/201807120006.aspx.
99 Notice on Printing and Distributing the Civil Aviation Industry Credit Management Measures (Trial),
supra note 95, art. 2.

100 Jingwai Feizhengfu Zuzhi Jingnei Huodong Guanli Fa (境外非政府组织境内活动管理法) [Law on
Administration Over the Activities of Overseas Non-government Organizations Within China] (promulgated by
the Standing Comm. of the Nat’l People’s Cong., Nov. 4, 2017, effective Nov. 5, 2017), available at
http://www.lawinfochina.com/display.aspx?lib=law&id=21963.
101 Guanyu Zuohao Jingwai Feizhengfu Zuzhi Daibiao Jigou Shuiwu Dengji Banli Youguan Gongzuo de
Tongzhi (关于做好境外非政府组织代表机构税务登记办理有关工作的通知) (Notice on Implementation of

Tax Registration for Representative Offices of Overseas NGOs) (issued by State Admin. of Taxation, Jan. 19,
2017, effective Jan. 19, 2017), available at http://www.lawinfochina.com/display.aspx?id=23573&lib=law.
words, all overseas NGOs fall within the SCS and may be labeled “trust-breaking” if they are
found to have violated relevant rules or moral norms in various fields. According to Deutsche
Welle, the Chinese government is currently developing new guidelines that will determine the
numeric score of each overseas NGO. 102 It is reported that any conduct that may cause
detriment to “China’s unification, security and peace” can result in a reduction of 100 points;
the staff of these NGOs is also subject to relevant sanctions.103 Presumably, applying the SCS
to overseas NGOs will reinforce China’s controversial, stringent overseas NGO law, thereby
further discouraging NGO activity in China.
It is evident that the Chinese government has utilized the SCS not only to place domestic
citizens and entities under control, but also some foreign citizens and entities. Yet it remains to
be seen how aggressively and expansively the SCS will be used to further shape the behavior
of all foreign entities and individuals in practice, and, of course, whether and to what extent
international society can push back against unjustified intrusive acts. It is beyond doubt that in
this scenario, Beijing has employed the SCS to interfere with the operation of foreign
businesses and to compel them to follow the will of the Chinese government on very
controversial issues.104
III. RELEVANCE OF COMMERCIAL CREDIT RATING REGIMES IN BUILDING UP THE SCS
It should be noted that while commercial, privately owned credit rating systems are
parallel to and to some extent overlap with the development and operation of the SCS, they
serve different functions. The SCS exercises public authority with the clear aim of controlling
and disciplining the behavior of individuals and covered entities, and at the moment,
commercial, privately owned credit rating systems do not yet play an indispensable role in the
SCS, contrary to what has been (mistakenly) reported in major media platforms.105
Jifenzhi Yaolaile Jingwai NGO Rizi Huojiang Geng Nangou (积分制要来了境外 NGO 日子或将更难
102
过) [The Point System Is Coming; the Days for Overseas NGOs Will Be Even More Difficult], DW (May 6,
2018),
https://www.dw.com/zh/%E7%A7%AF%E5%88%86%E5%88%B6%E8%A6%81%E6%9D%A5%E4%BA%8
6-
%E5%A2%83%E5%A4%96ngo%E6%97%A5%E5%AD%90%E6%88%96%E5%B0%86%E6%9B%B4%E9
%9A%BE%E8%BF%87/a-43674878.
103 Id.
104 See supra note 98.
105 Although Sesame Credit, Tencent Credit and other similar schemes grown out of the private sector can be
broadly considered to be part of China’s overall agenda toward constructing a comprehensive SCS, they operate
in a fashion that differs from the government projects discussed above.
It is true that when the SCS began to take shape, financial credit initially formed an
integral part of the scheme106 because efforts to establish a modern financial credit system
predated the SCS.107 Further, the past several years have seen new rules that seek to better
regulate the market of private credit reporting services, including the State Council’s
Regulation on the Administration of Credit Investigation Industry in 2012108 and the PBoC’s
Measures for the Administration of Credit Rating Agencies in 2014.109 However, the types of
data collected and the ways in which data is analyzed and interpreted clearly demonstrate key
differences between the SCS and other commercial, privately owned credit rating systems.
Consider, for example, the leading private credit scoring system in China, Sesame Credit
of Ant Financial Services Group (Ant Financial),110 an Alibaba affiliate. Sesame Credit’s data
generally comes from the following sources: (1) the user’s activities on e-commerce websites
owned by the Alibaba Group; (2) online payment and financial data collected by Ant Financial,
including e-payments from Alipay and Ant Financial’s microfinance services; (3) data from
cooperating government agencies (e.g., public security authorities and the courts); and (4) other
data provided by the user.111 Notably, this method of comprehensively collecting users’ online
activities is made possible by China’s strict online real-name registration rules, under which
each user’s data is linked to his or her true identity.112 Each Sesame Credit user is given a score
between 350 and 950, which, as explained by the platform, is calculated using cloud computing
and machine learning (a technique that has not been employed in the government’s SCS). The
calculation of the credit score is based on five categories of data, namely, the person’s credit

107 Back in 1992, the PBoC created the system of “loan certificates” (daikuanzheng), which recorded the
credit information of business entities. Later with technological advances, the PBoC digitalized credit
information and finally set up a national “Credit Reference Center” in 2006.
108 Zhengxinye Guanli Tiaoli (征信业管理条例) [Regulation on the Administration of Credit Investigation
Industry] (promulgated by the State Council, effective Mar. 15, 2013).

109 Zhengxin Jigou Guanli Banfa (征信机构管理办法) [Measures for the Administration of Credit Reporting
Institutions] (promulgated by the People's Bank, effective Dec. 20, 2013).

