New Regulations Implementing State Secrets Law Offer No Greater Transparency

On March 1, the Regulations on the Implementation of the Law of the People’s Republic of China on Guarding State Secrets will go into effect.

When first announced on February 2, the Xinhua News Agency presented them as “an effort to boost government transparency.”  However, the regulations, read together with the People’s Republic of China’s Law on Guarding State Secrets (revised in 2010), reflect no changes to the vague, circular, and overbroad definition of what constitutes a state secret, and no loosening of the policy of information control at the heart of the state secrets system.

Instead, the revision of both the law and implementing regulations is undertaken specifically to address the rapid rise of the Internet and digital platforms in China: to expand the scope of state secrets protection to include all public information networks, e.g., the Internet, traditional media, and the full range of sectors (hardware, software, service providers, etc.) and create express responsibilities and liabilities for a comprehensive range of actors.

For more information about China’s state secrets framework and a full English translation of the new regulations, see below.

Background on China’s State Secrets Legal Framework

China’s State Secrets legal framework is made up of three main levels of laws, regulations, and rules.

• At the highest level, the Law of the People’s Republic of China on Guarding States Secrets (State Secrets Law) sets out the overarching legal framework for the state secrets system. The current State Secrets Law (revised in 2010) reflects the government’s ongoing policy to expand and tighten information control in the digital age.
   

• The next level of the States Secrets framework is the implementing regulations, previously the Measures for Implementing the Law on the Protection of State Secrets of the PRC (“1990 Measures”).  The implementing regulations were revised following the revision of the main law in 2010.
   
• The lowest level comprises specific policies and classifications developed by The National Administrative and Management Department for Guarding Secrets—formerly known as the National Administration for the Protection of State Secret (NAPSS)—along with other relevant central organs, including the mass organizations focused on specific areas of work, such as trade union work, women’s work, family planning, and the environment. The rules developed at this level implement both the Law and Regulations defined above. This is the level at which specific information is classified as “top secret,” “highly secret,” or “secret.” No corresponding set of rules at this level of the State Secrets framework has been publicly issued following the revisions of the State Secrets Law in 2010 and the Regulations in 2014.

There is currently no publicly available information on what categories of specific information are classified, or the process for classification of specific information categories by the relevant departments or organs. As with previous versions of the law and regulations, this total opacity continues to pose key risks to citizens. Basic principles of fairness at the very least require laws that clearly set out what constitutes prohibited conduct.

English translation of the 2014 Regulations on the Implementation of the Law of the People’s Republic of China on Guarding State Secrets.