Open thoughts on the Secrets Law

by Jeremy Daum | 2024/02/27 5:59 PM

It’s probably a sign of how sour the current environment has become that the recent revision of China’s Law on the Protection of State Secrets (Secrets Law) doesn’t seem that momentous. In 2010, when the law was last revised, I pored over it in hopes of finding new limitations on the classification authority. Today, I read the latest version looking only for indications of increased risk for persons working with secrets or doing business in China.

Most of the changes, however, are only updates to address an increasingly digital society, to incorporate or align with new authority, or to improve drafting.

A comparison chart below highlights changes to the law, showing both the additions that were previewed in draft revisions last year and also the subsequent changes to the final draft.

First, however, to highlight a few key points:

Work Secrets: Article 64 contains what is likely the most contentious item, as it increased protections beyond formally classified information. It addresses “work secrets”, which refers to information produced or collected by departments in the performance of their duties, the leaking of which would cause an adverse impact. The earlier draft had required that the leak’s impact would obstruct the work of the departments involved or adversely impact national security and state interests, but the final version seems even broader.

Work secrets and internal documents aren’t a new issue, but it is unfortunate to see them further enshrined in law. Calling for the protection of these documents, the nature of which will vary extensively from department to department, may lead to overzealous identification of ‘work secrets’, harming both the public’s right to know and exposing workers to increased risk.

The final version of the law does mention that separate rules addressing ‘work secrets’ will be provided, but these might themselves be internal documents issued by the departments involved. This is something to watch.

2/29/2024 UPDATE:
For clarity's sake, I want to add a few words in response to some comments I've received.

      • As mentioned above, work secrets (工作秘密) are not a new concept. The Civil Servants Law and Counter-espionage Law, for example, both mention the need to protect work secrets.
        • They are generally understood to include the non-classified information of a government organ that is not suitable for public release and may impact the normal performance of duties or internal management of the organ. (this is similar to the definition provided in article four of the draft version of the Secrets Law)
      • They were not previously mentioned in the Secrets Law or its implementation rules.
      • The Law does not equate work secrets and classified materials (state secrets). Quite the opposite, it distinguishes them. Work secrets are not state secrets- they are something beyond those that are still entitled to some protection but follow separate procedures.
      • Protection of work secrets  (internal rules on practices, personnel, and procedures) can be entirely legitimate and necessary.
        • Poorly defined categories of protected information, however, can easily lead to abuse and overprotection.
        • The protections involved here may include exemptions from disclosure, requirements for internal confidentiality, and even non-criminal liability for leaking by civil servants.
        • The final draft's partial definition of work secrets is broader than the normal understanding, and will hopefully be further clarified by future rules.

Clarified Investigation Powers: Article 52 now explicitly states that during both secrecy inspections and the investigation of cases of potentially leaked secrets the authorities may access materials, question personnel, make recordings, and preserve documents, equipment, and facilities. This was already the case under pre-existing implementation rules, but the incorporation into the actual law is worth noting..

Party Control: Party leadership and control of secrecy work is newly affirmed in articles 3 and 4. This is found in the initial chapter of the law where general principles and even rote recitation of party dogma is sometimes located, but the multiple mentions of the Party still stand out. The earlier provision allowing political party secrets to be considered state secrets is also retained in Article 13.

Ongoing Restrictions for Secret Keepers: Article 46 adds that persons formerly involved with state secrets must get permission when leaving China (including travel to Hong Kong, Macau, and Taiwan) during the period of their separation from state secrets. Such restrictions already existed in the law as applied to those who are currently in positions dealing with state secrets- allowing permission to be denied where state organs think there is a real risk of harm. The length of the separation period is not specified and may vary by case.

Whole of Society Approach: The revisions incorporate the ‘holistic view of national security’ (art 4) that has become the key policy in China’s security discussion and that critics consider the ‘securitization of everything’. It refers to both an expansive understanding of national security and the need to consider national security implications in all areas. In the new law, this can be seen in added requirements for general publicity and education on secrecy (art 9) despite most citizens never having any reason to interact with classified material.

Security surrounding military facilities: Mainly interesting because it is somewhat reminiscent of US rhetoric and action to stop Chinese citizens from owning land near military bases in America, the law calls for enhanced security surrounding military facilities more generally in article 40, and in construction of facilities at article 41.

Requiring more complete reclassification at the expiration of classification: Normally, if no action is taken, materials are to be automatically declassified at the end of the secrecy period. Article 24 has been revised to require that the period not be merely extended, but that the secrecy period, level, and scope of those with knowledge be newly determined if it is necessary to extend classification past the previous secrecy period.

Green = added from previous version, Red= removed in subsequent version, Blue= incidental rephrasing

*Derived from a more complete, Chinese-language chart by ever impressive NPCobserver.com

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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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