110 See generally Zhima Xinyong (芝麻信用) [SESAME CREDIT], http://www.xin.xin/#/home (last visited
Aug. 4, 2018).
111 Ye Wenhui (叶文辉), Da Shuju Zhengxin Jigou de Yunzuo Moshi Ji Jianguan Duice—Yi Ali Baba Zhima
Xinyong Wei Li (大数据征信机构的运作模式及监管对策—以阿里巴巴芝麻信用为例) [The Operation Mode

of Big Data Credit Information Agencies and Regulatory Response—Taking Alibaba’s Sesame Credit as an
Example], WUHAN JINRONG (武汉金融) [WUHAN FINANCIAL JOURNAL], No. 2, 2016, at 66.
112 For a discussion of China’s online real-name registration, see Jyh-An Lee and Ching-Yi Liu, Real-Name
Registration Rules and the Fading Digital Anonymity in China. 25 (1) Wᴀsʜ. Iɴᴛ’ʟ L. J. (2016). Specifically,
China’s new Cybersecurity Law, effective from June 1, 2017, imposes duties on network operators to require
users to disclose their real name and personal information. Jyh-An Lee, Hacking into China’s Cybersecurity
Law, 53 Wᴀᴋᴇ Fᴏʀᴇsᴛ L. Rᴇᴠ. 57, 89 (2018).
history, behavioral preferences, fulfillment capacity, identity characteristics and social

relationships.113
People can check the scores of their friends with permission, which appears to be an
effective way to exert peer pressure, though rarely in a positive sense. Users have begun to
game the system by, for instance, subscribing to more of Alibaba’s services to raise their
scores114 or befriending people with higher scores.115 Those with good scores enjoy financial
benefits provided by the Alibaba group (and other companies that are willing to acknowledge
the credibility of Sesame Credit), including instant online loans, lower interest rates and other
perks, such as waivers of deposits for hotel-booking and bike-sharing services.116 However, a
higher score, which is perceived to represent a better socioeconomic status, is primarily valued
in and of itself as a reputational asset.117
Although Sesame Credit originated as a market-driven initiative and operates outside the
government realm, there seems to be a trend toward the merger of public and private systems.
In July 2015, Ant Financial signed an unprecedented memorandum of understanding with the
SPC.118 This document promises the one-way sharing of data: the SPC provides and makes the
defaulters’ data available on Sesame Credit, but not vice versa, at least for now. 119 Such
information sharing appears to be the first step in bringing credit rating agencies under the aegis
of the government, which is yet another crucial development in building up a comprehensive
SCS.120
113 See generally Cha Zhima Fen (查芝麻分) [CHECK SESAME CREDIT], http://www.xin.xin/#/detail/1-2-1
(last visited Aug. 5, 2018). By and large, Sesame Credit remains a “black box” by not explaining how the
algorithm actually operates and the nexus between the data collected and the scores calculated. It is also unclear
how one should understand what the score stands for in relation to one’s “credit record”.
114 Zheping Huang, I Fixed My Poor Credit Score by Being a More Loyal Alibaba Consumer, QUARTZ (Oct.
9, 2017), https://qz.com/1097766/i-fixed-my-poor-sesame-credit-score-by-being-a-more-loyal-user-of-alibabas-
wallet-app-alipay-in-china/.
115 Ane Bislev, Contextualizing China’s Online Credit Rating System, CHINA POL’Y INST. (Dec. 4, 2017),
https://cpianalysis.org/2017/12/04/contextualizing-chinas-online-credit-rating-system/.
116 Huang, supra note 114.
117 Dai, supra note 10, at 26–27.
118 Zuigao Fayuan Lianshou Zhima Xinyong Chengjie Shixin Jian Chengxiao (最高法院联手芝麻信用惩戒
失信见成效) [Effectiveness of Cooperation between Supreme People’s Court and Sesame Credit in Disciplining
Trustworthiness], PEOPLE.CN (Dec. 21, 2015, 6:32 AM), http://legal.people.com.cn/n1/2015/1221/c188502-
27953185.html.
119 China Focus: Chinese Courts Use Technology to Tighten Noose on Debt Defaulters, XINHUA NEWS (Oct.
3, 2017, 10:19 PM), www.xinhuanet.com/english/2017-10/03/c_136657135.htm.

120 The above-mentioned Ant Financial was one of the eight companies permitted in 2015 to run pilot
projects that provided credit services to individuals. None of them, however, obtained official licenses after the
testing period. Allegedly, the government justified its decision by the potential conflict of interest here: these
firms can hardly be objective and independent credit agencies because they have e-commerce and related
services of their own. Presumably, consumers have incentives, for instance, to use Alibaba’s Alipay (China’s
largest online payment system) to boost their scores on Sesame Credit. In addition, it also appears that Chinese
government is uneasy with the growing power of these private companies. See Guanyu Zuohao Geren Zhengxìn
Yewu Zhunbei Gongzuo de Tongzhi (关于做好个人征信业务准备工作的通知) [Notice on Preparing for
More recently, the Chinese government began to shift the private sector’s credit rating
power over individuals back to its own control in a centralized manner. In February 2018, the
government spearheaded efforts to create Baihang Credit Scoring, the first entity licensed to
carry out personal credit-scoring activities.121 In July 2018, the government-backed Baihang
launched a website (beta version) as one of the first steps towards operation. 122 While its
operational details remain unclear at this stage, observers expect that eight companies will
share their data with the government.123 Yet a report rightly warns that, “[c]onflicts and rivalry
between bureaucratic and commercial players could delay or even derail [the SCS]
implementation.”124 If the government’s vision indeed supports Baihang in becoming a more
powerful player to compete or even replace Sesame Credit, which mines non-bank consumer
behavior data, the SCS of the future will probably evolve to absorb AI-enabled credit scoring
programs originally developed in the private sector .
IV. THE POWER AND PERILS OF CHINA’S “RULE OF TRUST”
A. The Power: Toward a “Futuristic” Version?
China’s official SCS is still taking shape and remains primitive at this point in terms of
technology, as the system has not applied real-time data and analysis or relied on unified
“scores” calculated by algorithms and assigned to individuals. Yet, as stated in an important
official document on the development of AI, China plans to “promote the integration of
Personal Credit Investigation Business], PEOPLE’S BANK OF CHINA (Jan. 5, 2015, 5:20 PM), available at
http://www.pbc.gov.cn/zhengxinguanliju/128332/128352/128402/2810010/index.html; China Cracks Down on
Tech Credit Scoring, FIN. TIMES (Feb. 4, 2018), available at https://www.ft.com/content/f23e0cb2-07ec-11e8-
9650-9c0ad2d7c5b5; China Changes Tack on ‘Social Credit’ Scheme Plan, FIN. TIMES (July 4, 2017), available
at https://www.ft.com/content/f772a9ce-60c4-11e7-91a7-502f7ee26895; Alibaba’s Social Credit Rating is a
Risky Game, FIN. TIMES (Feb. 20, 2018), available at https://www.ft.com/content/99165d7a-1646-11e8-9376-
4a6390addb44
121 The largest shareholder of Baihang is the National Internet Finance Association of China, which is
composed of the PBoC and other government agencies, and the remaining shares are held by eight private
companies. According to state media, Baihang’s service is to supplement the state-run (Bank of China) personal
credit database. China Approves Personal Credit Platform for Online Lending, XINHUA NEWS (Feb. 22, 2018,
8:00 PM), http://www.xinhuanet.com/english/2018-02/22/c_136991905.htm.
122 BAIHANG CREDIT, https://www.baihangcredit.com/baihang.html (last visited Dec. 6, 2018).
123 “Xinlian” Luodi Nandian Hai Zai Shuju (“信联”落地难点还在数据) [“Baihang” Landing, Difficulties
Are Still Data], XINHUA NEWS (Mar. 6, 2018), http://www.xinhuanet.com/info/2018-03/06/c_137019148.htm;

