There have been calls for more clarity – including on what constitutes a state secret.
“Clarity on relevant terms … is essential for businesses to know where China’s red lines are – this should be a consideration when revising laws related to national security,” the European Union Chamber of Commerce in China said on Thursday.
He Zhiwei, a criminal lawyer in Beijing, also said there was not enough information on how a state secret was defined. “It might lead to the situation where a scenario is branded a ‘state secret’ by a random government entity, violating people’s rights,” he said.
Dr Matthieu Burnay, reader in global law at Queen Mary University of London, said the amendment would increase the risk of foreign firms having to face conflicting legal obligations in China and their home jurisdiction.
“It is a strong reminder that everyone, [be it] individuals or corporations, are responsible for upholding national security in China,” he said.
Burnay said the amendment restricting people from leaving China for a period after leaving jobs that “involved secrets” introduced a “very high level of uncertainty” because of vaguely defined terms such as “state secrets”, “national security” and “national interests”.
He said it would be up to those enforcing the law to determine how it would be applied. “In that process, national interests and national security will clearly take precedence over individual rights and corporate interests.”
He said corporate due diligence and other measures that aim to make global corporate activities more transparent were likely to conflict with the party-state’s tightened control over data and information flows.
The Ministry of State Security on Wednesday dismissed the concerns. It did not mention the revision, but said criticism of China’s anti-spying law was misguided.
In an article posted to its WeChat social media account, the ministry said that the anti-espionage law protected suspects’ human rights and it clearly set out the process for investigating state security cases.
“In the past three months since the new law took effect there has not been a single case of so-called arbitrary detention of foreigners, nor a single case of administrative review or administrative litigation targeting the national security offices,” the article said.
The draft revision is the first major update to the state secrets law since 2010 and only the second revision since its introduction in 1988.
The current law places restrictions on the employment of personnel who had access to state secrets, during a confidentiality period after they leave their position. Under the draft revision, they would also be banned from travelling overseas without approval as employees – something that currently applies to some staff under the current law – and during that confidentiality period after they leave the job. But the law does not clearly define who is regarded as an employee involved with state secrets.
There were some 7.16 million civil servants in China as of 2016, according to official news agency Xinhua. But the total number of people employed by the state – including state-owned enterprises, public institutions and agencies – is estimated at 31 million.
The revision also requires all levels of government – from county level up – to set aside funds in their annual budget for keeping information confidential.
The National Administration of State Secret Protection, an office under the State Council, and its branches at various levels have also been given fresh power to investigate cases related to state secrets.
They will have the power to check all files, question all personnel and confiscate devices and files deemed related to state secrets when looking into such cases or carrying out regular checks. Under the current law, its officers can only urge other law enforcement agencies to do this or coordinate with them.
The revised law also states that public education on keeping state secrets will be part of the national system, and calls for specialised education for cadres. The media is also encouraged to improve public awareness.
Regular checks of all tech products used to protect state secrets will also be required. And the revision stipulates government support for the research and application of key technologies in the field of information security.
The Chinese government considers the increasingly difficult task of protecting online data from attack as one of the greatest threats to confidentiality. In the past, one official solution to this issue had been quantum communication, which takes advantage of quantum physics to share data in a way that is thought to be unhackable and impossible to “eavesdrop” on, making it a powerful tool to protect sensitive data compared to the current methods.
China launched the first quantum communication satellites in 2016 and the first integrated network from Beijing to Shanghai in 2021. While China is developing core technologies to support national quantum communications, the technology still requires significant development.
As geopolitical tensions rise, President Xi Jinping earlier this year highlighted China’s “more complex” security concerns, urging officials to prepare for “worst-case and most extreme scenarios”.
State Security Minister Chen Yixin has also called for a crackdown on the theft of state secrets and for stricter national security measures, citing risks from a more unpredictable global environment. Chen’s ministry has made public multiple espionage cases this year, breaking its long tradition of working mostly in the shadows.
Additional reporting by Jack Lau, Victoria Bela and Luna Sun
Draft revision of the Law on Guarding State Secrets