I find the Bloomberg opinion piece written by historian Niall Ferguson at Stanford University very interesting [@tiktokban], partly because it talks about one of the steaming hot and still ongoing stories today: TikTok. Ferguson lists three reasons why he supports the actions of the Trump administration — first a ban on the app and then a forced sale to a domestic firm, either Microsoft or Twitter. Ferguson concluded his essay with the following words “TikTok is ugly, very ugly. And severing its hotline to Xi Jinping’s imperial panopticon is the least we can do about it.”
Everyone is entitled to an opinion, although it is facts and evidences, accompanied by convincing analyses, that separate substantiated arguments from empty ones. Unfortunately I find neither in this writing. The evidence was weak if not completely missing, and the analysis was jumpy. Being a well trained historian, Ferguson did take us back to the short history of TikTok in 2012, when Mr. Zhang, Yiming started his company named ByteDance as a smartphone content provider. The only other significant event was in 2017, when Mr. Zhang paid $1 billion for a lip-syncing app called Musical.ly, which he then merged with his own short video app TikTok. The rest of the story we all know by now: TikTok has 100 million users in the US alone [@tiktoktrump] and ByteDance is the highest valued private company in the world [@Zhangyiming].
To be fair, Ferguson started without showing much bias against the app and its founder. He was simply trying to understand why TikTok has been this popular. He also praised Mr. Zhang for being a “great entrepreneur” and not an authoritarian at personal level. But as a commentator, he must say something to fill the contents that match his title of “TikTok Is Inane. China’s Imperial Ambition Is Not”, with an even more eye-catching subtitle “The U.S. won the Cold War by exporting its values, and China has a similar plan for Cold War II”.
Ferguson’s approach was to use a dramatic episode to change his tone: “I had the epiphany. TikTok is not just China’s revenge for the century of humiliation between the Opium Wars and Mao’s revolution. It is the opium – a digital fentanyl, to get our kids stoked for the coming Chinese imperium.”
Those words do seem like from an epiphany, in which his thoughts jumped back to the Opium Wars in 1839 and then all the way forward to the “digital fentanyl” in present days. In such an epiphanic journey TikTok suddenly became China’s top secret weapon for destroying the U.S., starting right from the children, the future generations of the country, much like Khrushchev, the leader of Soviet Union, once predicted, “We do not have to invade the United States, we will destroy you from within.” [@krushev] Ferguson did cite some opinions, one from someone living in Taiwan, while another a Chinese professor in Beijing. The latter claims China faces “a struggle to become the heart of world empire.” Alas, to take one scholar’s view as representing the entire country is like equating Ferguson with the Press Secretary of the White House.
But wait, are not Chinese scholars the “willing scholarly partners” of the Chinese government, just like Ferguson called many Chinese AI start ups as “the Communist Party’s ‘willing commercial partners’?” To answer this question, we need more assistance from laws than stories with vivid imaginations.
Criminal Mind in the Court of Law
The Ferguson essay developed, or more accurately followed, a “guilty by intent” logic, just like the American “Gang of Four” in the Trump administration did as Steven Roach -@gangoffour has commented. Such a logic is more popular than we can observe, because many innocent American citizens use it silently when it comes to foreign countries. It demands sufficient attention to allow us to break down the myth.
It is nothing wrong to look at criminal intent, which is fully accepted by criminal law as a necessary element of many crimes. The general rule is that people acted without mental faults are not liable in criminal law. Guilty by intent, or using more appropriate legal language, Mens rea, Latin for “Guilty mind”, emphasizes a person’s intention to commit a crime.
The problem is how to measure the intent. The answer, according to Wikipedia, is to “use a hybrid test of intent, combining both subjective and objective elements, for each offence changed.” Translated into plain English, we cannot rely completely on the subjective element for intent, we must look at the objective element as well, because the formal definition of intent is “the decision to bring about a prohibited consequence.” [@intents].
