Bad as it Ever Was: Notes on the Espionage Law

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The interest in recent revisions to China’s Counter-Espionage Law (the “Espionage Law) reflects the current atmosphere of growing international suspicion and the rising prominence of national security concerns. In China, this has manifested as its ‘holistic view of national security’- a phrase now directly invoked in the Espionage Law- that encompasses an expansive understanding of national security and emphasizes vigilance against security risks in all areas. Recent cases alleging espionage and other threats to national security demonstrate the very real consequences of such an outlook, and the broad powers available to enforce it.

The revisions to the Espionage Law themselves, however, are probably less consequential than some imagine. Many of the amendments incorporate previously released legal authority that has already gradually expanded counter-espionage work and powers since the law was adopted in 2014. This includes the Law’s Implementation Rules, released in 2017, which went into greater detail on enforcement procedures, and Provisions on Counter-espionage Security Precautions’ (the “Precautions Provisions”) that have now been incorporated as Chapter II of the law.

Specific revisions will be discussed in detail below, but first, a few things to keep in mind:

1. This is a law focused on espionage and national security. By its nature, it assumes the existence of bad actors and seeks to stop them. This can come across as heavy-handed or bordering on paranoid, but is less distressing than when national security and espionage concerns permeate other laws, such as in the Foreign NGO Law, where security concerns are seemingly prioritized over other values to stifle many interpersonal international exchanges.

2. Chinese authorities have long had an essentially free hand in addressing national security concerns. Such cases are often cloaked in secrecy and the laws involved are sometimes amorphous and vague, leading to selective, or even arbitrary, enforcement. This is the background in which the law arises, and the law does little to fix the situation. Broad discretion might be viewed as necessary to address threats to national security, but the resulting uncertainty about the scope of enforcement is contrary to the rule of law.

3. The Espionage Law discusses both criminal and non-criminal espionage. Criminal charges are found in the Criminal Law, which has a section on ‘crimes endangering national security’ including the offenses of espionage and obtaining/providing state secrets or intelligence. While these charges are very broadly defined, the Espionage Law goes further and provides for an even broader range of more minor offenses that are considered administrative violations in China’s legal system and are usually punishable by a maximum of 15 days detention and fines imposed directly by law enforcement without a court trial.

Definition of Espionage- Scope

Much of the media discussion of the revised law has focused on the expanded definition of espionage in Article 4. The acts of espionage described there can be summarized as follows, with new content indicated in red:

Activities endangering national security, domestically or abroad, that are instigated, supported, or carried out by espionage organizations or their collaborators.
Participation in an espionage organization or accepting tasks from one; or seeking to align with an espionage organization.
Attempts to illegally obtain or share state secrets, intelligence, or other data, materials, or items related to national security or national interests, which are carried out by or for foreign elements other than espionage organizations.
Network attacks, intrusions, or disruptions targeting critical information infrastructure or entities involved with secrets.
Identifying targets for enemies.
Other acts of espionage.

Intuitively, the definition is important because the subsequent articles elaborate on the procedures and consequences for investigations into these acts, as well as general obligations to report such conduct. The expanded definition does not ‘criminalize’ additional conduct, but individuals committing acts of espionage can be detained for up to 15 days and deported or barred from China, and substantial fines can result for individuals or organizations. (Article 54)

The unfortunate reality is that the scope of ‘espionage’ has already been so broad that it isn’t immediately clear what the impact of the expanded definition will be. Even beyond the definition’s final catch-all category of “other espionage”, consider the previous expansion of law enforcement authority in the Law’s Implementation Rules.

Article 70 of the original law provided that relevant provisions of the Espionage Law also apply to the investigation, punishment, or prevention of conduct other than espionage that endangers national security. Usually, an article like this, found in the Law’s closing ‘supplemental provisions’ is meant only to extend the law’s procedures to other cases under the same authorities’ jurisdiction that aren’t specifically addressed in the law, and one wouldn’t expect to find a major expansion of the Law’s focus law here. The Implementation Rules, however, clarified that this non-espionage activity includes a wide range of activity well beyond what one might usually expect to find in an Espionage law, (Article 8, see box 1 and note the final item of foreigners insisting on meeting with people highly suspected of endangering national security).

The later Precautions Provisions regularly refer to “espionage and other conduct endangering national security” in detailing counter-espionage security requirements. By doing so, the Provisions place all ‘conduct endangering national security” within the scope of counter-espionage work, effectively merging this non-espionage conduct with espionage. Tibet’s local provisions for counter-espionage security precautions even directly incorporate some of the Implementation rule’s examples of non-espionage conduct endangering national security on religion and ethnic separatism into their definition of counter-espionage security precautions. (Article 2)

Article 4(3)- obtaining state secrets and other materials related to national security and interests

Look now at the expansion of the revised Law’s article 4(3), which defines espionage to include not only illegally obtaining/providing state secrets and intelligence, but also any other information and materials related to national security and national interests. The added language is a clear expansion of the scope of protected materials, and unworkably vague on its face; at the same time, the law was already so broad and unworkably vague, that it is not immediately clear what the expansion includes. Consider these earlier definitions of state secrets and intelligence:

Intelligence: Matters related to national security and interests that have not been publicly disclosed or that should not be publicly disclosed in accordance with relevant regulations. (Per a Supreme People’s Court Interpretation on the Crime of Obtaining Intelligence to provide it to foreign interests, at article 1).

