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Legislative Authority

China's leadership was so impressed with the favorable international reaction that it received for its revisions of the Criminal Procedure Law in March 1996, that a corresponding set of revisions to the country's Criminal Law were enacted in March 1997. These included the long-awaited repeal of the historic counterrevolution statutes (Articles 90 to 104) and their replacement with systematic provisions for the punishment of "crimes endangering state security".

However, other particulars of the MSS' legislative authority remain ambiguous. The legislative aspects of the government continues to be shadowed by the elusive behavior of the PRC.

On 29 April 2010, the Standing Committee of the 11th National People's Congress of China (NPC) adopted the revised Law on Guarding State Secrets (State Secrets Law). The new Law will take effect on October 1, 2010. China's State Secrets Law was first adopted by the 7th NPC Standing Committee on September 5, 1988 (id.).

China classifies state secrets into three categories: “top secret,” “highly secret,” and “secret.” Under the new Law, if not otherwise regulated, the limit on the length of time that the “top secret” state secrets are protected is 30 years; that for the “highly secret” state secrets is 20 years; and that for the “secret” state secrets is 10 years (art. 15). A state secret will be automatically declassified when the time period for guarding it has expired (art. 19).

Detailed provisions regulating computer information systems are added into the new Law. For example, the new Law prohibits connecting any computers or storage devices dealing with secrets to the Internet or other public information networks (art. 24). Among those rules, the most discussed is the provision under article 28, which requires Internet and telecommunications operators and service providers to work with the relevant authorities on investigations, in detecting, reporting, and deleting information that discloses state secrets.

The new Law added a whole chapter to the existing five chapters, “Chapter IV, Supervision and Management,” which details the state secret-guarding authorities' power to promulgate secret-guarding rules and national standards and to supervise and investigate misconduct relating to the guarding of state secrets (arts. 41-47).

The National People's Congress passed amendments to the Counter-Espionage Law on 26 April 2023 that broaden the scope of material that can be used to back up allegations of spying. "Documents, data, materials, and items related to national security and the national interest," are now treated as state secrets under the law, state news agency Xinhua reported.

The raids come amid growing concern that the amended law will give state security police and other investigators new powers to access corporate facilities and electronic equipment. There’s also concern that normal business activities like gathering intelligence on local markets, competitors and partners could be treated as "espionage" amid growing tensions between Beijing, the United States and its allies.

The Chinese authorities have typically employed a highly elastic definition of what constitutes a state secret, and national security charges are frequently leveled at journalists, rights lawyers and activists, often based on material they posted online. The newly amended law gives no definition of what constitutes a matter of national security or the national interest, but expands the definition of espionage to cover cyberattacks against government departments or critical information infrastructure, Xinhua said.

Under the amendment, authorities may now access data and electronic equipment and issue travel bans to individuals. The risk of doing business in China is likely to keep on rising with the ongoing clampdown on the flow of information in China under supreme leader Xi Jinping. Consultancy firms and other companies gathering information in China could be deemed too sensitive to be allowed to operate there under the current regime.

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Page last modified: 30-04-2023 13:34:36 ZULU