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PRC Counter-Espionage Law (Draft Revisions) (2nd Reading Draft)

Table of Contents

Chapter I: General Provisions

Chapter II: Security Precautions

Chapter III: Inspections and Handling

Chapter IV: Safeguards and Oversight

Chapter V: Legal Responsibility

Chapter VI: Supplemental Provisions

Chapter I: General Provisions

Article 1: This Law is formulated on the basis of the Constitution so as to prevent, stop and punish acts of espionage, preserve national security, and protect the people's interests.

Article 2: Counter-espionage efforts are to uphold the centralized and unified leadership of the Party center, adhere to the holistic view of national security, persist in combining public and secret efforts, combining specialized work and mass line work, persisting in active defense, punishment in accordance with law, and addressing both symptoms and root causes, to build a people's line of defense for national security.

Article 3: Counter-espionage efforts shall be conducted in accordance with law, respect and protect human rights, and protect the lawful rights and interests of individuals and organizations.

Article 4: "Acts of espionage" as used in this Law refers to the following conduct:

(1) Activities that endanger the national security of the People's Republic of China that are carried out, prompted, or funded by a espionage organization and its agents, or carried out by agencies, organs, individuals, or other collaborators domestically or outside the PRC borders;

(2) Participation in an espionage organization or acceptance of tasks from an espionage organization and its agents, or seeking to align with a espionage organization and its agents;

(3) Activities carried out, instigated or funded by foreign institutions, organizations and individuals other than espionage organizations and their representatives, or in which domestic institutions, organizations or individuals collude, to steal, pry into, purchase or illegally provide state secrets, intelligence, and other documents, data, materials, or items related to national security, or in which state employees are incited, enticed, coerced, or bought over to turn traitor.

(4) Providing information such as on network security vulnerabilities of critical information infrastructure to espionage organizations and their agents;

(5) indicating targets for enemies;

(6) conducting other espionage activities.

This law applies where espionage organizations and their agents engage in espionage activities targeting a third country within the territory of the People's Republic of China or using citizens, organizations, or other conditions of the PRC, endangering the PRC's national security.

Article 5: The state is to establish mechanisms for coordinating counter-espionage efforts, and planning and coordinating major matters in counter-espionage efforts, to research and resolve major issues in counter-espionage efforts.

Article 6: State security organs are the organs in charge of counter-espionage efforts.

Relevant departments such as for public security and state secrets, and relevant military departments are to follow their duties and division of labor to closely collaborate, strengthen coordination, and do their work well in accordance with law.

Article 7: Citizens of the People's Republic of China have an obligation to preserve the nation's security, honor, and interests; and must not endanger the nation's security, honor or interests.

All state organs and armed forces, each political party and all people's organizations, enterprises, public institutions and other social organizations, have an obligation to prevent and stop acts of espionage and to preserve national security.

State security organs must rely on the support of the people in counter-espionage efforts, mobilizing and organizing the people to prevent and stop acts of espionage.

Article 8: All citizens and organizations shall support and assist counter-espionage efforts in accordance with law, and shall protect state secrets and secrets of counter-espionage efforts that they are aware of.

Article 9: The State is to protect individuals and organizations that support, assist, and cooperate with national intelligence efforts.

Individuals and organizations with outstanding contributions to counter-espionage efforts are to be given commendations and awards in accordance with relevant state provisions.

Article 10: Acts of espionage endangering the PRC's national security that are carried out, instigated, or funded by foreign institutions, organizations, or individuals, or that are carried out by domestic institutions, organizations, or individual colluding with foreign institutions, organizations or individuals; must be legally pursued.

Article 11: State security organs and their staff shall handle matters strictly in accordance with law, must not exceed or abuse their authority, and must not infringe the lawful rights and interests of individuals and organizations.

Individuals' and organizations' information that is obtained by state security organs and their staff during the lawful performance of duties in counter-espionage efforts, can only be used in counter-espionage efforts. State secrets, work secrets, commercial secrets, and personal privacy, shall be kept confidential.

Chapter II: Security Precautions

Article 12: State organs, people's organizations, enterprises, public institutions, and other social organizations bear entity responsibility for that unit's efforts on counter-espionage security precautions, are to implement counter-espionage security precaution measures, and are to educate their units' personnel on maintaining national security, and mobilize and organize them to prevent acts of espionage.