State Secrets: Matters related to national security and interests, designated through legally-prescribed procedures, and known to a limited range of persons for a set period of time. (State Secrets Law article 2). An additional list is provided of secret matters that must be considered state secrets if their disclosure might harm state security and interests in areas including but not limited to politics, economics, national defense, and diplomacy (article 9):

1. Secret matters in major decisions in state affairs;
2. Secret matters in national defense construction and activities of the armed force;
3. Secret matters in diplomatic and foreign affairs activities as well as matters subject to confidentiality obligations;
4. Secret matters in national economic and social development;
5. Secret matters in science and technology;
6. Secret matters in activities to preserve national security and in the pursuit of crimes;
7. Other secret matters that have been designated by the administrative departments for state secrets.

Unlike ‘intelligence’ state secrets are intended to be clearly labeled with their level of classification and other information. In 2001, however, the Supreme People’s Court found that for the purposes of related crimes, even unlabeled materials on matters that the offender knew or should have known were related to national security or interests could be considered state secrets. (Article 5).

In reviewing these definitions, it’s clear that many materials “related to national security and interests” were already included in the definitions of state security and intelligence, even when they weren’t clearly labeled as secret, and even where they had already been improperly publicly disclosed. In interpreting the statute, we should assume that the new language has meaning, but the previous definition is so broad it’s hard to understand what the intended scope is.

It seems unlikely that the distinction between intelligence and the “other documents, data, materials, and items” is intended to now expand the included materials to include even information related to national security and interests that was legally disclosed. Could it be that the language was only intended to list the formats that such information might take? Interestingly, article 38 of the law authorizes the state secrets departments to make determinations only as to whether information is intelligence and state secrets in violations of the Law, ignoring the added language entirely.

What is clear is that the state security authorities continue to have broad discretion in identifying and investigating espionage.

Article 4(4)- Cyber-attacks and Incursions.

Where the draft revisions had only added providing information on network vulnerabilities of critical information infrastructure, the final version of the Law shifted its focus to the cyber-attacks or incursions themselves. The targeted entities were also expanded from critical information infrastructure to also include all state organs and units involved with secrets.

While this is a new portion of the Espionage Law it is more intuitively a part of preventing espionage and has not been as large a focus of attention. The Criminal Law already contains specific offenses related to attacks and incursions on computer systems in article 286 et seq., and less serious offenses are addressed as administrative violations in article 29 of the Public Security Administration Punishments Law. Protections against such attacks have already been required in the Cyber-security Law, provisions on critical information infrastructure, and the Precautions Provisions. Public security forces have been granted vast authority to inspect the security of all network-using units, including through remote online inspections.

Article 4(2)- Seeking to align with an espionage organization or its agents.

This addition has received less attention than it should in media discussions. The Law’s Implementation Rules (article 4) provide that espionage organs and their agents are to be designated by the Ministry of State Security, and are defined by their involvement activities endangering national security.

The new language adds that not only ‘participation’ in such an organization, or accepting tasks from its agents are forms of espionage, but also “seeking to align with them”. The Chinese for this phrase”投靠” might also be understood as ‘throwing in’ with them, ‘going over’ to them, or even ‘seeking their protection’. The unclarity of the term, as well as the clear implication that it is an association requiring less than active participation in espionage, is troubling as it may justify penalizing more casual interactions with foreigners.

Other Amendments of Note

Counter-Espionage Security Precautions

As mentioned above, the Provisions on Counter-Espionage Security Precautions have been partially incorporated as Chapter II of the Espionage Law. The Provisions were notable for both shifting the focus from enforcement to prevention, and for calling on the whole of society to be vigilant against espionage and national security threats. State security authorities were given powers to oversee and inspect the implementation of precautionary measures. These core concepts are now part of the law, and the specific Precautions Provisions should remain effective as well.

The law also incorporates the concept of Key Units for national security precautions, units designated by the state security authorities to have additional security responsibilities. (Precautions article 9, Espionage Law article 17-20).

Construction

Article 21 now contains new provisions on permitting and regulation for construction projects that might involve national security concerns and designating security areas. While such rules have not previously appeared in the Espionage Law or the major subsequent authority, regional implementation rules such as those for Tibet have contained similar language (art. 20).

Investigative Procedures

Most of the new language of Chapter III closely tracks that in other authority, adapting to the counter-espionage context. The law enforcement powers draw heavily on the rules for investigating both crimes and administrative violations. In some cases, this leads to an expansion of those powers, because rules once only applicable to more serious criminal cases apply to all espionage cases.

Consider Article 28, on ‘summons’ for questioning as an example. The language closely tracks the language of the Law on Public Security Administration Penalties articles 82 and 83 to impose time limits for the summons. An exception is added to a requirement that the suspects’ family be notified however, that notice may be delayed where it would impede the investigation. A similar exception exists in Criminal Procedure Law article 85, relating to family notification in the detention of suspects of national security or terrorism crimes. Again, the national security view is used to justify an increased power, even where a crime might not be constituted. The use of most investigative powers is subject only to the internal approval of state security authorities at the districted-city level or higher.

Exit and Entry Bans

Most of the relevant language regarding bans on entering or leaving China (Articles 33-35) closely tracks the Entry/Exit Administration Law. Under that law, for example, foreigners may already be denied entry if the are potential threats to national security (Article 25(2)), and citizens may be denied exit if they might endanger national security (article 12 (5)).

The second paragraph of Article 33, concerning exit bans for all persons suspected of espionage, is new to the Espionage Law. It expands slightly on the Exit/Entry Law, which only prohibits those suspected of ‘crimes’ from leaving (Article 12(2) for citizens and 28(1) for non-citizens). This is another expansion, however, that was made in the Implementation rules (article 24) and has already been in effect. As compared to the Implementation Rules, The Law only adds a small protection by requiring that state securities at the provincial level make the determination, rather than allowing lower-level authorities to do so.

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