Caveat: While I have visited China a half-dozen times before and during my time at Google, I am, obviously, neither an old China Hand nor a legal scholar. My goal is to prompt some soul-searching from Trust and Safety executives about what they are doing and on what justification. This should not be taken as authoritative information about the Chinese legal tradition.
Platform Policies v Abuse: Dawn of Justice
Humans love making up new rules, from the 3,778-year-old Code of Hammurabi up to FIFA adding ridiculous hydration breaks to every 2026 World Cup match. Tech companies have gotten on the bandwagon with thousands of terms of service and policy documents. This adds up to a whole new class of law, akin to the United States Code or France’s 76 current legal codes.
To learn how tech policies compare to other legal systems, I spent weeks working my way through the exhaustive textbook Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical and Operational Perspective by John W. Head. I got an answer that I did not expect.
First, about the book. Head knows his stuff. He is a professor at University of Kansas law school who has taught in the US, Europe, and Asia (including stints in both Hong Kong and Beijing), and previously served as legal counsel to the Asian Development Bank and to the International Monetary Fund.
His book is extensively sourced, with lengthy quotes from historians and legal experts. For example, he put together a 50-page appendix compiling 20 varying definitions of “rule of law” to support his own definition. He also includes an entire law journal article that (hilariously) dramatizes how the O.J. Simpson trial would have gone differently in Europe.
Common law and civil law
Let’s review the suspects. [Yes, I am going to make some corny legal jokes. Please tolerate me, this is what happens after you read 700 pages of a comparative law textbook.]
How about common law, the UK legal system that the US model is based on? Despite being (mostly) American companies, tech policies lack the key feature of common law: judicial independence. “In the common law world, judges occupy a place of high prestige, reflecting in part the fact that for many centuries during the development of the common law they were the principal authors of the law, by virtue of the fact that caselaw – not legislation – constituted the main source of law.” As I’ve written about previously, corporate Trust & Safety teams are embedded deep inside the organization, subordinate to business, legal, and PR imperatives.
Maybe a better fit is the European civil law tradition, which revolves around detailed legal codes with thousands of years of history? Modern laws date back to codes written in the 19th century (like the Napoleonic Code), which were updates of the medieval and renaissance Jus Commune, which was based on the rediscovered 6th-century Byzantine Code of Justinian, which itself was a consolidation of the original laws of the Roman republic and empire. In this tradition, legislatures write the laws, and judges are expected to simply apply them, almost mechanically. That sounds a lot like content raters at big tech companies.
Case closed, then, right? Nope. I have another witness to take the stand who can point out inconsistencies in the defendant’s narrative. [Ugh. OK, that’s too many bad legal jokes. Sorry. I’m done now.]
Platform policies do have a model, but it’s not where you thiiiiiink
Platform policies massively diverge from Western models when it comes to process. Both common law and civil law include extensive procedural law - the civil, criminal, and administrative rules that govern how the justice system works and how the government goes about making decisions that impact citizens’ lives. Platforms don’t do this. The user-facing policies we see are almost entirely substantive law – what is forbidden, and the punishments for breaking the rules.
Even worse, the actual substantive law codes at big platforms are not their public policies at all. Every platform has an extensive set of internal enforcement guidelines (as mentioned in this 2022 YouTube blog post) that provide detailed examples and clarifications for every policy, as instructions to moderators and AI systems. Platforms are very reluctant to share these guidelines, lest they be used by bad actors to find loopholes or evade detection.
Platforms do describe some of their processes in public documents, but they don’t amount to legal codes since they don’t describe platforms’ internal processes beyond the most general terms. They are also not binding on the platform/government in the way that their terms of service bind us. When I worked in counter-abuse technology at Google, process changes could be debated and decided internally at any time. Consent of the governed was only a factor indirectly, in the sense of bad PR.
So, we’re now looking for a legal tradition where A) the laws themselves are mostly instructions to officials, and B) the law is not meant to constrain the government itself. As Head explains it, these are pretty good descriptions of the legal system of dynastic China and, in many ways, modern China.
Dynastic Chinese law and modern Chinese law
I can’t do justice to the 2000-plus year history of Chinese law in one blog post. In short, from around 200 BC until the early 20th century, China was ruled by a succession of imperial dynasties, each of whom updated and re-imposed the same basic legal code. Starting with the 1911 revolution through the end of the Cultural Revolution in 1976, China’s legal system went through multiple radical upheavals. Since then, China has been in the process of building a new legal system, with elements of both Western and Chinese dynastic traditions.
Like platform enforcement guidelines, Chinese dynastic codes were written for bureaucrats, not the people. These codes “represented a set of instructions about how to handle a broad variety of circumstances that bore on the ability of the emperor to govern the empire. Given the [district magistrates’] lack of formal training in matters of law and public policy, it is hardly surprising that this set of instructions (the Code) needed to be extremely detailed.”
Like platforms, the Chinese dynastic legal system was designed to govern the subjects of the empire, not to constrain the actions of the Emperor or his officials. Head calls this not rule of law, but rule by law, “under which government officials apply formal, written, perhaps detailed rules but are not themselves bound by those rules.”
Modern China has added more procedural law, but echoes the dynastic system in that the legal system is not independent. “The western conception of the legal system… does not apply to the Chinese reality, as it has developed in the last decades. The legal system is not an isolated feature of the society, working for itself according to its rules, irrespective of other influences. Rather, it works as a part of an integrated political-legal system of governance.” [Ignazio Castellucci as quoted in Head] To me, this sounds exactly like the subordinate role of Trust and Safety inside big tech companies.
[One last similarity – Head talks about the power of special personal relationships (guanxi) in bending the Chinese legal system, which reminds me of how the best way to get your account back after termination is not to follow procedure, but to know someone who works at the platform.]
Guardianship all over again. Sigh.
Boil it all down, and we’re back to Guardianship. Deciding you’re uniquely qualified to decide how to manage society means you end up focusing on what your people ought to do (substantive law), rather than constraints on how you go about doing your job (procedural law). Rule of law goes out the window in favor of rule by law. Like the pigs and men at the end of Animal Farm, everything starts to blur together:
Even today, the officials and cadres who control the fate of the most populous nation online communities of the world are not subject to the kind of public accountability that is embodied in the political institutions of Western liberal democracies… China is Online communities are still ruled by paternalistic rulers answerable primarily only to their own consciences (as the emperors were answerable only to heaven); thus the transformation which many generations of modern Chinese Internet intellectuals have hoped for of the people from ‘children-subjects’ to ‘citizens’ has yet to be seen.”
Ideas? Feedback? Criticism? I want to hear it, because I am sure that I am going to get a lot of things wrong along the way. I will share what I learn with the community as we go. Reach out any time at [email protected]. Also please share this with anyone you think would be interested. Thanks.
