What China’s National Intelligence Law Says, And Why it Doesn’t Matter

by Jeremy Daum | 2024/02/22 3:48 PM

Since it took effect in June 2017, China’s National Intelligence Law has been the focus of intense international scrutiny. The obligation in article 7 for citizens and organizations to cooperate with intelligence work has been held up as proof that Chinese citizens and businesses are all potential espionage risks. Yet, in analyzing the law’s text, it is far from clear that it was ever intended to require active participation in information gathering or sharing.  More importantly, even an accurate understanding of the law isn’t very useful in addressing the threat of espionage and setting our own immigration policies.

The National Intelligence Law  

First, consider the text of the National Intelligence Law. Article seven says in part that “All organizations and citizens shall support, assist, and cooperate with national intelligence efforts in accordance with law, and shall protect national intelligence work secrets they are aware of.”  This obligation to cooperate appears in the law’s “General Provisions” chapter, where a statute’s legal basis, scope, purpose, and general principles are usually listed. This is often followed by broad statements on the general roles to be played by the various actors in China’s government and society in implementing the law; beginning with a designation of the responsible central government departments and working down through the hierarchies to the rights and duties of ordinary citizens, groups, or associations. These broad roles are often expanded upon, as needed, in later chapters, but the only other mention of this obligation to cooperate in the Intelligence law is in Article 14’s authorization for intelligence institutions to request assistance.

It is not uncommon for an obligation to cooperate with the authorities to be included in laws involving law enforcement or national security. Similar language can be found in the People’s Police Law (article 34 Chinese only), the Armed Police Law (article 39), The Counter-terrorism Law (article 9), the Biosecurity Law (article 13), and the Counterespionage Law (article 8).  That such a requirement to cooperate with police and state security also appears in the Intelligence Law is unsurprising and largely overlaps with longstanding requirements.

Another sign that article 7’s obligation to cooperate wasn’t meant to break new ground is the lack of an enforcement mechanism. Some laws with similar obligations do explicitly provide penalties for failures to cooperate, showing that legislators can include them when desired. The Police Law mentioned above, for example, provides that either a refusal to assist or an obstruction of police work can result in penalties in certain listed situations. The Cybersecurity Law’s more limited duty of assistance for ‘network operators’ is backed up with specific fines and other consequences in that Law’s “Legal Responsibility” chapter where the penalties for violations are provided.

The obligation to cooperate isn’t mentioned at all in the Intelligence Law’s own ‘Legal Responsibility’ chapter. Instead, the Law authorizes penalties only when government intelligence efforts are “obstructed”.  This is because “obstructing” the lawful performance of duties by the staff of any state organ constitutes a crime under China’s Criminal Code article 277 where violence or threats are used or where serious consequences are caused, and can also result in lighter non-criminal penalties under the Public Security Administration Punishments Law. The distinction between a “refusal to assist” and “obstruction” was addressed in the context of the 2014 Counter-espionage Law when subsequent Implementation Rules clarified that a failure to provide assistance was only punishable if it amounted to intentional obstruction, or used violence or threats- following the existing laws.

The type of support or assistance envisioned in the Intelligence Law’s obligation to cooperate is also unclear. In fact, even “intelligence” is left undefined. The strongest indication of the focus of “intelligence work” is probably Article 11, which describes the “intelligence information” that should be collected by the authorities. It describes the information as (1) about conduct endangering national security or interests (2) that is carried out by, at the direction of, or in collusion with foreign groups,  and (3) collected for the purpose of stopping, preventing, or punishing that conduct. Although China defines its national interests and security needs extremely broadly, the focus here is clearly on information to guard against foreign threats rather than acquiring information to gain a competitive military or commercial advantage.

While short on definitions, the law does contain a few limitations on the expected cooperation. First, it must be done “in accordance with law” which means not only compliance with the Intelligence Law, but also other civil and criminal laws, such as restrictions on the collection of personal information, protection of trade secrets, and law enforcement collection of information outside of an active criminal investigation. Article 8 adds that all intelligence work must also “preserve the lawful rights and interests of individuals and organizations”, including the rights of both those who are asked to cooperate and those from who information is sought. In contrast to the absence of enforcement mechanisms for failures to cooperate under article 7, the Intelligence Law does contain penalties for government authorities’ abuses of powers or violations of individuals’ rights and requires that convenient channels be provided for reporting such misconduct.