Mudi Ping Baixing Zhengxin Sheli: Dui Geren Daikuan Zichan Zhiliang Juyou Zhengmian Xinyong Yingxiang
(穆迪评百行征信设立：对个人贷款资产质量具有正面信用影响) [Moody's Commented on the
Establishment of Baixin Credit Information: Positive Credit Impact on the Quality of Personal Loan Assets],
EEO.COM (Mar. 1, 2018, 6:55 PM), http://www.eeo.com.cn/2018/0301/323437.shtml; Announcement: Moody's
Publishes March Edition of ‘Structured Thinking: Asia Pacific’ Newsletter, MOODY’S (Mar. 27, 2018),
https://www.moodys.com/research/Moodys-publishes-March-edition-of-Structured-Thinking-Asia-Pacific-
newsletter--PR_381335.
124 Ohlberg, Ahmed and Lang, supra note 73.
blockchain and AI to establish a new type of social credit system.”125 The details of such a
system have not yet been revealed, though recent trends indicate that the Chinese government
will likely leverage big data to upgrade the SCS to a near-omnipotent version. Given the power
stemming from its technological advances, it is capable of doing so.
Indeed, compared with other countries, China has many advantages in mining data-driven
technologies. First, the Chinese government’s access to data is unparalleled and is still
expanding in light of its political agenda.126 The government and Internet conglomerates are
sitting on a huge repository of behavioral data gleaned from more than 751 million Internet
users.127 The rise of e-commerce as well as various e-payment schemes that reorient the nation
toward a “cashless society” further fuels this data boom.128
Additionally, authorities are highly interested in using digital traces to gather personal
data. The Ministry of Public Security’s “Police Cloud” program reportedly links personal data,
such as medical histories, supermarket memberships and delivery records to individuals’
national identification numbers (namely, the SC Unicode).129 A prying campaign is targeted at
Muslims in Xinjiang, collecting their DNA, iris scanning, fingerprints and blood types. 130
Another program of the Ministry of Public Security, the “Sharp-Eye Program,” employs the
fast growing network of facial recognition cameras nationwide to enhance surveillance and
sharing captured information among the police. 131 Recently, “Credit China” began to
encourage individuals to use facial recognition to log on to its website in order to verify the
Guowuyuan Guanyu Yinfa Xin Yidai Rengong Zhineng Fazhan Guihua de Tongzhi (国务院关于印发新
125
一代人工智能发展规划的通知) [Notice of the State Council on Issuing the Development Plan on the New
Generation of Artificial Intelligence] (promulgated by the State Council, July 8, 2017), available at
http://www.gov.cn/zhengce/content/2017-07/20/content_5211996.htm.
126 Meng Jiang, China Trails US in Every Area of AI Development Except Big Data, Oxford University
Report Finds, S. CHINA MORNING POST (Mar. 19, 2018, 7.02 PM), www.scmp.com/tech/china-
tech/article/2137887/china-trails-us-every-area-ai-development-except-big-data-oxford.
127 See White Paper: China Internet Statistics, CHINA INTERNET WATCH,
https://www.chinainternetwatch.com/whitepaper/china-internet-statistics/ (last visited Aug. 5, 2018).

128 E.g., fish vendors in traditional markets have their own QR codes for consumer payment, and even
panhandlers on the street have their own codes to collect handouts. Zigor Aldama, Going Cash Free: Why China
is Light Years Ahead in the Online Payment Revolution, POST MAG. (Sep. 9, 2017),
http://www.scmp.com/magazines/post-magazine/long-reads/article/2110118/going-cash-free-why-china-
light-years-ahead.
129 China: Police “Big Data” Systems Violate Privacy, Target Dissent, HUMAN RIGHTS WATCH (Nov. 19,
2017), https://www.hrw.org/news/2017/11/19/china-police-big-data-systems-violate-privacy-target-dissent.
130 China: Minority Region Collects DNA from Millions: Private Information Gathered by Police, Under
Guise of Public Health Program, HUMAN RIGHTS WATCH (Dec. 13, 2017, 10:48 AM),
https://www.hrw.org/news/2017/12/13/china-minority-region-collects-dna-millions.
131 Robert Schmitz, Facial Recognition In China Is Big Business As Local Governments Boost Surveillance,
NPR NEWS (Apr. 3, 2018),

