Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
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The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

NEAL FOX FOR NEW STATESMAN
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They know where you live

Imagine your house being raided by armed police. That’s what happened to Mumsnet’s Justine Roberts after she fell victim to an internet hoaxer.

At around midnight on Tuesday 11 August 2015, a man dialled 999 to report a murder. A woman had been killed in her London home, he said, before hanging up without offering his name. A second call followed. This time, the man claimed to be the killer. He told the operator that he had now taken the woman’s children hostage at the Islington address. They were locked with him inside a room in the house, he said. The police responded with reassuring speed. Fifteen minutes later, eight officers, five of them armed with automatic weapons, accompanied by saliva-flecked dogs, arrived at the scene and took up position in neighbouring front gardens. When one officer banged on the front door of the house, the team was greeted, moments later, not by a masked murderer but by a blinking and bewildered au pair.

Justine Roberts, the woman whom the caller claimed to have killed, was in fact nearly 2,000 kilometres away – in Italy, holidaying with her husband and children. After explaining this to the police, the au pair called Roberts, who assumed that the incident was an unfortunate misunderstanding, one that could be unpicked after the vacation. It was no mistake. Roberts had been the victim of “swatting”, the term given to a false emergency call designed to bait an armed unit of police officers to storm someone’s home. It wasn’t until a few days later, as the family was preparing to return to London, that Roberts discovered that she had been the target of a planned and sustained attack, not only on her household, but also on her business.

Roberts is the founder of Mumsnet, the popular British internet discussion forum on which parents share advice and information. A few days before the swatting incident, members of 8chan, a chat room that prides itself on being an open, anonymous platform for free speech, no matter how distasteful, had registered accounts on Mums­net with the aim of trolling people there. When legitimate Mumsnet users identified and then ridiculed the trolls, some retreated to 8chan to plot more serious vengeance in a thread that the police later discovered. Roberts wasn’t involved in the online skirmish but, as the public face of the site, she was chosen as the first target.

After the initial armed response, Roberts’s perception was that the police were unconcerned about the swatting attack. “We were told that there was no victim, so there was not much that could be done,” she told me. The hoax caller, however, was not finished. In the days after the incident, there was chatter on Mumsnet and Twitter about what had happened. A Mumsnet user whom I will call Jo Scott – she requested anonymity for her own safety – exchanged heated messages with a hacker who claimed responsibility for the 999 call.

“It descended into jokes and silliness, like many things do,” Scott said. “I didn’t take it seriously when the hacker said he had big surprises in store.” She doesn’t believe that what happened next was personal. “I think I was just easy to find.”

A few days after police were called to Roberts’s home, Scott was in her bedroom while her husband was sitting downstairs playing video games. At 11pm, she heard a noise outside. “I looked out of the window and saw blue flashing lights in the street,” she recalled. “I could hear shouting but I didn’t pay it much notice.” Then she heard her husband open the front door. Police rushed into the house. An armed officer shouted upstairs, asking Scott if she was hurt. When she replied that she was fine, he told her to fetch her two young children: he needed to see them. Scott shook her sons awake, explaining, so as not to alarm them, that the police had come to show the boys their cars. As the three of them went downstairs, the officers swept up through the house, repeatedly asking if there were any weapons on the property.

“I was beyond confused by this point,” Scott said. “Everyone was carrying a gun. They had little cutaway bits so you could see the bullets. My eldest asked one of the officers if he could have a go on his gun and went to touch it.”

As Scott sat with an officer downstairs, she asked what had happened to her husband. “I later found out that the noises I’d heard were the police calling for him to come outside,” she said. “He dropped the PlayStation controller as he left the room. It was only later that we realised it’s a good job he did: in the dark, the controller might have looked like a weapon.”

Outside, Scott’s husband had been surrounded and arrested. Other police ­officers were on the lookout in the front gardens of nearby properties, having warned the couple’s neighbours to stay indoors, away from their windows. “One of the officers said it was beginning to look like a hoax,” Scott said. “Then he mentioned swatting. As soon as he said that word, I twigged that I’d seen the term that day on Twitter in relation to the Mumsnet hack.”