Take away and the Road Ahead.

Nothing in the discussion above should suggest that the Chinese government isn’t actively conducting espionage, or that it can’t coerce its citizens to share information they acquire. Covert espionage and spying don’t seem to be the focus of the law, and it’s probably a mistake to expect such activity to be covered in any public statutes. Some have tried to frame the Intelligence Law as the “offense” counterpart to the Counterespionage Law’s “defense”, but that doesn’t quite fit: the former concerns information related to potential security threats, the latter is a more detailed and operational law addressing certain more specific threats.

Ultimately, no matter what the laws say, it would be difficult for any Chinese citizen or company to meaningfully resist a direct request from security forces or law enforcement, and the courts cannot be relied on to provide a remedy. Government power is simply insufficiently constrained by law, particularly where state security concerns are invoked.

The question that needs to be asked, then, isn’t what the law says or whether the Chinese government can coerce its citizens to cooperate with espionage efforts. It can, with or without a law. Instead, in crafting a measured response, the focus should be on assessing the likelihood of this happening, and the potential harm that might result in a given situation. This should be further balanced against the harm that might be caused to our own interests from restricting access to US schools and markets.

Today, under US Presidential Proclamation 10043, U.S. Immigration authorities can deny and revoke visas for graduate study to Chinese nationals who have previously studied or worked at schools or other entities found to support China’s “military-civil fusion strategy” – even absent any further indication of risk or basis for individualized suspicion of the applicant. In Canada, recent case precedent allows even greater discretion, with the court showing deference to immigration authorities’ denial of a visa on espionage grounds based on the suspicion that a student might later be coopted or coerced into sharing their learning with the Chinese government- even if the only information they collect is that openly learned through their studies and research and despite their having no intention of later collaborating with the government.

The scope of such rules is clearly overbroad, with officials acknowledging that “Ninety-nine point nine percent of those [Chinese] students are here legitimately and doing great research and helping the global economy. “ The costs of rejecting Chinese students are also enormous, only beginning with lost tuition, and encompassing the lost value of researched patents, and the benefit from the many highly-skilled Chinese workers who remain abroad after their education. These impacts may be amplified by a chilling effect causing the number of applications to drop due to fears of visa challenges, and schools overcorrecting as they try and comply with unclear immigration rules.

For years China has struggled to stop the “brain drain” from its overseas-educated citizens staying abroad. It would be painfully ironic for our own outsized security concerns to be what finally stops that flow of talent from which we benefited for so long.

 

 

The better (and harder) approach is to require a clearly articulated and individualized risk assessment. It is impossible to know everything about a visa applicant, but the denial of a visa (and a school’s chosen student) should be based on more than their having an undergraduate degree at a school with known defense ties and the risk that their planned graduate study would involve “access to real labs, meeting others in his field of research, etc.” as was the found in a recent Canadian case.

In assessing the likelihood that a student will become entangled in government espionage work, yes, we should consider their own background, past and current associations, field of study, intention to return to China, etc. If they studied at a sensitive university, at what level and how long ago? Is there current research connected to their time there? Do they have government or party connections?

In considering the potential harm, we can look to the nature and volume of information that they would have access to. Are they expected to have access to protected materials? Is their research of direct military application? If the only concern relates to their accessing intellectual property, are the owners of that IP comfortable with the access? To what extent will the protected information be the product of the students’ own efforts?

If the concern is tech companies sharing their access to large volumes of information, the questions are different, but the focuses on likelihood, potential harm, and lost benefit remain the same. What information is collected and how might it be used? What measures or assurances are in place to protect the collected information. Is the information collected substantially dissimilar to information available through other channels such as data brokers? Are the subjects of the collected information comfortable with the risk of exposure?

Those who work in immigration and security are obviously in the best position to assess the threat level in each situation. These questions represent only half-formed thoughts on factors that could offer more precision than focusing simply on a handful of sensitive schools and Chinese citizenship – or a slapdash interpretation of Chinese Law.

 

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