https://www.npr.org/sections/parallels/2018/04/03/598012923/facial-recognition-in-china-is-big-business-as-
local-governments-boost-surveilla.
person’s identity, enabling users to access more information therein.132 This data is at the ready
disposal of the government.
Second, there are limited legal restraints on the government’s collection and use (or abuse)
of data. Until the Cybersecurity Law, which went into effect on June 1, 2017, China lacked a
legal framework to govern personal data protection—despite constitutional mandates regarding
personal freedom, privacy and the prohibition of unlawful search or intrusion into a citizen’s
residence.133 The primitive structure of China’s data protection scheme is now complete and is
conditioned by China’s Cybersecurity Law, its accompanying measures (including a “Personal
Information Security Specification” that took effect on May 1, 2018) and some patchwork
regulations. 134 Such a scheme is, for the most part, intended to prevent individuals and
businesses from accessing personal information illegally, not to guard against the government
itself. 135 While the Cybersecurity Law, for instance, prohibits network operators from
collecting personal information that is not relevant to the services they offer, it introduces
controversial “data localization” measures to keep data stored at home.136 Data exports are
permitted if and only if relevant agencies are content with the “security assessment.” 137
Although data localization may presumably be a way to offer security, it may also be used to
reinforce government monitoring of people’s online activities. 138 While the government
continues to discuss additional legislation related to personal data protection, there appears to
be no consensus on how to balance the need for data protection and the government’s ambition
to develop and expand data-related applications.139
In addition, some scholars point out that there is no legislation that defines the content of
the right to “privacy” and that “the scope of privacy is far from clear in the public law
context,”140 thereby making it difficult to challenge the government’s intrusive acts. In fact,
many laws and policies in China keenly seek to facilitate, rather than deter, the government’s
132 National Development and Reform Commission: More Than 10.7 Billion Pieces of Credit Information
Have Been Gathered on the National Credit Information Sharing Platform, supra note 52.
133 For an overview, see e.g., GRAHAM GREENLEAF, ASIAN DATA PRIVACY LAWS: TRADE AND HUMAN
RIGHTS PERSPECTIVES 191–225 (2014).

134 See generally Samm Sacks, China’s Emerging Data Privacy System and GDPR, CTR. FOR STRATEGIC &
INT’L STUD. (Mar. 9, 2018), https://www.csis.org/analysis/chinas-emerging-data-privacy-system-and-gdpr.

135 Wangluo Anquan Fa (网络安全法) [Cybersecurity Law] (promulgated by the Standing Comm. Nat’l
People’s Cong., Nov. 7, 2016, effective June 1, 2017), available at http://www.npc.gov.cn/npc/xinwen/2016-

11/07/content_2001605.htm.
136 Id. art. 37.
137 See id.
138 See Jennifer Daskal, The Un-territoriality of Data, 125 Yᴀʟᴇ L. J. 326, 391 (2015) (arguing that while it
could make sense for countries like the US to keep data at home for law enforcement purposes, the same logic
can be used for countries like China or Russia to compel a service provider operating within their borders to turn
over data of dissident human rights activists).
139 Sacks, supra note 134.
140 Chen & Cheung, supra note 10, at 372.
control of personal data. Airbnb, for instance, is required by Chinese law to proactively hand
over information on foreign guests to government authorities, including their passport numbers
and dates of stay.141
Third, the SCS has by and large encountered little domestic resistance. To enhance the
“trustworthiness of members of society” and create “an excellent credit environment” are
popular expressions used by the Chinese government to justify its SCS.142 This narrative about
using the SCS to cure many social problems in a “low-trust society” enjoys favorable coverage
in the domestic media.143 Of course, the domestic media is tightly controlled by the government.
But the popularity of the SCS may also be genuine due to its potential role in reducing prevalent
fraudulent activities, such as financial fraud, tax evasion, non-compliance with court-ordered
payments, food-safety violations and so on. The growth in private credit services also helps
those with no access to formal banking to secure credit.144 In our view, however, the legitimacy
of such a sweeping social control scheme can scarcely rest upon effectiveness alone, and it is
unclear whether and to what extent the SCS has truly improved trust among people. The
question is still open as to whether social trust and personal morals can be imposed by a system
reliant on punishments and incentives.
B. The Perils: Social Control and Human Rights Violations in the Name of “Trust”
1. Social Control Under the “Rule of Trust”
China’s goal to become the world’s tech leader must be understood not only in terms of a
dominant position in relevant industries and markets, but also in terms of the Communist
Party’s ambition to use new governance tools to reinvent social governance and social
control.145 The SCS magnifies the perils of such powers in the following two ways.
First, the SCS expands the scope of behavior under government scrutiny beyond the
existing legal system. While in most instances violations of laws or regulations appear to be
Airbnb to Give Chinese Authorities Guest Information, BBC NEWS (Mar. 29, 2018),
141
http://www.bbc.com/news/business-43578948.
143 Social Credit Scores in a Low-Trust Society, ASIA SOCIETY (October 2018),
https://asiasociety.org/switzerland/social-credit-scores-low-trust-society; see also Ohlberg, Ahmed and Lang,

supra note 73, at 6–8.
144 Stefan Brehm & Nicholas Loubere, China’s Dystopian Social Credit System is a Harbinger of the Global
Age of the Algorithm, CONVERSATION (Jan. 15, 2018),