***

The term “swatting” has been used by the FBI since 2008. “Swat” is an acronym of “Special Weapons and Tactics”, the American police squads routinely called to intervene in hostage situations. It is, in a sense, a weaponised version of a phoney order of pizza, delivered as a prank to a friend’s home, albeit one that carries the possibility of grave injury at the hands of police. For perpetrators, the appeal is the ease with which the hoax can be set in motion and the severity of the results. With a single, possibly untraceable phone call, dialled from anywhere in the world, it is possible to send an armed unit to any address, be it the home of a high-profile actor whom you want to prank or that of someone you want to scare.

In America, where swatting originated, the practice has become so widespread – targets have included Tom Cruise, Taylor Swift, Clint Eastwood and the Californian congressman Ted Lieu – that it is now classed as an act of domestic terrorism. In the UK, where Justine Roberts’s was one of the first recorded cases, swatting is classed as harassment, though that may change if these and other forms of internet vigilante attacks, such as doxxing, become increasingly commonplace.

Doxxing involves the publication of someone’s personal details – usually their home address, phone numbers, bank details and, in some cases, email address – on the internet. It is often the prelude to swatting: after all, the perpetrator of a hoax cannot direct the police to the target’s home address until this is known. (During the week of the Mumsnet attacks, one of the perpetrators attempted to locate another target using their computer’s IP address, which can identify where a person is connected to the internet, often with alarming precision. Their calculation, however, was slightly out; police were called to a neighbour’s address.)

Though doxxing has a less dramatic outcome than swatting, the psychological effects can be just as severe. For victims – usually people who are active on the internet and who have outspoken opinions or who, in the eyes of an internet mob, have committed some kind of transgression – the mere threat of having their personal information made available on the web can cause lasting trauma. A Canadian software developer whose home address, bank details, social security number and email history were published online in 2014 told me that he now keeps an axe by his front door. “I still don’t feel safe here,” he said. “It’s terrifying.”

Christos Reid, a social media manager for a software company, was doxxed last year. Reid’s information came from a website he had registered seven years earlier. “I woke up one morning to find a tweet announcing my personal details,” he told me. When he asked the Twitter account holder to take down the address, he was told to commit suicide. Reid said he was “OK for about half an hour”; but then, after he went out, he broke down in the street. “I’ve become more paranoid,” he said. He no longer gives out business cards with personal information.

Reid lives in London, but at the time of the doxx he was attending an event in Nottingham, home to the British police’s largest cybercrime division. He was impressed with the police response, even though they told him that they had not heard of the term “doxxing” before. “I was interviewed by two separate people about my experiences who then compiled everything into a case file and transferred it to the Met. When I arrived home, an officer visited me to discuss what happened and my options.”

The policeman explained harassment law to Reid, and offered advice on how to improve security at his flat and what to do if someone hostile turned up at the address. Reid shouldered the repercussions of what had happened alone; no suspects were identified. A spokesperson for the Metropolitan Police similarly said that although detectives from Islington CID have investigated the swatting attacks made on Roberts and Scott, no suspects have been identified “at this time”, even as “inquiries continue”.

Doxxing may seem to be a mild form of harassment but it carries with it an implicit threat of impending violence; the worrying message is: “We know where you live.” Unlike swatting, which is always malicious, doxxing is sometimes viewed by its perpetrators as virtuous. In November 2014, hackers claiming to be aligned with the internet group Anonymous published personal information allegedly belonging to a Ku Klux Klan member from Missouri. The hackers said that their action was a response to the KKK’s threat to use lethal force against demonstrators in the city of Ferguson, Missouri, protesting against the killing of the unarmed black teenager Michael Brown by a white police officer. In January 2015 hackers claiming to be from Isis took over US Central Command’s Twitter account and posted information about senior military officers, including phone numbers and email addresses. In each case, those carrying out the doxxing believed, however mistakenly, in the virtue of their actions and hoped that the information could be used to bring punishment or ruin to the subject.

The term “doxxing” may be new but the practice is an old one. The Hollywood blacklist revealed the political beliefs and associations of actors and directors in the late 1940s as a way to invite shame, deny employment and dissuade others from following their example. “But it has become a lot easier to find people’s private details with the help of the internet,” Jeroen Vader told me. Vader owns Pastebin, a website that allows users to upload and distribute text documents, and where much of the personal data is anonymously uploaded and shared. “People post their private information on social networks,” he said. “A lot of people aren’t aware that their information is so easily available to others.”

In Justine Roberts’s case, the perpetrator may not even have needed to look at social networks to mine her personal information. “If you’re on the electoral roll, you’re easy to find,” she said. “There’s not much you can do to stop people getting hold of your data one way or another, whether it’s for nefarious reasons or simply to better advertise to you. We live in a world that is constantly trying to gather more information about us.”

