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China Sharpens Legal Weapons for Information Control

April 29, 2010

In a revision of the central pillar of China’s state secrets system – the Law on Guarding State Secrets1 (State Secrets Law) – the Chinese government has tightened its control of the flow of information in the digital age. Including provisions that simultaneously target Internet and other public information networking companies, and set out a broad definition of state secrets and vague enforcement measures, the revised State Secrets Law is in fact a statutory catch-up with the already well-established use of criminal prosecution to chill and control freedom of expression in China. The revised law, passed on April 29 by the Standing Committee of the National People’s Congress, China’s legislature, will take effect on October 1, 2010. (See HRIC translation.)

In the new law, the definition of state secrets – “… matters that concern state security and interests and, if leaked, would damage state security and interests in the areas of politics, economy, and national defense, among others, must be defined as state secrets” (…涉及国家安全和利益的事项,泄露后可能损害国家在政治、经济、国防、外交等领域的安全和利益的,应当确定为国家秘密) – remains as sweeping as the original law and still fails to comply with international human rights standards.

Sharon Hom, executive director of Human Rights in China (HRIC), said, “The revised law has now strengthened the powerful and all-encompassing net around information flow and put a bulls-eye on information communications technology (ICT) companies that operate in China.”

Critics have highlighted Article 28 in the new law, which focuses on Internet and telecommunications companies. Article 28 stipulates:

Internet and other public information networking operators and service providers must cooperate with public security, state security, and procuratorate organs in investigation of cases regarding leaking of secrets; when information involving leaking of state secrets is found to have been published through the Internet and other public information networks, transmission must stop immediately, relevant records must be kept, and reports must be made to public security organs, state security organs, or the departments for the administration and management of guarding state secrets; information involving leaking of state secrets must be deleted as required by public security organs, state security organs, or the departments for the administration and management of guarding state secrets.
[Translation by Human Rights in China.]

(第二十八条 互联网及其他公共信息网络运营商、服务商应当配合公安机关、国家安全机关、检察机关对泄密案件进行调查;发现利用互联网及其他公共信息网络发布 的信息涉及泄露国家秘密的,应当立即停止传输,保存有关记录,向公安机关、国家安全机关或者保密行政管理部门报告;应当根据公安机关、国家安全机关或者保 密行政管理部门的要求,删除涉及泄露国家秘密的信息。[The full Chinese text of the revised law can be found online at the NPC’s website.])

Legal scholar Fan Yafeng (范亚峰) told HRIC: “Article 28 of the State Secrets Law is a very serious step backwards. It is clearly an attack on Internet freedom. … It reflects the trend that rule of law is regressing.”

Liu Feiyue (刘飞跃), founder of the China-based website Civil Rights & Livelihood Watch (民生观察), said, “The provision on the Internet is a move by the authorities to crackdown on Internet freedom. Originally, the authorities’ provisions on state secrets were vague, and ad hoc. … I’m afraid this will provide better and more convenient excuses and tools for authorities to deal with dissidents.”

The State Secrets Law revision comes hot on the tail of a government notice issued on April 26, 2010, by the State-owned Assets Supervision and Administration Commission, instructing China’s state-owned enterprises to strengthen their protection of “commercial secrets.” The notice defines these secrets as “any business or technical information not known to the public [that] can bring economic benefits for the enterprises” (不为公众所知悉、能为中央企业带来经济利益、具有实用性并经中央企业采取保密措施的经营信息和技术信息) and specifies a staggering list of such information, ranging from strategic planning to financial information to mergers and acquisitions.

“As the business communities of 187 countries come to the Shanghai Expo, they need to carefully consider how much they are willing to risk – to the detriment of their customers, employees, shareholders, and other stakeholders – just to get a piece of the China action,” said Hom.

1. The law was promulgated in 1988, and took effect in 1989. ^