https://theconversation.com/chinas-dystopian-social-credit-system-is-a-harbinger-of-the-global-age-of-the-
algorithm-88348.
145 Reports have surfaced that China’s technological surveillance is deployed to target “petitioners” and
Muslims in Xinjiang and other minority regions. China: Police “Big Data” Systems Violate Privacy, supra note
129.
conditions for the SCS to label an act as “trust-breaking,” not all “trust-breaking” behavior is
actually illegal. The SCS casts a rather large and uncertain shadow over the conduct of
individuals and entities. “Trust-breaking” behavior may merely breach social and moral norms
that are not codified as legal rules. Most crucially, it may further involve “norms” that are
artificially imposed by the government at will. As illustrated in Part II.B.3 of this Article,
behavior ranging from “spreading rumors” on the Internet (which can be interpreted loosely)
to “rejecting university admission” (which hardly involves any agreed-upon norms) is deemed
“trust-breaking.” The label of “trust-breaking” generates new government-backed sanctions for
behavior not originally condemned in the legal system, thus blurring the line between
social/moral norms and legal norms. This is quite contrary to the slogan of “ruling the country
in accordance with the law” that Chinese leaders so often tout.146 With the SCS in place, the
“rule of trust” largely trumps the “rule of law,” and those in China (including foreigners and
foreign entities) are therefore ruled by expansive, ill-defined ideas about what is “trust-keeping”
and what is “trust-breaking.”147
Second, for behavior that is already considered illegal, an additional label of “trust-
breaking” attaches one more (unjustified and disproportionate) layer of punishment that
restricts the subject’s activities in a wide range of areas. In practice, China’s legal system is
filled with examples of vaguely worded language that leaves plenty of room to maneuver.
Among the most notorious are so-called “pocket crimes” (such as “picking quarrels and
provoking trouble” and “gathering a crowd to disturb order in a public place”), which are
abused by the police to punish dissidents, activists and petitioners.148 This new authority to
impose a complex web of sanctions through the use of the SCS further empowers the Chinese
government to punish those who are deemed in non-conformance with its rules.
2. Unjustified Social Exclusion and Discrimination
In other countries, an individual with a poor credit score is normally considered to be a

high financial risk, and hence, is unlikely to secure a loan under favorable terms.149 By contrast,
China’s SCS operates in a different fashion. Joint sanctions in the SCS extend far beyond
unfavorable treatment in a purely business sense. They involve expansive and enormous
disadvantages in myriad areas, from employment, professional qualifications and social
146 RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW 6 (2002).
147 See supra Part II.B.3.
148 CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA, ANNUAL REPORT 2014 81 (2014), available at
https://www.cecc.gov/sites/chinacommission.house.gov/files/2014%20annual%20report_0.PDF.
149 See e.g., Irina Barakova et al., Does Credit Quality Matter for Homeownership? 12 J. HOUSING ECON.
318, 334 (2003).

mobility to various socioeconomic activities. Individuals failing to execute a civil judgment

are barred from serving as a public servant or employee in publicly funded institutions or from
taking a managerial post in the manufacturing and banking sectors or state-owned enterprises.
Nor can they work in industries related to medicine and food. Additionally, their physical
mobility is restricted. Taking planes and trains in certain classes, booking travel, staying in
highly rated hotels or leaving the country are generally constrained or prohibited altogether.
Their family may also be punished—denial of admission into private and more prestigious
schools is a typical consequence for a defaulter’s child.150 That is, being labeled as “trust-
breaking” brings about far-reaching, adverse ramifications that may not be justifiably linked to
the original infraction. Moreover, as mentioned previously, there are many ways to name and
shame the guilty party. Putting the photos and personal data of defaulters on the street’s LED
screen and assigning them a special ringtone is meant to discredit their reputation and induce
psychological harm. The above analysis also applies to the legal representatives and “major
responsible persons, persons bearing direct responsibility for fulfilling debts and persons
actually controlling the entity” whenever the defaulter is a business entity.151
While there are indeed people who conceal assets from the courts, there are also those
who are genuinely socioeconomically disadvantaged. The many barriers created by the policy
of “trust-breaking here, restrictions everywhere” seem disproportionate and unjustified when
sanctions are completely disassociated from the original wrongdoing. These expansive
punishments will inevitably hamper the person’s upward mobility and social integration,
creating a de facto lesser social class that is identified as an unwelcome group and walled off
from many public spheres.
There is another discriminatory concern that has not yet materialized but is worth
watching as China’s SCS advances. If the government adopts the practice of Sesame Credit to
use cloud computing and machine learning to determine a person’s “trustworthiness,” the
dangers cannot be overstated. Western media and scholarly research have highlighted the
pitfalls and biases embedded in the algorithms, which have already been highly contested,
especially in the context of criminal justice proceedings.152 Technologies driven by algorithms,
150See supra note 91, art. 3.

151Id. arts. 3 (19), (20), (21), (22) and (23).
152 See e.g., Ellora Thadaney Israni, When an Algorithm Helps Send You to Prison, NEW YORK TIMES (Oct.
26, 2017), https://www.nytimes.com/2017/10/26/opinion/algorithm-compas-sentencing-bias.html; Julia Angwin

et al., Machine Bias, PROPUBLICA (May 23, 2016), https://www.propublica.org/article/machine-bias-risk-
assessments-in-criminal-sentencing; Andrea Roth, Machine Testimony, 126 YALE L. J. 1972 (2017) (addressing
the problem about machines as witnesses in the criminal justice system); Michael L. Rich, Machine Learning,
Automated Suspicion Algorithms, and the Fourth Amendment, 164 U. PA. L. REV. 871, 877-79 (2016)
(addressing implications of new technology for Fourth Amendment jurisprudence in U.S. law); Han-Wei Liu,
Ching-Fu Lin & Yu-Jie Chen, Beyond State v. Loomis: Artificial Intelligence, Government Algorithmization,
due to their complexity and proprietary nature, operate in a rather opaque way. Frank Pasquale
popularized the term “black box” to describe the algorithm-enabled determination process,
which has proven extremely difficult to understand and to challenge.153
The black box concern also applies to the Chinese context. In Chinese social life,
discrimination abounds. Take, for example, the Uyghurs in Xinjiang, a population that was
already suffering social and economic discrimination before the digital age. They have now
been under expansive, strict surveillance. Campaigns have been rolled out to set up
comprehensive facial recognition cameras in the region154 and to gather the biometrical data of
Uyghurs. With magnified scrutiny, it is much more likely that fault will be found among this
population than other groups and its members will be disproportionately labeled as
“troublemakers.” Such labels can, in turn, reinforce the bias against targeted ethnic groups.
If the Chinese government or private firms build upon data colored by racism or
discrimination in shaping a data-driven, automated decision-making process, one may well
expect hidden social discrimination to penetrate every corner of society in China. Without
proper safeguards, new technologies could be applied to further oppress those disadvantaged.
Put simply, the critical challenge one might consider is: Whether and, if so, to what extent will
the future system reproduce biased data? There is no critical debate in China comparable to the
Western critique of the discriminatory implications of technology. In fact, the domestic media
(which is largely controlled by the Chinese government) and tech experts appear celebratory
when it comes to the use of big data for “the greater good,” hastily brushing aside potential
concerns.155
3. Shrinking Space for Privacy
Criticisms regarding China’s lack of privacy and data protections, as well as its
surveillance mechanisms, are hardly new.156 With the evolving SCS, however, any remaining
space for privacy is shrinking rapidly. One can understand “privacy,” as Mireille Hildebrandt
and Accountability, INT’L J. L. & INFO. TECH. (forthcoming 2019) (discussing how the use of data-driven
technology and automated decision-making in government functions may undermine human rights and the rule
of law). See also infra note 173 and accompanying text.
153 See generally FRANK PASQUALE, THE BLACK BOX SOCIETY: THE SECRET ALGORITHMS THAT CONTROLS
MONEY AND INFORMATION (2015).