Jeroen Vader said he has noticed an “upward trend” in the number of doxxing posts uploaded to Pastebin in recent months, but insisted that when someone uses the site’s abuse report system these offending posts are removed immediately.

Across social media companies, action is more often reactive than proactive. Victoria Taylor, a former director at Reddit, one of the largest community-driven websites in the world, said that the rule against publishing other users’ personal information has been “consistently one of the site’s most basic policies” and that “any violation of this rule is taken extremely seriously by the team and community”. Still, she was only able to recommend that victims of doxxing send a message to the site’s administrators. Similarly, when asked what a person can do to remove personal details that have been published without permission, a Twitter spokesperson said: “Use our help form.”

The spokesperson added: “There has def­initely been an overall increase in doxxing since 2006, both on Twitter and on the internet more generally.” She attributed this rise to the emergence of search engines such as Intelius and Spokeo, services designed to locate personal information.

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The surge in the number of dox­xing and swatting attacks is in part a result of the current lack of legal protection for victims. Confusion regarding the law on doxxing is pervasive; the term is even not mentioned in either US or European law. In a tutorial posted on Facebook in 2013, the writer claims: “Doxxing isn’t illegal as all the information you have obtained is public,” and adds: “But posting of the doxx might get you in a little trouble.”

Phil Lee, a partner in the privacy, security and information department of Fieldfisher based at the law firm’s office in Silicon Valley, said that differing privacy laws around the world were part of the problem. “Various countries have laws that cover illegal or unauthorised obtaining of data. Likewise, some of the consequences of releasing that data, such as defamation or stalking, cover elements of what we now term doxxing. But there is no global law covering what is a global phenomenon.” Indeed, Roberts believes that her London address was targeted from America – the 999 call was routed through a US proxy number.

One challenge to creating a law on doxxing is that the sharing of personal information without permission has already become so widespread in the digital age. “If a law was to state something like, ‘You must not post personal information about another person online without their consent,’ it wouldn’t reflect how people use the internet,” Lee said. “People post information about what their friends and family members have been doing all the time without their consent.

“Such a law could have a potentially detrimental effect on freedom of speech.”

Lee believes that a specific law is unnecessary, because its potentially harmful effects are already covered by three discrete pieces of legislation dealing with instances where a person’s private information is obtained illegally, when that information is used to carry out illegal acts and when the publication of the information is accompanied by a threat to incite hatred. However, this does not adequately account for cases in which the information is obtained legally, and then used to harass the individual in a more legally ambiguous manner, either with prank phone calls or with uninvited orders of pizza.

Susan Basko, an independent lawyer who practises in California and who has been doxxed in the course of her frequent clashes with internet trolls, believes that the onus should be on the law, rather than the public. She points out that in the US it is a crime to publicise information about a government employee such as their home address, their home and cellphone numbers, or their social security number, even if the information is already online. “This law should apply to protect all people, not just federal employees,” she said. “And websites, website-hosting companies and other ISPs should be required to uphold this law.”

Basko said that doxxing will continue to increase while police have inadequate resources to follow up cases. For now, it is up to individuals to take preventative measures. Zoë Quinn, an American game designer and public speaker who was doxxed in 2014, has launched Crash Override, a support network and assistance group for targets of online harassment, “composed entirely of experienced survivors”.

Quinn, who spoke about the problem at a congressional hearing in Washington, DC in April last year, recently posted a guide on how to reduce the likelihood of being doxxed. “If you are worried you might some day be targeted,” she wrote, “consider taking an evening to stalk yourself online, deleting and opting out of anything you’re not comfortable with.”

Both Scott and Roberts have changed their privacy habits following the attacks. Scott is more careful about interacting with strangers online, while Roberts uses scrambler software, which ensures that she never uses the same password for more than one online site or service.

For both women’s families, the effects of their encounters with armed police have also lingered. When one day recently Roberts’s husband returned home early from work, the au pair called the police, believing it was an intruder. And Scott is haunted by what happened.

“What if my husband had made a sudden move or resisted in some way? What if my eldest had grabbed the gun instead of gently reaching for it? What if people locally believed that my husband did actually have guns in the house?” she asks. “I don’t think the people making these sorts of hoax calls realise the impact.” 

This article first appeared in the 28 April 2016 issue of the New Statesman, The new fascism