In accordance with their duties and division of labor, all levels of local people's governments and relevant departments for industry are to manage efforts related to counter-espionage security precautions in the corresponding administrative region and industry.

State security organs are to coordinate, guide, oversee, and inspect counter-espionage security precaution efforts in accordance with law.

Article 13: All levels of people's government and relevant departments shall organize and carry out publicity and education on counter-espionage security precautions, include knowledge of counter-espionage security precautions in the content of education, training, and popular legal education publicity, to enhance the entire population's awareness of counter-espionage security precautions and national security literacy.

Units such as for news, radio, television, culture, and internet information services shall carry out targeted publicity and education on countering espionage for the public.

Article 14: No individual or organization may unlawfully obtain or possess any documents, data, materials or items that are state secrets.

Article 15: No individual or organization may unlawfully produce, sell, possess, or use specialized espionage devices that are specially used for espionage activities. The departments for national security under the State Council are to designate specialized espionage devices in accordance with relevant state provisions.

Article 16: All citizens and organizations discovering acts of espionage shall promptly report them to the state security organs; where there are reports to public security organs or other state organs or organizations, the relevant organ or organization shall immediately transfer them to be handled by the state security organs.

The state security organs shall publicly disclose the telephone numbers, addresses, websites, and so forth for accepting reports, promptly address reported information in accordance with law, and maintain the confidentiality of the informants.

Article 17: The State is to establish a management system for key units for counter-espionage security precautions.

Key units for counter-espionage security precautions shall establish work systems for counter-espionage security precautions, fulfil counter-espionage security precaution work requirements, and clarify the internal functional departments and personnel bearing responsibility for counter-espionage security precaution duties.

Article 18: Key units for counter-espionage security precautions shall strengthen education and management on counter-espionage security precautions for personnel involved with secrets, and conduct oversight and inspections of persons leaving posts and positions during the declassification period.

Article 19: Key units for counter-espionage security precautions shall strengthen routine security prevention management for matters, locations, and media involving secrets, and employ physical counter-espionage measures such as isolated reinforcement, closed management, and setting up warnings.

Article 20: Key units for counter-espionage security precautions shall strengthen technical counter-espionage preventions for critical parts of departments, network facilities, and information systems in accordance with the state security organs' requirements and relevant standards, and employ corresponding technical measures and other necessary measures.

Article 21: The State is to implement a permitting system for construction projects related to national security.

All levels of local people's government at the county level or above that are compiling citizen economic and social development plans, territory plans, and other relevant plans shall fully consider national security factors, give full consideration to the needs of counter-espionage security precautions, and solicit the opinions of the state security organs.

Where newly constructing, renovating, or expanding important state organs, national defense military work units, and other important units involved with secrets as well as in the security control areas surrounding important military facilities, the state security organs are to implement construction project permitting for matters involving national security.

The demarcation of security control areas shall comprehensively consider development and security, and adhere to the principles of rationality, reasonableness, and necessity; and the state security organs are to jointly demarcate in collaboration with departments such as for reform and development, natural resources, housing and urban rural construction, secrets, defense science and technology industry, as well as the relevant military departments, and report them for approval to the provincial, autonomous region, or directly governed municipality people's governments, and dynamically update them.

The State Council department for national security, in conjunction with relevant departments, is to draft specific implementation measures on permits for construction projects related to national security

Article 22: Logistics and transport units such as the postal service and couriers, and telecommunications operators, and internet service providers shall provide technical support and assistance for counter-espionage efforts in accordance with law. Where information or leads on acts of espionage are discovered, they shall be immediately reported to the state security organs and corresponding measures are to be employed as required by the state security organs.

Article 23: As needed for counter-espionage efforts, state security organs may work together with relevant departments to draft standards for counter-espionage technical protections, and guide the relevant units in implementing counter-espionage technical protective measures; and in units with latent risks, counter-espionage technical protection inspections and tests may be carried out after passing strict approval procedures.

Chapter III: Inspections and Handling

Article 24: State security organs are to lawfully exercise the authority provided for in this Law and relevant laws during counter-espionage efforts.