154 Simon Denyer, Beijing Bets on Facial Recognition in a Big Drive for Total Surveillance, WASHINGTON.
POST (Jan. 7, 2018), https://www.washingtonpost.com/news/world/wp/2018/01/07/feature/in-china-facial-

recognition-is-sharp-end-of-a-drive-for-total-surveillance.
155 Ohlberg, Ahmed and Lang, supra note 73, at 6-7.
156 See e.g., China: Police “Big Data” Systems Violate Privacy, Target Dissent, supra note 129; Louise
Lucas and Emily Feng, Inside China’s Surveillance State, FINANCIAL TIMES (July 20, 2018),
https://www.ft.com/content/2182eebe-8a17-11e8-bf9e-8771d5404543.
suggests, as “a social setting that permits a person to prevent, ward off or contest unreasonable
constraints on the construction of her identity.”157 When the practice of gathering personal data
is intrusive and omnipresent, people are most unlikely to be fully aware of what is collected by
both the public and private sectors,158 and therefore they do not know what to “prevent, ward
off or contest.” Even if they are aware, they may not be able to opt out of the regime, as some
measures are mandatory, while others bring about conveniences in the default setting.
Consciously or not, people are trading their right to privacy for the right to remain part of the
data-driven, contemporary society.159
While there is, indeed, growing concern among Chinese citizens about privacy160 and
some savvy netizens and experts have openly criticized privacy violations, 161 the existing
resistance does not appear sufficiently effective to slow down the pace by which the SCS is
advancing. In fact, one report finds that domestic media coverage tends to demonstrate a high
level of trust toward the government’s plan, while at the same time blaming private companies
as the source of privacy violations.162 It is hard to gauge the public’s perception of space for
privacy in China, where information and the media are often controlled and nontransparent.
Given the increases in new technologies, innovative methods and additional venues for
surveillance, the public may develop greater tolerance for them, and the space for privacy will
continue to diminish, frustrating the very aim of the protection of privacy.163
In light of the sweeping effects of the SCS, Chinese government agencies’ unfettered use
of such data (which may or may not be related to the original purpose of data gathering) could
HILDEBRANDT, supra note 14, at 102.

157
Ohlberg, Ahmed and Lang, supra note 73, at 2 (“Neither party-state nor private media fundamentally
158
question the need for the Social Credit System. Social media coverage suggests that many citizens have yet to
grasp what the Social Credit System is and what its implications in their daily lives may be.”).
159 A study finds that consumers may be willing to give up some private information in the supermarket
surveillance practices as a “tradeoff” for greater convenience. See Jenifer Sunrise Winter, Surveillance in
Ubiquitous Network Societies: Normative Conflicts Related to the Consumer In-store Supermarket Experience
in the Context of the Internet of Things, 16 (1) ETHICS AND INFO. TECH. 27, 39 (2014).
161 Id. at 8.
162 Id. at 6-8.
163 See G.A. Res. 2200 (XXI) A, International Covenant on Civil and Political Rights, Article 17, U.N. Doc.
A/6316 (Dec. 16, 1966) [hereinafter ICCPR]. Admittedly, China has not ratified the ICCPR which it signed in
1998. Nevertheless, as a signatory, China is obliged to, as per Article 18 of the Vienna Convention on the Law
of Treaties, to which is acceded in 1997, “refrain from acts which would defeat the object and purpose” of the
ICCPR. China has declared on various occasions that it accepted the recommendations to “create conditions for
the early ratification of the ICCPR,” but its systematic approach to innovate measures that step up surveillance
casts doubts on the Chinese leaders’ political will to ratify the ICCPR at all. National Report Submitted in
Accordance with Paragraph 15 (a) of the Annex to Human Rights Council Resolution 5/1: China, Human Rights
Council, Working Group on the Universal Periodic Review Fourth Session, at 7, U.N. Doc.
A/HRC/WG.6/4/CHN/1 (Nov. 10, 2008).
result in harm to privacy and thereby deter individual activities.164 Such deterrence and its
chilling effects would also operate in a manner that is contrary to the underlying rationale
behind the protection of freedom of speech.
4. Due Process Concerns
The SCS also raises concerns about the very real potential to undermine due process of
law in its operation and in particular the right to an effective legal remedy.165 The way the
current regime works to remove false or outdated information is confusing. Each government
agency is in charge of managing its own Blacklist. Once an incorrect record is found (or the
blacklisted individual complies with relevant rules or a specified period of time passes), the
agency may remove the subject from the Blacklist and notify other agencies to cease joint
sanctions.166 However, if the agencies fail to correct information, it appears there is no effective
mechanism for redress in place.
Among the many Blacklists, the one managed by the SPC has relatively more detailed
rules than others regarding how to remove inaccurate information.167 Even there, however,
protection seems inadequate: The SPC Defaulters Rule allows a blacklisted defaulter to request
removal, but there is nothing requiring the courts to notify the individual about the Blacklist in
the first place, which would enable the listing to be contested as soon as possible. To initiate
the correction process, the defaulter must first apply to the original court that blacklisted him
and then appeal to the upper-level court in the case of an unsatisfactory result.168 There is no
public hearing that allows the person to state his or her opinion. This procedure, which involves
no outside scrutiny, calls on the court to correct its own error. In addition, the SPC Defaulters
Rule requires that the listing be kept in place while the defaulter challenges it.169 Although the
court review process is relatively short (15 days for each level),170 by the time the procedure is
completed, the incorrect listing will have already caused detriment to one’s day-to-day
activities and reputation. It is unclear if other agencies will make corresponding corrections as
quickly as the SPC process allows. In practice, stories have surfaced in which people find it
difficult to correct false information once and for all.171 More broadly, there is no uniform
164 On the notion of privacy harm and possible limits, see e.g., M. Ryan Calo, The Boundaries of Privacy
Harm, 86 IND. L. J. 1131 (2011).

