PRC’s Secrecy Law Modification Raises Some Eyebrows

The modification of a 1988 law on state secrets, coming just about a year before the events that occurred a year later, made it an offence to release “state secrets”. Its modification in late April this year (April 29, 2010) added a provision about the spreading of secrets on the Internet.

Interestingly enough, your blogger noted a government poster in the Taipei Railway Station just a day before leaving Taiwan in late January 2010. The poster warned citizens that “the Web knows no boundaries” (網際網路無國界) and warned folks that secrets may be spread via the Web (慎防機密由此洩).

The PRC has made it clear, as Article 3 of the article states, that state secrets are to be protected by law, and that all governments, military organizations, political parties, civil organizations, public organizations, companies and citizens are liable under law to protect secrets.

第三条 国家秘密受法律保护。[...] 一切国家机关、武装力量、政党、社会团体、企业事业单位和公民都有保守国家秘密的义务。

There’s been a lot of guesswork as to what state secrets might be. While PRC law is notoriously vague on some aspects, Article 9 in Chapter 2 gives a hint. By law, anything that touches these aspects involving national security, which, if leaked, might have harmful consequences politically, economically, or when it comes to defence and diplomacy:

  • secrets in major government decisions;

  • secrets in national defence and military activities;
  • secrets involving diplomacy and diplomatic activities, as well as secrets so promised to foreign parties;
  • secrets in the national economy and social development;
  • secrets in the sciences and technology;
  • secrets in protecting national security and chasing after criminal offenders

as well as the elastic phrase: “secrets as so defined by the national secrets government organization”. With a fair bit of controversy, secret items that belong to political parties that fall into the criteria as stated above are also treated as state secrets.

There have been cases when orders not report a certain news item, once released, have become offences involving state secrets. Certain items, in particular involving those who hold ‘non-mainstream’ views, are also touching on that sensitive ‘state secrets’ nerve.

The controversial Article 28 places a burden on the Internet and, in particular, “operators and service providers” on the Web. (It’s uncertain if ISPs, ICPs, or both, will be hit.) Here it is in Chinese:

第二十八条: 互联网及其他公共信息网络运营商、服务商应当配合公安机关、国家安全机关、检察机关对泄密案件进行调查;发现利用互联网及其他公共信息网络发布的信息涉及泄露国家秘密的,应当立即停止传输,保存有关记录,向公安机关、国家安全机关或者保密行政管理部门报告;应当根据公安机关、国家安全机关或者保密行政管理部门的要求,删除涉及泄露国家秘密的信息。

It basically says that:

  • operators of the Web (and other “public information networks”) are to co-operate with the police and national security government organs, as well as the ‘procuratorates’, when it comes to cases involving state secrets;

  • transmissions involving state secrets on the Web shall immediately be stopped and records to be kept in order to report the case to the police, national security government organs, or the government organ responsible for state secrets;
  • such secrets (caught in transmission) shall be deleted when requested by the government.

Those interviewed by a Voice of America article have criticized the legal revisions and, indeed, question of the law, now amended, goes against the PRC’s own constitution. Still, on the other hand, the modified law, passed with 144 yeas, 3 nays and 3 abstains, is here, according to an official the PRC’s state secrets governing body, because of changes both domestically and internationally, in particular to problems arising due to increased IT development, as well as the uninterrupted development of the democratic and law-based systems.

The case of Shi Tao have served as precedents and those who know about the case are not optimistic about the law. In the case, Shi passed on sensitive information later regarded as a state secret and the PRC government had Yahoo! release particulars leading to Shi’s arrest, conviction and an eventual sentence (10 years for spreading state secrets). It’s therefore regarded as yet another case of the chilling effect on the Chinese Interwebs.

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