Finding National Intent Is Hard
Criminal laws deal with individual offenders, while in trade war and national competition we must consider the collective intent of an entire country. “National intent” is trickier and a lot harder to measure. Given the difficulties, plus insufficient attention to or interest in foreign affairs, people naturally resort to cognitive short-cuts and simplifying assumptions. Many if not most Americans for example presume that in an authoritarian country like China, there is a single dictator (i.e., Xi, Jinping) making all the decisions for the entire country. Reality is more nuanced and as my theory of preinstitutions points out, preinstitutions (i.e., informal, instantaneous, diverse, dynamic and adaptive rule /decision making) often matters more than formal and fixed institutions. Long story short, China has its own way of responding to popular demands of the people, sometimes more efficiently than a democracy. The model of “One man decides, everyone else follows” is no longer the model that fits reality well.
If you live in China, or can read Chinese, you would know that the society is far more open and less draconian than an average American might imagine. There are several reasons. During Mao’s era, China fitted more closely to the above model. That is, Mao, Zedong was pretty much the only man allowed to think, and everyone else just followed him (one could get himself, as well as his entire family, deep in troubles for acting otherwise). But Xi, Jinping is not Mao Zedong — no matter how much he wanted to follow Mao’s steps. For one thing, Mao received huge credits as the founding father of the country and was regarded a national hero by “defeating” the American and allied UN troops in the Korean War. Xi never even had the opportunity to show his patriotism by joining the so called “People’s Volunteer Army” or PVA because it was biologically impossible. The PVA entered the Korean Peninsula in 1950, while Xi was born in 1953. Time has also been different. Mao had the “advantage” of hiding behind the “Iron Curtain”, which was long lifted since the Soviet Union collapsed. The Iron Curtain had its advantage because ideological conflicts forced nations to take side in a Cold War. Under heavy ideological propaganda, citizens were willing to give up some privacy and privilege in exchange for the state to protect them from external threats. Xi lives in a different era, when China has enjoyed peace time for decades, so the government lost an important way of fully mobilizing its citizens. The result is that while Mao had absolute and sweeping powers, Xi only has relative or conditional authority, which depends on his job performances, his wisdom and his personal “soft power” of charisma, plus the number of his loyal followers, including if not particularly those in the military.
Controlling the social media platforms (e.g., WeChat) is definitely a part of the agenda. Unfortunately, China’s skill level of propaganda remains low if not the lowest in the world, despite a huge budget for maintaining “domestic stability.” The government has yet to find a less clumsy way of supervising social media platforms, other than screening out or deleting “offensive” posts, closing “problematic” accounts, punishing the “guilty” blog hosts and sometimes even arresting them. These worked somewhat within the country, due to the weak ideological preference of the majority of Chinese citizens, but obviously not beyond its national borders.
“Rule of Man”, “Rule by Law” & “Rule of Law”
Another change that has been little noticed — even by people inside China — is Xi’s move toward a de facto governing model of “rule by law”, which can be seen as an intermediate step toward “rule of law”. In “rule by law”, there is still an authority entity (i.e., the party and the central government) that monitors, executes and controls the implementation of laws. In that sense, the entity has power above and beyond the law. While a typical westerner would laugh at this model, it is still a step to the right direction.
The Mao’s era can be best described as “rule of man”. In one of his meetings with Edgar Snow, the author of Red Star Over China, Mao described himself as “a monk holding an umbrella.” This was a punchline that you have to know the language to understand it. But Mao was essentially saying that he would not follow any existing law and would rather be a “lawless” man. That kind of mentality could only survive the Cold War.
