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Which Western institutions aid and abet Chinese censorship? Major Internet companies probably come immediately to mind. In Peering down the Memory Hole: Censorship, Digitization, and the Fragility of Our Knowledge Base, Glenn Tiffert highlights an unexpected set of additional accomplices: scholarly archival platforms.

Tiffert shows that digitization makes it possible for censorship to disappear into the apparently limitless, but silently curated, torrents of information now available—adding a valuable example to Zeynep Tufekci’s catalog of ways that information is distorted online. He explains how “the crude artisanal and industrial forms of publication and censorship familiar to us from centuries past” may shortly give way to “an individuated, dynamic model of information control powered by adaptive algorithms that operate in ways even their creators struggle to understand.”

In 2017, Cambridge University Press “quietly removed 315 articles and book reviews from the online edition of the respected British academic journal The China Quarterly, without consulting the journal’s editors or the affected authors,” making them inaccessible to subscribers in China. While the press ultimately reversed itself, “Springer Nature, which bills itself as the largest academic publisher in the world, capitulated to Chinese requests, effectively arguing that its censorship of over 1,000 of its own publications was a cost of doing business.”

It is possible to alter the archive in even less visible and more global ways. Punishing resource constraints and a turn to digitization have led many libraries to deemphasize physical collections. Unlike the difficult maneuvers required to rewrite history in Orwell’s 1984, the centralization of digital collections makes it relatively simple to tweak censorship so that it reflects whatever past is most useful to the present. Tiffert analyzes how Chinese censors removed most of one side in a debate in “the two dominant academic law journals published in the PRC during the 1950s,” whose print editions “document the construction of China’s post-1949 socialist legal system and the often savage debates that seized it.” These law journals are particularly useful targets for censorship because there are few complete print runs outside the PRC, and the print volumes are fragile and often stored off-site, so digital versions are the only way most people can encounter them. (It is striking that the PRC devoted resources to this obscure corner of legal history, rather than simply trying to shape contemporary accounts of that history.)

The selective editing of online editions “materially distort the historical record but are invisible to the end user,” potentially deceiving good-faith researchers. Tiffert explains that the original issues from 1956 through 1958 “chronicle how budding debates over matters such as judicial independence, the transcendence of law over politics and class, the presumption of innocence, and the heritability of law abruptly gave way to vituperative denunciations of those ideas and their sympathizers.” The online databases, however, have removed 63 articles, constituting more than 8% of the articles and 11% of the total page count during this critical three-year period.

The missing articles are often lead articles—that is, articles the editors presumably thought were especially important. The deletions are often invisible. The online tables of contents show no omissions, and while one of the two authorized platforms on which the censored versions appear would allow counting of page numbers to reveal omitted sequences, the other simply omits page numbers. Tiffert argues that the suppressed authors “promoted values associated with the rule of law and greater separation between party and state,” making it embarrassing for the PRC to preserve “the record of their arguments and the persecutions they endured,” given the unitary version of Chinese history the government prefers.

Tiffert focuses on two publications, but points out that People’s Judicature (the official publication of the courts) and a leading social science journal are missing entire issues. And censorship of more current topics is even more pervasive, including the disappearance of President Xi Jinping’s 2001 doctoral dissertation from databases. A user who searches the online archives of the official party newspaper for sensitive terms that appeared in print can lose access, or get different results “depending on whether the vendors supplying access to the archive host their servers in China or outside of it.” As Tiffert shows by developing his own algorithm, which does a pretty good job of targeting the disfavored articles (he reports a 95% success rate), much of this censorship can be automated.

Copyright law shows up as an additional problem. The U.S. restoration of copyright in foreign works prolongs copyright for 95 years from publication, allowing the Chinese government to assert exclusive U.S. rights in the journals for decades to come (either by claiming copyright ownership directly or pressuring whatever Chinese entity claims copyright to enforce its rights—it is not clear who the owners are under Chinese law, though obviously the current commercial database providers are confident that they have permission from the owners). Though Tiffert notes the §108 limitation for libraries allowing them to make limited copies in the last 20 years of the extended term, he unfortunately does not discuss the strong case for fair use for any article censored by the Chinese government. Today’s fair use jurisprudence provides (1) clear protection for creating a database of all articles, including censored ones, and providing relevant snippets in response to user search, and (2) strong reason to think that providing full access to censored articles would be fair. But it is not surprising that fear, uncertainty and doubt surrounding copyright would deter scholarly archives that might otherwise be willing to preserve and protect this history, especially if they are associated with colleges or universities hoping for a lucrative flow of students from China.

Fair use could be an important addition to Tiffert’s recommendations, including “[d]emanding that providers make unredacted collections available on alternate servers beyond the reach of interested censors.” He also suggests “industry-wide best practices to uphold the integrity of our digital collections,” which would include “transparently disclos[ing] omissions and modifications.” But his larger appeal is ethical: principles that would prevent institutions in democratic societies from accepting this kind of censorship of the past.

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Cite as: Rebecca Tushnet, Invisible Holes in History, JOTWELL (October 1, 2020) (reviewing Glenn D. Tiffert, Peering down the Memory Hole: Censorship, Digitization, and the Fragility of Our Knowledge Base, 124 Am. Hist. Rev. 550 (2019), available in draft at The Washington Post),