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Cheatsheet for new counter-espionage rules

Much of the new implementation rules aim to integrate other laws into the enforcement of the 2014 Counter-espionage Law. A few provisions, however, seemingly expand the scope or range of state security powers, and may prove important. No provisions introduce new limitations on the exercise of authority.

Most important is the expansion of the scope of state security powers when investigating acts of subversion that are not espionage. A new list in article 8 of these Rules explains what situations the broad investigative powers apply to, including religious activity seen as threatening national security.

Article 21 revises the Law’s rule that one is only punished for refusing to hand over evidence against someone one ‘knows’ is conducting espionage when requested to do so by authorities. This knowledge requirement is now met when state security tells you the person is committing espionage.

Article 22 includes the refusal to provide assistance to counter-intelligence work as a means of intentionally obstructing that work, punishable by up to 15 days of administrative detention with no court trial.

Article 6 expands prohibited ‘funding’ of espionage conduct to include the funding of those who are carrying out espionage conduct, even if the funding isn’t used for that purpose. There is also no requirement on its face that the funder must know the group is conducting espionage.

There are many important, and often objectionable elements of the Counter-espionage law not touched upon here, and it is worth reviewing that law, as well as the National Security Law, in their entirety.

In the chart below, I have annotated our translation of the new Implementation Rules in the right-hand column. Cells in Gray are less important, YELLOW are somewhat important, and those in RED are the most important.
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Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site Chinalawtranslate.com, dedicated to improving mutual understanding between legal professionals in China and abroad.
He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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