One may rightfully ask what is the difference between “rule of man” and “rule by law,” because having someone above law is the same as no law? In truth, laws are transparent, stable and preexisting, so people can follow them instead of some random and arbitrary wills of the rulers, no matter how irrational they may be. Little do they know in China that preparing and publishing more laws with sufficient details rather than empty slogans is the most efficient (i.e., with the lowest cost) way of keeping social stability in the long run. Better yet, it encourages social justice, again far more efficient than hiring a cheap army of online censorship teams. Believe it or not, “rule by law” can even place some constraints on the authority entity, because once laws are published, it is a human instinct to ask everyone to follow the same laws. At a minimum, when an entity violates the law, everyone in the society can see it. This raises the social cost of lawlessness.
Here is a good example that China under Xi is attempting the “rule by law” model. The change of law to allow leaders to stay in power a longer time if necessary, has caused much criticism outside China. The right question to ask here is this: Would Mao need such a legal change to stay in power for his entire life? The answer of course would be “No!” Xi is actually playing it the legal way, not the casual way like Mao would.
China is still a baby when it comes to legal construction or rule of law. A very bad example is to ask suspects to confess in front of national TV. Unfortunately many Chinese did not even recognize this is a violation of human rights and goes directly against the (criminal) law. Furthermore, many laws contain more principles than detailed, executable guidance. Some laws should have been more forward looking. A good example is the National Cyber Security Law in 2017, which demands all entities to “support, assist and cooperate with the state intelligence work.” Languages like this can have different interpretations, some may turn around to hurt China. Sure enough, the above item has been often cited as an evidence that China is a police country.
A Chinese Plan for Global Hegemony?
After a long detour, I want go back to the objective element for defining the intent. Are there any signs that China intends to conquer the world as an invincible empire? The answer is mixed but the pattern is rather clear: China is not as innocent as it says. It has used its market-based power from time to time to punish countries that have criticized China — especially for countries other than USA. The latter has been treated differently, apparently due to its status of the sole superpower in the world. On the other hand, as long as you do not criticize China, China generally will do business with you. Further, it is market based power (e.g., not importing goods from the targeted countries), not military power, that China has been wielding.
These observations do not lead to the definite conclusion beyond reasonable doubt that China is trying to establish a communist global hegemony. So far China has clearly focused on Asia. The only areas China faces potential military conflicts are the Taiwan strait, the South China Sea, and the land borders with India — all are within Asia. It is true that China has refused to promise a peaceful means of getting Taiwan back under all circumstances, but also has not been too aggressive there lately, either. As a large continental country China has been acting with certain degrees of self-constraint toward its neighbors, although sometimes it has bullied or harassed others.
In the South China Sea, the ASEAN countries have worked toward a shared Code of Conduct with China that should help avoid conflicts for maintaining peace. The US has recently shifted its policy there on July 13 this year, which now denounced China’s maritime claim as completely illegal [@cispolicy]. US also claims that it “firmly endorsing the substance of a 2016 ruling by a tribunal convened under the UN Convention on the Law of the Sea (UNCLOS).” These are all fine and noble, but as pointed out by @tribunal, China’s rejection of the ruling as “just a piece of paper” certainly was not unique. In fact, “no permanent member of the UN Security Council has ever complied with a ruling by the PCA on an issue involving the Law of the Sea. In fact, none of the five permanent members of the UN Security Council have ever accepted any international court’s ruling when (in their view) it infringed their sovereignty or national security interests.”
Based on these signs, a reasonable judge in a court of law will most likely not declare China “guilty by intent” for global hegemony.
TikTok = Digital Opium?
I want to address Ferguson’s claim that TikTok is very ugly because it is the digital opium in the 21st century. Here is a thought experiment: In order to prove the case that TikTok is the digital fentanyl landed in the US by Chinese Communist Party to destroy the young generation of this country, we must have evidences that Mr. Zhang, the entrepreneur behind TikTok, had clearly remembered the humiliating Opium Wars when designing the app. If not, then the Communist party must have forced Mr. Zhang to significantly modify his original design to allow the app to be used for “national interest”. Further, the app must be so cleverly worked to get the US kids addicted but not die from over-dose, using the metaphor of TikTok as digital opium. Finally the Chinese community party must have subsidized or compensated Mr. Zhang for his contribution during the entire time when TikTok is operating in the US. In the court of law, any previous violation(s) of China hiring Chinese nationals or firms to operate in the US to serve its hidden agenda for defeating the US would certainly help. Do we have those supporting evidences? Ferguson, our “prosecutor” in this case with the burden of proof has not listed even one of the aforementioned evidence. Therefore, the judge or the jury would have to rule against the “guilty by intent” accusation.
