November 24, 2014
From Beijing: A Law and a Warning
By Murray Scot Tanner
Senior Research Scientist, CNA Corporation

Beijing’s passage this month of a Counterespionage Law – a revised version of its 1993 National Security Law – sent a powerful message both to Chinese citizens who work closely with foreigners, and to their foreign colleagues. General Secretary Xi Jinping and other Communist Party leaders appear to be increasingly concerned about many of these relationships, and have reaffirmed their authority to subject these ties to heightened scrutiny or surveillance.

Chinese laws are typically drafted too broadly to serve as effective judicial tools, and officials often pass them primarily to send a message about their political concerns. Such messages are distilled in a law’s title, as with the 2005 Anti-Secession Law, whose true aim was to deter advocates of Taiwan’s independence.

By changing the name of the National Security Law to Counterespionage Law, Beijing is apparently signaling heightened concern about relationships between Chinese citizens and foreign governments, nongovernmental organizations (NGOs), corporations, and mass media.

The law comes amidst other signs that Beijing wishes these relationships to be more distant and less political. Earlier this year, for example, NGO leaders reported that China’s new Central National Security Commission, headed by Xi Jinping, ordered an investigation and inventory of groups that have links to, or receive funding from, foreigners.

In a press conference at the Asia-Pacific Economic Cooperation (APEC) CEO Summit earlier this month, Xi Jinping was also dismissive of foreign journalists’ concerns that China was denying them entry visas in retaliation for reporting that embarrassed top leaders.

Since 1993, China has passed numerous laws that have purportedly strengthened the rights of citizens and tightened discipline over government bureaucrats, including new Criminal and Criminal Procedure Laws, and laws on administrative litigation and government transparency. But even though China’s Ministry of State Security indicated that one reason it drafted the new Counterespionage Law was to bring the original law into line with this subsequent legislation, it is striking how much of the spirit and the letter of the original law has changed very little or not at all.

Like its 1993 predecessor, the new law still deems that every Chinese citizen and group has a legal responsibility to actively support what the party and government call their “counterespionage” work. The new law still grants citizens no right to remain silent in the face of these investigations. It also expands the authority of security officials to administratively detain people, confiscate financial assets, or conduct electronic surveillance. Yet it says almost nothing about the role of courts or procurators in overseeing this activity.

Finally, foreigners who work with Chinese colleagues should be aware that the law appears to require their colleagues to keep secret any interactions they have with State Security departments regarding these investigations.

For the international community, Article 25 appears to have significant potential for abuse: It bans the possession and use of technologies that it designates as “especially for espionage purposes,” but does not state which technologies meet that definition

In a rare example of legislative pushback, Chinese lawmakers apparently revised the draft slightly, adding a clause that vaguely asserts that government or state security regulations shall clarify what such technology is.

But in an age of dizzying innovation, when so much consumer technology contains photographic, scanning, encryption, or communications technologies that could certainly have been labeled espionage equipment just 15 years ago, the law offers little reassurance that Chinese and foreign citizens or companies will not face abuse resulting from the broad discretion that state security officials have in identifying “espionage technology.”

There may still be opportunities to shape the debate over the Counterespionage Law’s contents. In China, the passage of such laws is followed by another round of bureaucratic fighting over the law’s “implementing regulations,” which define its real meaning as policy.

At a bare minimum, China’s partners, including the United States, should urge adoption of explicit, openly published regulations narrowly limiting which technologies the law deems as suspect. Chinese advocates of legal reform, however, will face a greater challenge, contemplating just how much the 1993 law has really been changed, and how to bring the new law more in line with the best elements of two decades of legal reform.

Murray Scot TannerMurray Scot Tanner, Ph.D., is a Senior Research Scientist in the China Studies Division at CNA Corporation, a non-profit research and analysis organization. These views are his own and not necessarily those of CNA Corporation.