Article 25: When state security organ staff are performing tasks in accordance with law, they are to present employment identification in accordance with provisions, and have the right to examine the proof of identification of Chinese citizens and foreign persons, and to question relevant individuals and organizations on relevant circumstances; and may examine the items on the person of persons whose identity is unclear or who are suspected of acts of espionage.

Article 26: When state security organ staff are performing tasks in accordance with law, with the approval of the person responsible for a state security organ at the districted city or above, and upon presenting employment identification, they may inspect the electronic equipment, facilities, programs, and tools of relevant individuals and organizations. Where situations endangering national security are discovered during the inspections, the state security organs shall order them to employ immediate corrective measures. When necessary, the state security organs may carry out testing. Where corrections are refused of requirements are still not met following the corrections, sealing or seizure may be implemented.

After the situation endangering national security has cleared, the state security organs shall promptly release the sealing or seizure of electronic equipment, facilities, programs, or tools that were sealed or seized in accordance with the preceding paragraph.

Article 27: Based on relevant state provisions, when state security organ staff are performing tasks in accordance with law, with the approval of the person responsible for a state security organ at the districted city or above, they may read or collect relevant documents, data, materials, or items, and relevant individuals and organizations shall cooperate. The reading and collection must not exceed the scope and extent necessary to carry out tasks.

Article 28: Where it is necessary to summon persons who violate this Law, it is to be upon to approval of the responsible person for the state security organs' case-handling departments, and a written summons is to be used. State security organ staff who present their employment identification in accordance with provisions may orally summon persons who violate this Law and are discovered at the scene, but this shall be noted in the record of questioning. The person being summoned shall be notified of the reason and basis for the summons. For persons who refuse to receive the summons without legitimate reasons or who try to avoid summons, summons may be compulsory.

The state security organs shall conduct questioning in a designated location in the city or county where the person being summoned is located, or in that person's residence.

The state security organs shall promptly question the person being summoned, and investigate and verify. The period for questioning and verification must not exceed 8 hours; but where the situation is complex, and administrative detention might be used or there is a suspected crime, the period questioning for verification must not exceed 24 hours. The state security organs shall provide necessary food and rest time for persons being summoned. Continuous summons are strictly prohibited.

The state security organs shall promptly notify the family of the summoned person of the reason for the summons, except where there is no way to notify them or where doing so would impede the investigation. After the situations described above have passed, they shall immediately notify the summoned person's family.

Article 29: With the permission of the responsible person for a state security organ at the districted city level or higher, state security organs that are investigating acts of espionage may make inquiries into a suspect's relevant property information.

Article 30: With the permission of the responsible person for a state security organ at the districted city level or higher, state security organs that are investigating acts of espionage may conduct inspections of persons, items, or locations related to acts of espionage in accordance with law.

Where female persons are inspected, it shall be carried out by female personnel.

Article 31: With the permission of the responsible person for a state security organ at the districted city level or higher, state security organs that are investigating acts of espionage may lawfully seal, seize or freeze locations, facilities, or property suspected of being used in acts of espionage; but must not seal, seize or freeze locations, facilities, or property that is unrelated to acts of espionage.

Article 32: State security organ staff that employ measures such as reading and collection, summons, inquiries into property, or sealing, seizure, and freezing during counter-espionage efforts, shall have at least 2 persons carry out the measures, present their employment identification and relevant legal documents in accordance with provisions, and have the related personnel sign or affix a seal to related records and other written materials. State security organ staff conducting important evidence collection efforts such as inspections, sealing, and seizures, shall make an audiovisual recording of the entire process, and retain it for future reference.

Article 33: The State Council department in charge of national security may decide to not approve exit from the country for a limited period of time for Chinese citizens who might endanger national security after exiting the country or who might cause major harm to the national interest and are to notify the immigration management bodies.

State security organs at the districted-city level or above may notify the immigration management bodies to not allow persons suspected of acts of espionage to exit the country.

Article 34: Where it is found that foreign persons might conduct activities endangering the national security of the P.R.C. after entering the mainland, the State Council departments for national security may notify the immigration management bodies to not allow their entry.