165 See ICCPR, supra note 163, art. 2.
166 See e.g., SPC Defaulters Rule, supra note 77, arts. 9–11.
167 Id. arts. 9–13.
168 Id. arts. 11–12.
169 Id. art. 12, para. 2.
170 Id. art. 12, para. 1.
171 Maya Wang, China’s Chilling ‘Social Credit’ Blacklist, HUMAN RIGHTS WATCH (Dec. 12, 2017),
procedure for rectifying information among various Blacklists.172 Correction procedures vary,
and the robustness of each of these Blacklists is largely unclear.
Another question turns on the nature of the future SCS determination process. As
previously mentioned, although the system has not yet reached the stage of applying algorithms
to its collected data and the Chinese courts have not begun to deploy big data in determining a
wrongdoer’s fate, as the system continues to evolve, there may be a role for AI and data
analytics in helping the executive and judicial branches make a judgment call regarding
“trustworthiness.” If this is the case, the very nature of data-driven, automated decision-making
processes may become hurdles for a fair, accountable procedure.
For many, data-driven mechanisms seem a promising solution to deliver to the world a
fair, rational and cost-effective outcome without prejudice. Such a belief has led both the public
and private sectors to rely more heavily on statistics and algorithms in their decision-making.
However innovative these systems may be, they can scarcely be immune from human bias,
subjectivity and heuristics. The creators of such automated systems can still be ensnared by
cognitive biases of various types while they collect and process the data or write the code. The
use of algorithms and data analytics in democratic countries, most notably in the United States,
has already raised enormous controversies: A recent case in the U.S., State v. Loomis, is one
such illustration revealing the potential risks of using software that is arguably designed with
biases against racial minorities.173 Yet, the biases can be impossible to challenge when they are
hidden in algorithms that claim to be objective and scientific. In addition, the black box
problem refers not only to the complex dynamics of the underlying data and algorithms, but
also to the proprietary nature of these programs. In particular, rightly or wrongly, the latter may
justify a proprietor’s rejection of a request for disclosure or an explanation, impeding one’s
resort to a legal challenge. Depending on how China incorporates this innovation into its
governance regime, the black box problem is far from a hypothetical concern.
V. CONCLUSION
The Chinese government has been designing new mechanisms and employing new
technologies to reinforce and entrench its political and social control. The ambitious SCS is
https://www.hrw.org/news/2017/12/12/chinas-chilling-social-credit-blacklist.
173 State v. Loomis, 881 N.W.2d 749 (Wis. 2016). For a critique on the use of data-driven technologies in
criminal justice, see, e.g., Natalie Ram, Innovating Criminal Justice, 112 NW. U. L. REV. 659 (2018); Kiel
Brennan-Marquez, “Plausible Cause”: Explanatory Standards in the Age of Powerful Machines, 70 VAND. L.
REV. 1249 (2017).
one of the latest and perhaps most aggressive of its inventions that have attracted considerable
media attention. This Article has offered a careful and up-to-date examination of the system
and a critical view that is distinctive from the existing literature. While we note that the SCS
may enhance law enforcement in some ways, we emphasize the serious perils inherent in this
intrusive governance mode, which is anchored on an ambiguous and expansive notion of “trust.”
In the name of trust, the Chinese government now implements vaguely-worded rules to
encourage and compel “trust-keeping” behavior and imposes arbitrary, disproportionate
punishments on those who are considered “trust-breakers.” We note with concern that the new
governance mode that underlines the SCS—what we call the “rule of trust”—derogates from
the principle of “governing the country in accordance with the law” that Chinese leaders have
long purported to endorse. It is a convenient governance tool that serves power holders to
enhance authoritarianism and consolidate their social control.
We further caution against the perils that accompany new regulatory tools aided by
technological progress. The comprehensive SCS is made possible by unconstrained practices
of collecting and sharing personal information by government agencies through the use of
various technologies. More advanced technologies, such as AI-based systems that have been
used in other fields in China, are expected to be incorporated in the future SCS. Without
meaningful checks, the surveillance of society will surely grow with technological advances.
Indeed, a boundless notion of “trust” and the unrestrained employment of technology are
a dangerous combination in the context of China’s governance. This Article has analyzed the
adverse consequences of this combination, including the party-state’s extensive, repressive
social control, unjustified social exclusion and discrimination, the resulting shrinking space for
privacy and the erosion of due process in the giant government machine.
The Chinese party-state’s ambitions for comprehensive control did not begin with the
current SCS megaproject, and will not end with it. Many important questions remain as the
SCS continues to evolve together with technologies: What will a full-fledged SCS look like?
What will be the outcome of the struggle between the “rule of trust” and China’s Constitutional
principle of “governing the country in accordance with the law”? To what extent will the SCS
shape and restrain the behavior of China’s citizens and non-citizens, in China and beyond, over
the long term? How will the Chinese government integrate other subsystems—such as the
collection of personal behavioral information, facial recognition policing, social media control
and government decision-making mechanisms—into the future SCS? In light of the unique
political, legal and social context in China (including an inadequate legal framework for
privacy protection, lack of independent judicial review and a one-party authoritarian regime),
can there be any effective checks on China’s reliance on technology-reinforced governance
tools? Will the proposed solutions often seen in a Western context—such as privacy by design,
the right to an explanation, the right to reject automated decision-making, the right to be
forgotten and so on—work for China? Last and certainly not least, how can China’s civil
society and the international community counter the growing interference of the SCS with the
freedoms of individuals and entities and promote their shared interests in human rights? All of
these questions merit greater scholarly attention and future research.
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“RULE OF TRUST”: THE POWER AND PERILS OF CHINA’S SOCIAL

YU-JIE CHEN,* CHING-FU LIN** & HAN-WEI LIU***

Emerging as a comprehensive and aggressive governance scheme, China’s “Social

University School of Law; [email protected].

