Authorities can swoop over anything they deem relevant to national security in toughening of law already used against expatriates or Chinese contacts
By Helen Davidson in Taipei
April 27, 2023
Cheng Lei, an Australian journalist who is being held in China under espionage laws. Further amendments have widened to scope to investigate individuals, especially in regard to cyber security. Photograph: Ng Han Guan/AP
China has drastically broadened its anti-espionage laws in amendments that legal experts warn could further heighten risk to foreign individuals and organisations operating in the country.
The amendments were passed by Beijing’s rubber-stamp parliament on Wednesday afternoon. The long-foreshadowed changes broaden the law’s scope to encompass anything deemed by authorities to cover national security, and expand the search and seizure powers of authorities, as well as the implementation of entry and exit bans on individuals.
Wang Aili, director of the criminal law office of China’s legislative affairs committee, said the update, to take effect on 1 July, improved definitions of espionage and clarified responsibilities of enforcement agencies. The changes are the first to the law since its introduction in 2014, and also increase its focus on cybersecurity with provisions including bans on discussing China’s network vulnerabilities.
Observers have warned that the expanded law increases the risk faced by foreign individuals and entities working in China, particularly those in key technology, research and monitoring and other potentially sensitive sectors.
“The anticipated amendments to the espionage law add to the already breathtaking breadth of its provisions,” Jerome Cohen, a China law expert at New York University, said shortly before the amendments were formally passed.
Much of the concern has focused on a new provision expanding the law’s reach beyond the illegal handling of “state secrets” to cover any “documents, data, materials or items related to national security”.
It also expands search powers for state security staff to allow the examination of any items on a person whose identity is unclear or who is suspected of espionage activities, and the inspection of electronic equipment and facilities of “relevant individuals and organisations”.
Security agents may also “read or collect relevant documents, data, materials or items, and relevant individuals and organisations shall cooperate”.
Tensions are increasing as Beijing trades accusations of espionage and other grievances with the US and its allies. In February, American authorities shot down a Chinese spy balloon discovered flying in US airspace. Beijing has announced investigations into US chip companies, and Xi Jinping has shuffled key allies into national security positions.
Professor Margaret Lewis, an expert on Chinese law at Seton Hall University, said the expansion of the law demonstrated Beijing’s emphasis on its counter-espionage efforts.
“What the revisions will mean in practice, however, will only come into focus over time.
“Not only is the critical question of how Chinese authorities will use the broadened law unclear, but it is also doubtful that we will be able to obtain reliable data on its implementation. So much of China’s criminal justice system is opaque, and this is especially true when national security is invoked.”
Lewis said the changes were coming just as China reopens to foreign visitors after three years of zero-Covid border closures. “Potential visitors to China are justifiably asking, however, what is the political-legal system that they will be subject to once in China. These revisions will only amplify this wariness.”
On Thursday, US management consulting firm Bain & Company confirmed its Shanghai offices had been visited by Chinese police and five employees questioned. The company said it was cooperating with police but gave no further details. In March local Chinese employees of Mintz Group, a US corporate diligence firm based in China, were arrested.
Espionage and national security accusations have also been lodged against numerous foreign individuals in China, including two Canadians – whose government said they were being detained in retaliation for the arrest of a Chinese Huawei executive – and Australians Cheng Lei and Yang Hengjun.
A Japanese pharmaceutical executive, who reportedly dealt with Chinese officials and industry as part of his job, was detained in March for allegedly violating the espionage law. A subsequent editorial in Japanese paper the Asahi Shimbun said an estimated 17 Japanese in China had been detained under the law since 2014, and expats were “understandably afraid” that they could be arrested over acts they did not know were illegal. “The Japan headquarters of these companies are bound to be considering the risks of operating in China.”
This week the family of a prominent Chinese journalist revealed he had been charged with espionage offences, believed to be over his interactions with foreign diplomats and media in China, and his earlier periods of study in the US and Japan.
Jeremy Daum, a senior fellow at the Yale Law School Paul Tsai China center, said the amendments codified expansions that had largely been put into practice already, through other legal implements and rules as part of China’s “holistic view’” of national security risks.
“The foreign NGO law, which cast suspicion on and limited the activities of such organisations in China, is probably an example of the national security concerns taking the priority over other interests – and has greatly limited opportunities for many interpersonal exchanges.”