Article 35: For persons that the state security organs have given notice that entry or exit is not to be allowed, the immigration management bodies shall enforce this in accordance with relevant state provisions, and where the circumstances not allowing exit or entry have passed, the state security organs shall promptly revoke the decision to not allow entry or exit, and shall notify the immigration management bodies.

Article 36: State security organs that discover network attacks, program vulnerabilities, or information content involving acts of espionage, shall promptly report it to the telecommunications departments and internet information departments, which are to follow their duties and division of labor to order the telecommunications operators and internet service providers to promptly employ measures to address it such as repairing vulnerabilities, strengthening network protections, stopping transmission, eliminating programs and content, taking relevant applications off the market, and closing relevant websites, and to store related records. Where the situation is urgent, the state security organs are to order the relevant units to repair vulnerability, stop transmission, and stop related services. The relevant units shall immediately implement this and assist in the investigation.

Article 37: As needed for counter-espionage efforts, and based on relevant state provisions, state security organs may employ technical investigative measures upon strict formalities for approval.

Article 38: Where it is necessary to conduct an evaluation of whether relevant matters are state secrets or intelligence, or to make an assessment of harmful consequences, for violations of this Law or suspected crimes, the department for state secrets or the provincial, autonomous region, or directly governed municipality secrets department is to conduct the evaluation and organize an assessment within a set period of time in accordance with procedures.

Article 39: Where after investigation the state security organs discover acts of espionage that are suspected crimes, they shall open a case and investigate it in accordance with the Criminal Procedure Law of the PRC.

Chapter IV: Safeguards and Oversight

Article 40: State security organs staff lawfully performing their duties receive legal protections.

Article 41: When state security organs investigate to learn of circumstances related to acts of espionage and gather relevant evidence, relevant individuals and organizations shall provide the truth and must not refuse.

Article 42: As needed to carry out urgent tasks, state security organ staff enjoys facilitated transit such as priority access to public transportation and right of way upon presentation of employment identification.

Article 43: When state security organ personnel are performing tasks in accordance with law, they may follow provisions to present employment identification to enter relevant venues and units; and on the basis of relevant national regulations, and upon approval and presentation of employment identification, they may enter relevant restricted regions, venues or units.

Article 44: As needed for counter-espionage efforts, state security organs may, in accordance with national regulations, have priority use of, or requisition in accordance with law, state organs', people's organizations', enterprises', public institutions', organizations' and other social organizations' or individuals' transportation, communications tools, locations and buildings; and when necessary, they may set up relevant work sites, facilities, and equipment; and after the completion of the task, these shall be promptly returned or restored to their original condition, and the corresponding fees are to be paid in accordance with provisions. Compensation shall be made where damages are caused.

Article 45: As needed for counter-espionage efforts, and on the basis of relevant national provisions, state security organs may request that customs, immigration management, or other inspection organs facilitate by waiving inspections or simplifying procedures. The relevant inspection organs shall provide assistance in accordance with law.

Article 46: When state security organ personnel performing tasks are threatened, or where persons or their families are threatened as a result of assisting in carrying out counter-espionage work tasks, the state security organs shall lawfully employ necessary measures to protect and aid them in collaboration with relevant departments.

Where individuals or their close relatives face threats to their physical safety as the result of supporting or assisting counter-espionage efforts, they may request protection from the state security organs. The state security organs shall employ protective measures in conjunction with the relevant departments.

Where individuals or organizations have property losses due to supporting or assisting counter-espionage efforts, compensation is to be given based on relevant state provisions.

Article 47: The state shall arrange appropriate placements for persons who have made contributions to counter-espionage efforts and require a placement.

Relevant departments, such as for public security, civil affairs, finance, health, education, human resources and social security, veterans affairs, healthcare security, and immigration management as well as state-owned enterprises and public institutions, shall assist state security organs in completing work on placements.

Article 48: Where disability or death was caused as a result of carrying out, supporting, or assisting counter-espionage efforts, corresponding bereavement benefits are to be given based on relevant state provisions.

Article 49: The state encourages technical innovation in the counter-espionage field, giving play to the role of technology in counter-espionage efforts.

Article 50: The state security organs shall strengthen the establishment of professional counter-espionage forces and talent, and professional training, to increase capacity for counter-espionage efforts.

Political, theoretical, and operational training for state security organ staff shall be conducted in a planned manner. Training shall persist in connecting theory with practice, teaching according to needs, and stressing practical results to increase professional ability.