A. The Evolution of “Social Credit” .............................................................................................. 7

XIANFA art. 5 (1982) (last amended Mar. 2018) (China).

2018), https://www.chinalawtranslate.com/credible-threat-taiwan-websites-and-social-credit/; Rogier Creemers,

CHINA LAW TRANSLATE (Dec. 24, 2017), https://www.chinalawtranslate.com/seeing-chinese-social-credit-

21, 2017), https://www.wired.co.uk/article/chinese-government-social-credit-score-privacy-invasion; Mariel

II. CHINA’S SOCIAL CREDIT SYSTEM

A. The Evolution of “Social Credit”

1. A Primitive, Financially-Oriented Concept

Zhanwang (让失信者寸步难行—我国社会信用体系建设的回顾与展望) [Let the Untrustworthy Be Unable to

Database], http://www.pbccrc.org.cn/zxzx/zxgk/gywm.shtml (last visited Nov. 9, 2018).

2. The Current Aggressive Concept Designed to Build Social Trust

29 Creemers, supra note 8, at 9.

B. How the System Operates: The Four Mechanisms of Social Credit

1. Information Gathering: Comprehensive Bureaucratic Networks Targeting “Trust-

https://www.chinalawtranslate.com/social-credit-documents/ (last visited Dec. 6, 2018).

(关于实施<国务院机构改革和职能转变方案>任务分工的通知) [Notice on Dividing the Tasks for

information. 43 The SC Unicode serves as an index to store and locate individualized

Mar. 16, 1992, available at https://www.nytimes.com/1992/03/16/world/beijing-journal-where-each-worker-is-

2015, available at https://www.telegraph.co.uk/news/worldnews/europe/germany/11336288/East-German-Stasi-

promoted or even becoming a Communist party member.48 No institutional channel existed to

2. Information Sharing: Breaking Down “Credit Information Barriers”

(关于加快推进失信被执行人信用监督、警示和惩戒机制建设的意见) [Opinions on Accelerating the

Tiao (国家发改委：全国信用信息共享平台已归集信用信息超过 107 亿条) [National Development and

https://www.creditchina.gov.cn/xinyongfuwu/shixinheimingdan/ (last visited Nov. 9, 2018).

https://www.creditchina.gov.cn/xinyongfuwu/shouxinhongmingdan/ (last visited Nov. 9, 2018).

Shanghai.” 62 In addition to government schemes, various private service providers operate

3. Labeling: Blacklisting, Naming and Shaming

信用中国(上海) [HONEST SHANGHAI] http://www.shcredit.gov.cn/ (last visited Nov. 9, 2018) (This

Inquiry], CREDIT CHINA, http://www.creditchina.gov.cn/gerenxinyong/?navPage=14 (last visited Aug. 4, 2018).

Chengjie ([诚信建设万里行] 河南出招：放高校“鸽子”的失信考生将受惩戒) [[Integrity Construction Miles]

Píngtai de Tongzhi (中宣部、最高法、银监会下发关于创建完善失信被执行人曝光平台的通知) [The

4. Joint Sanctions: “Trust-Breaking Here, Restrictions Everywhere”

Trust-Breakers on the Defaulters' Lists, supra note 51.

administrative approvals, government support, financing credit, market access and

SPC Defaulters Rule, supra note 77, art. 8.

Jili Chengjie de Hezuo Beiwanglu (联合激励惩戒的合作备忘录) [Memoranda on Joint Rewards and

施联合惩戒的合作备忘录) [Memorandum of Cooperation Concerning Imposing Joint Sanctions on Trust-

C. Spillover: Extraterritorial Effects

supra note 95, art. 2.

Tongzhi (关于做好境外非政府组织代表机构税务登记办理有关工作的通知) (Notice on Implementation of

III. RELEVANCE OF COMMERCIAL CREDIT RATING REGIMES IN BUILDING UP THE SCS

106 2014 SCS Plan, supra note 4.

Industry] (promulgated by the State Council, effective Mar. 15, 2013).

Institutions] (promulgated by the People's Bank, effective Dec. 20, 2013).

Xinyong Wei Li (大数据征信机构的运作模式及监管对策—以阿里巴巴芝麻信用为例) [The Operation Mode

history, behavioral preferences, fulfillment capacity, identity characteristics and social

3, 2017, 10:19 PM), www.xinhuanet.com/english/2017-10/03/c_136657135.htm.

IV. THE POWER AND PERILS OF CHINA’S “RULE OF TRUST”

A. The Power: Toward a “Futuristic” Version?

Are Still Data], XINHUA NEWS (Mar. 6, 2018), http://www.xinhuanet.com/info/2018-03/06/c_137019148.htm;

https://www.chinainternetwatch.com/whitepaper/china-internet-statistics/ (last visited Aug. 5, 2018).

NPR NEWS (Apr. 3, 2018),

RIGHTS PERSPECTIVES 191–225 (2014).

INT’L STUD. (Mar. 9, 2018), https://www.csis.org/analysis/chinas-emerging-data-privacy-system-and-gdpr.

People’s Cong., Nov. 7, 2016, effective June 1, 2017), available at http://www.npc.gov.cn/npc/xinwen/2016-

YU-JIE CHEN,* CHING-FU LIN & HAN-WEI LIU*