The above reasoning says nothing about the possibility that after China grows more feathers, it may want to fly out of Asia and compete with US in other regions. But a court of law does not act on future possibilities, only past and present facts.
TikTok = National Security Threat?
Now let us look at the charges Ferguson brought up against TikTok, which has been directly linked to the national security concern that the Trump executive order was based on. High on the list is collecting customer info and send it to China. Unfortunately this charge is also weak. @tracking has reported that hundreds of apps in the US have hidden tracking software used by the government. Of course, people may allow their domestic governments to have data about them, but not a foreign country like China. However, here is the right way to fix the problem: Tighten our own fences before attacking others. Instead of using rushed executive orders, we should have tightened the law first. One reasonable and actionable law is to ask all businesses operating in a locality to obey the local law. For this reason, I fully support US users to suit WeChat US, because it has acted like it was in China: Deleting posts that Chinese government may hate, and blocking certain “problematic users” from broadcasting their posts to a group. These practices are legal in China, but definitely not in US. By the same token, I also support WeChat users in this country to suit the executive order of banning the app because it would create huge inconvenience for most if not all Chinese living in the US.
More generally, US should play the game by using its “high cards” like @nye2020perspectives has suggested. Having a mature and independent legal system is one of the high cards that China does not have. Using it makes complete sense, while not using it is stupid. Having a mature market system is another high card of ours. In a mature market, firms and governments play their independent but complementary roles. We do not simply ban TikTok or force it to sell. Instead, we allow it to enter, to compete with others but we keep it informed that any violation of the law will not be tolerated and will have consequences. The Trump administration frequently relies on executive orders, but those only weaken our market system by interfering the market and decrease the credibility of US market.
References
Allison, Graham. 2016. “Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict.” https://thediplomat.com/2016/07/of-course-china-like-all-greatpowers- will-ignore-an-international-legal-verdict/. amarillo.com. 2012. “Letter: Khrushchev Prediction Slowly Coming True.” https:// www.amarillo.com/article/20121008/OPINION/310089744. Brown, C. Scott. 2020. “Hundreds of Apps Have Hidden Tracking Software Used by the Government.” https://www.androidauthority.com/government-tracking-apps-1145989/. Economist, The. 2020. “Forced Sales Are the Wrong Way to Deal with Chinese Tech.” https://www.economist.com/leaders/2020/08/05/forced-sales-are-the-wrong-way-to-dealwith- chinese-tech. Ferguson, Niall. 2020. “TikTok Is Inane. China’s Imperial Ambition Is Not.” https://www.bloomberg.com/opinion/articles/2020-08-09/tiktok-is-the-superweapon-inchina- s-cultural-warfare. 9 Nye, Joseph S. 2020. “Perspectives for a China Strategy.” PRISM 8 (4): 120–31. Poling, Gregary B. 2020. “How Significant Is the New U.s. South China Sea Policy?” https://www.csis.org/analysis/how-significant-new-us-south-china-sea-policy. Roach, Stephen. 2020. “America’s Gang of Four Has Spoken, but It Doesn’t Understand Us-China Reality.” https://www.cnn.com/2020/08/04/opinions/americas-gang-offour- stephen-roach/index.html. Rogers, Taylor Nicole. 2020. https://www.businessinsider.com/tiktok-billionaire-zhangyiming- net-worth-lifestyle-2019-11. Wikipedia. 2020. “Intention(criminal Law).” https://en.wikipedia.org/wiki/Intention_ (criminal_law).