Article 51: State security organs shall strictly implement internal systems for oversight and security review, conduct oversight of their staff's compliance with laws and discipline, and lawfully employ necessary measures, conducting periodic or unscheduled security reviews.

Article 52: All individuals and organizations have the right to report or make accusations to the State security organ at a higher level, supervision organs, people's procuratorates, or other relevant departments, regarding a state security organ, or its personnel, exceeding or abusing their authority or their other unlawful conduct. State security organs, supervision organs, people's procuratorates, or other relevant departments receiving reports or accusations shall promptly ascertain the facts and take responsibility for addressing them, and they are to notify the informant or accuser about the outcome of the handling.

No individual or organization may suppress or take revenge against persons or organizations for supporting or assisting state security organs' efforts or for making reports or accusations in accordance with law.

Chapter V: Legal Responsibility

Article 53: Where acts of espionage are carried out and a crime is constituted, criminal responsibility is to be pursued in accordance with law.

Article 54: Where acts of espionage are carried out, but do not constitute a crime, the state security organs are to give warnings or up to 15 days of administrative detention, and/or give an independent or concurrent fine of up to 100,000 RMB, and where unlawful gains are 100,000 RMB or more give an independent or concurrent fine of between 1 and 10 times the value of unlawful gains, and relevant departments may give sanctions in accordance with law.

Where information, funds, materials, labor, technology, venues, or other support and assistance are provided to those that one knows are carrying out acts of espionage, but it does not constitute a crime, punishment is to be given in accordance with the preceding paragraph.

Where units exhibit the conduct provided for in the two preceding paragraphs, the state security organs are to give warnings and/or give an independent or concurrent fine of between 100,000 RMB and 1,000,000 RMB, and where unlawful gains are 1,000,000 RMB or more give an independent or concurrent fine of between 1 and 10 times the value of unlawful gains, and punish the directly responsible managers and other directly responsible personnel in accordance with the first paragraph of this article.

Based on the circumstances and consequences of violations by the relevant units and individuals, state security organs may recommend that the relevant competent departments lawfully order that engagement in relevant operations or provision of relevant services be stopped, order a suspension of production and business, cancel relevant licenses, or revoke registration. The relevant competent departments shall promptly report back to the state security organs on the administrative handling they take.

Article 55: Where those conducting espionage turn themselves in or make meritorious services, they may be punished leniently, have their sentence commuted, or have punishment waived; where there is major meritorious service, rewards are to be given.

Prosecution may be avoided for those coerced or induced to participate in espionage organizations or hostile organizations abroad and who engage in activities endangering the national security of the People's Republic of China, but promptly and truthfully explain the circumstances to an organ of the People's Republic of China based overseas, or, upon reentering the territory, either directly or through their unit, promptly and truthfully explain the circumstances to a state security organ and express remorse.

Article 56: Where state organs, people's organizations, enterprises, public institutions, and other social organizations fail to fulfill counter-espionage security precaution obligations in accordance with this law, the state security organs may order corrections; where corrections are not made as required, the state organs may meet with the relevant responsible persons, and notify the department at the level above the unit of the meeting; where serious consequences or adverse impact were caused, the state security organs may give warnings and circulate criticism; where the circumstances are serious, the relevant departments are to give sanctions to the responsible leaders and directly responsible persons in accordance with law.

Article 57: Where new construction, renovation, or expansion projects violate article 21 of this Law, the state security organs are to order corrections and give warnings; where corrections are refused or the circumstances are serious, order that the construction or use be stopped, suspend or cancel permits, or recommend that relevant competent departments address it in accordance with law.

Article 58: Where article 22 of this Law is violated, the state security organs are to order corrections, give warnings, or circulate criticism, where corrections are refused or the circumstances are serious, the relevant competent departments are to give punishments in accordance with relevant laws and regulations.

Article 59: Where this Law is violated by refusing to cooperate in the collection of data, the state security organs are to give punishments in accordance with the PRC Data Security Law.

