China declares war on spies, significantly tightening control over foreign companies
The new Chinese law has caused considerable concern among US government departments.
American National Center for Counterintelligence and Security (NCSC) warned that China’s updated anti-espionage law, which came into force on July 1, is highly ambiguous and could pose a risk to global businesses.
On June 30, the NCSC published a new security bulletin from the Protecting Our Future series, which provides a brief overview of the intelligence threat from China, the consequences of this threat, as well as steps to eliminate it.
The first item under discussion is China’s recently revised anti-espionage law, as it “expands the definition of espionage from encompassing state secrets and intelligence to any document, data, material or item related to national security interests.”
Such uncertainty, according to the NCSC, means that “any documents, data, materials or items may be deemed to be relevant to the national security of the PRC due to ambiguities in the law” and lead to potential “legal risks or uncertainties for foreign companies.”
According to Jeremy Daum, founder of China Law Translate and senior fellow at the Paul Tsai Center for Chinese Studies at Yale University School of Law in Beijing, the updated law only summarizes changes to the definition of espionage, specifically highlighting “attempts to illegally obtain or transmit state secrets, intelligence or other data, materials or items related to national security or national interest that are carried out by or for foreign elements other than espionage organizations.”
Daum believes that the changes do not represent, as such, an expansion of powers: “The scope of espionage has already been described so broadly and vaguely that it is not entirely clear what the expansion implies.”
The expert is more concerned about the amendments that relate to “the desire to coordinate actions with the spy organization.” The expression, he says, is “disturbing, as it may justify punishment for casual interactions with foreigners.”
Another change adds a new definition of espionage as “Network attacks, intrusions, or disruptions targeting critical information infrastructure or organizations associated with secrets.” Daum argues that this amendment does not define new criminal acts, but does clarify obligations to report such conduct. And since those who commit acts of espionage can be detained for up to 15 days and deported from the country, followed by a ban on entry, this is worrisome.
Regardless of the actual implications of this law, it is clear that Chinese security law raises the need for a more thorough understanding and analysis of international law and its impact on global business and politics. For international businesses, this highlights the importance of transparency, open dialogue, and careful adherence to legal requirements when doing business in China.