What information can companies, researchers and journalists in China collect without being accused of espionage?
China recently has one revised anti-espionage law passed which stretches the definition of espionage even further. Espionage no longer refers only to state secrets, but also to all “documents, data, materials or objects pertaining to national security and interests.”
At the same time, China’s state security apparatus has begun combing through the information that consultancies in China pass on to foreign parties. So did the authorities recently raid at offices of consultancy firm Capvision. Employees were questioned at the American industry colleague Bain, and five local employees were arrested at the also American Mintz.
It led to allegations of espionage that are widely reported in the Chinese state media. The message is clear: contact with foreign persons and institutions is risky, because they can easily turn out to be spies.
Jeremy Daum, a specialist in Chinese law and affiliated with the Paul Tsai China Center at Yale University, has been involved with Chinese law for many years. He is writing a blog on which he translates and comments on Chinese legal texts.
How important is national security to China?
“The government is convinced that the national security concerns are real, not just hypothetical. They see active threats from inside and outside China. Don’t forget that they also define national security very broadly. Religious separatism and advocating for Taiwan’s independence are also included, for example. This law aims to address all of that. It has been made very clear that everything else is less important. A so-called holistic view of national security has now become part of Xi Jinping’s official teaching.”
Does the Communist Party of China feel so threatened?
“When you’re at the North Pole, every step leads south. I mean, if you’re in control, you can lose power with every step you take. After all, you are in a place where your power is already almost absolute. That applies to the party, and perhaps also to President Xi himself.”
Does the revised anti-espionage law now give China more room to arrest people?
“Look, you could always accuse someone of sharing state secrets on the most unlikely grounds. What matters is whether there is a will to prosecute someone, not the legal basis. National security considerations are playing an increasingly important role worldwide, including outside China. But China, as a state, operates on the basis of control. The state has therefore already had enough resources to deal with such things for a long time. With more national security concerns in the US, and with slightly more reason in Europe as there is a war going on there, it only makes sense that China would now start deploying its resources as well.
Those means are quite brutal, and in my view, unfortunately, also run counter to much of the legislative work that China has been doing. In general, it has tried to build a reliable legal system. The government has a strong interest in people being able to rely on courts to solve their cases in ordinary litigation. But when it comes to threats to the central government and party rule, they step outside and they are willing to bend whatever rules they have made.”
So what exactly is the scope of the law?
“If you apply this law to everything it covers, you should arrest every citizen. But that’s not what the law is for. To give full scope to people who are seen as experts to identify the threat. It’s not so much that the law plugs holes or makes things more difficult. It is very much a sign of the times. The overall mood has gotten worse.”
Did you see that coming?
“A law that has already shown how far China is willing to go for national security is the law on foreign NGOs [sinds 2016 moeten ngo’s zich registeren bij het ministerie voor Veiligheid]. That was a landslide. I was in China at the time, and we didn’t know if we were going to be covered by that law. We didn’t know which NGOs would struggle to be active in China, who would be able to register. Looking back years later, we see the damage the law has done. It turned out exactly as disastrous as we feared at the time.”
Teachers and students who go on trips abroad should first have an internal discussion about the safety risks
What does the anti-espionage law mean for China’s overall climate?
“The fear is that it will only get worse, and that people will become afraid of being associated with foreign interests, whether individuals or organisations. That there is always an atmosphere of suspicion around it. That has always been a bit like that, of course, but when does it become really problematic?
Read also I was shocked: a befriended Chinese journalist appears to have been arrested
What you are now seeing is that the paranoia that is essential if you are professionally engaged in counterintelligence is also spreading through the rest of society. There is also a chapter in the law that deals with safety precautions. It states that teachers and students who make trips abroad must first have an internal discussion about the safety risks.
Of course, if you’re a spy, you have to be vigilant. But outside that field of activity it is a bit absurd. If you also tell your average university student who is going on a trip to Europe about the risk that foreigners want state secrets from you, then things get very colorful. Now the whole of society is mobilized, the predictability of the law is sacrificed in the name of security. I see that as a great loss.”