Article 60: In any of the following circumstance where this law is violated and a crime is constituted, criminal responsibility is to be pursued in accordance with law; where a crime is not constituted, the state security organs are to give warnings or up to 10 days of administrative detention, and may give a concurrent fine of up to 50,000 RMB:

(1) Leaking state secrets related to counter-espionage efforts;

(2) Knowing that others have committed criminal acts of espionage, refusing to provide, or harboring or covering up relevant evidence when state security organs are investigating the relevant situations and collecting relevant evidence;

(3) Intentionally obstructing state security organs from carrying out their tasks in accordance with the law;

(4) Concealing, transferring, selling, or destroying property that has been sealed, seized, or frozen in accordance with law by the state security organs;

(5) Knowing that property is involved in an espionage case, concealing, transferring, purchasing, or selling it on behalf of others, or otherwise covering it up or hiding it;

(6) Retalliating against individuals and organizations that support and assist counter-espionage efforts in accordance with law.

Article 61: Where documents, data, materials, or items that are state secrets are illegally obtained or possessed, as well as where specialized espionage devices are produced, sold, possessed, or used, but a crime is not constituted, the state security organs are to give warnings or up to 10 days of administrative detention.

Article 62: Property sealed, seized or frozen by State security organs in accordance with this law shall be carefully stored, and is to be handled according to the following circumstances:

(1) where a crime is suspected, it shall be handled in accordance with the Criminal Procedure Law of the People's Republic of China and other relevant laws;

(2) where a crime is not constituted, but there is a violation, confiscate that which shall be confiscated in accordance with law and destroy that which shall be destroyed in accordance with law;

(3) where no violation has occurred, or where the property bears no relation to the case, the seal, seizure, or freezing shall be lifted, and the property is to be promptly returned; any losses that have been caused shall be compensated in accordance with law.

Article 63: Where property involved in the case meet any of the following circumstances, it shall be recovered, confiscated, and have latent threats removed:

(1) It is unlawful gains or the fruits and profits thereof, or is personal property used to carry out acts of espionage;

(2) It is documents, data, materials, or items that are state secrets which were unlawfully obtained or possessed;

(3) It is a specialized espionage device that was unlawfully produced, sold, possessed, or used.

Article 64: The state security organs are to lawfully employ measures such as to recover and confiscate all benefits obtained by an actor or their close relative as a result of the actor carrying out acts of espionage for espionage organizations and their agents.

Article 65: All fines and property confiscated by the state security organs in accordance with law shall be placed in the national treasury.

Article 66: The State Council department for national security may decide to have foreigners who violate this law leave the mainland within a certain period of time or to deport them, and may decide to not allow them to enter the mainland for a certain period of time. Those who fail to leave the country within the set time limit may be deported.

Foreign persons that the State Council national security department has decided to deport are not allowed to enter the mainland for 10 years from the date of deportation, and the punishment decisions of the State Council national security department are final decisions.

Article 67: State security organs making administrative punishment decisions shall inform the parties of the content, facts, reasoning, and basis of the proposed administrative punishment, and notify the parties of the rights they enjoy in accordance with law, such as to make statements and defenses or request a hearing; and are to follow the relevant provisions of the Administrative Punishments Law of the PRC.

Article 68: Parties that don't accept an administrative punishment decision, a decision on administrative compulsion measures, or an administrative permitting decision may apply for a reconsideration to the organ at the level above the one making the decision within 60 days of the date on which they receive the decision; those who don't accept the reconsideration decision may raise a suit in the people's courts within 15 days from the date on which they receive the written reconsideration decision.

Article 69: State security organ staff who abuse their power, neglect their duties or misuse their power to benefit friends and family, or who illegally detain others, extract a confession by means of torture, obtain evidence by means of violence, or leak state secrets, commercial secrets or individual private information in violation of the regulations shall, are to be pursued for criminal responsibility in accordance with the law where a crime is constituted; and where a crime is not constituted, they shall be sanctioned in accordance with law.

Chapter VI: Supplemental Provisions

Article 70: The relevant provisions of this law apply to state security organs performing their duties to prevent, stop and punish activities endangering national security other than acts of espionage in accordance with laws, administrative regulations and relevant national provisions.

The relevant provisions of this law apply to public security organs' conduct in discovering or punishing conduct endangering national security during the performance of their duties in accordance with law.

Article 71: This Law takes effect on xx-xx-xxxx.

 

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