These officials can also commandeer the communications equipment, transportation, buildings, and other facilities of individuals as well as organizations and government organs (Article 17). Article 16 authorizes security officials to make inquiries ( xunwen 询问) of any individuals as part of their intelligence-gathering, and to examine their reference materials and files. In other articles, moreover, the law’s drafters chose language that does not limit these demands on individuals to Chinese citizens. Article Seven stipulates that “any organization or citizen shall support, assist, and cooperate with state intelligence work according to law.” Article 14, in turn, grants intelligence agencies authority to insist on this support: “state intelligence work organs, when legally carrying forth intelligence work, may demand that concerned organs, organizations, or citizens provide needed support, assistance, and cooperation.” Organizations and citizens must also protect the secrecy of “any state intelligence work secrets of which they are aware.” These clauses appear to limit the obligations on individuals to Chinese citizens, but they do not stipulate that only Chinese “organizations” are subject to these requirements. The Intelligence Law, by contrast, repeatedly obliges individuals, organizations, and institutions to assist Public Security and State Security officials in carrying out a wide array of “intelligence” work. Article Four requires all Chinese citizens to preserve, and not harm, national security, and obligates all public groups, enterprises, organizations, and other institutions to “prevent and stop espionage activities and maintain national security.” It is the Counterespionage Law which most closely parallels the new Intelligence Law in its structure and focus.Īs its name implies, the Counterespionage Law is far more defensive in orientation than the Intelligence Law. But while the new law does grant these powers, similar authorizations have already been granted in other legislation, most notably the Counterespionage Law (Articles 9-16) and the Cybersecurity Law. Initial press coverage of the Intelligence Law spotlighted concerns that it would grant intelligence officials the right to enter otherwise restricted facilities, examine private records, investigate and question personnel, and access or even requisition communications or transport equipment owned by companies or individuals. But the law’s broad language still imposes serious new security obligations, and the authors will probably get another opportunity to tighten these rules if detailed implementing regulations for the law are drawn up in the future. They include the laws on Counterespionage (2014), National Security (2015), Counterterrorism (2015), Cybersecurity (2016), and Foreign NGO Management (2016), as well as the Ninth Amendment to the PRC Criminal Law (2015), the Management Methods for Lawyers and Law Firms (both 2016), and the pending draft Encryption Law and draft Standardization Law.Ī comparison of the final version of the National Intelligence Law and the penultimate draft issued on May 16 indicates that its authors had to soften some of these requirements and make it less explicit about to whom they apply. These laws and regulations are aimed at strengthening the legal basis for China’s security activities and requiring Chinese and foreign citizens, enterprises, and organizations to cooperate with them. The new law is the latest in an interrelated package of national security, cyberspace, and law enforcement legislation drafted under Xi Jinping. Of special concern are signs that the Intelligence Law’s drafters are trying to shift the balance of these legal obligations from intelligence “defense” to “offense”-that is, by creating affirmative legal responsibilities for Chinese and, in some cases, foreign citizens, companies, or organizations operating in China to provide access, cooperation, or support for Beijing’s intelligence-gathering activities. and other foreign citizens doing business or studying in China, but in particular on their Chinese partners and co-workers. Like the more widely reported Cybersecurity Law (which went into effect on June 1) and a raft of other recent statutes, the Intelligence Law places ill-defined and open-ended new security obligations and risks not only on U.S. China’s National Intelligence Law, enacted on June 27 with unusual speed and limited public discussion, is a uniquely troubling milestone in Beijing’s four-year-old campaign to toughen its security legislation.
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