Does Counter-Espionage Law mean overstretch of national security? China’s Ministry of State Security joins the debate
Hello, it seems that topics related to national security are becoming more captivating in this era. It is well-known that both China and the U.S. are dedicating significant efforts in this field. Today's piece is a translation of the latest statement from China's Ministry of State Security regarding the country's Counter-Espionage Law.
The Legal Report program under Chinese state broadcaster CCTV aired a special piece named Lost Overseas [Video] on Sunday, covering a major espionage case handled by the state security organ of Sichuan Province on Jul. 23, 2021.
It is reported that a U.S. intelligence agency groomed a Chinese visiting scholar as a spy. The case uncovered the intelligence informer (surnamed Hou) planted by the U.S. in China's key national defense and military industry, eliminating potential dangers. Currently, the suspect Hou has been transferred to the Chengdu Intermediate People's Court for prosecution.
According to Article 55 of China’s newly revised Counter-Espionage Law
在境外受胁迫或者受诱骗参加间谍组织、敌对组织，从事危害中华人民共和国国家安全的活动，及时向中华人民共和国驻外机构如实说明情况，或者入境后直接或者通过所在单位及时向国家安全机关如实说明情况，并有悔改表现的，可以不予追究。
whoever joins an espionage or hostile organization abroad under duress or inducement to engage in activities compromising the national security of the People's Republic of China but honestly states the fact to a mission of the People's Republic of China abroad in a timely manner or, after his or her return from abroad, honestly states the fact directly or through his or her employer to a national security authority in a timely manner and shows repentance may be exempted from legal liability.
On Monday, the WeChat account of China’s Ministry of State Security posted a piece titled《反间谍法》的误读和正解（一）Misinterpretations and Facts of "Counter-Espionage Law" (I) ", with an opening saying:
"Since the revision of the "Counter-Espionage Law of the People's Republic of China" in April this year, there has been high attention both domestically and internationally. The vast majority of voices respect and support China's legitimate legislative activities, although there have been some misunderstandings, and even malicious accusation and smear. To clarify and correct these misinterpretations, it is essential to respond to some typical erroneous statements with facts and data, advancing a comprehensive understanding and correct interpretation of the newly revised "Counter-Espionage Law" among all sides. "
The MISCONCEPTION it lists in this piece is: The "Counter-Espionage Law" was enacted in 2014, and revised in 2023, indicating China's frequent legal amendments as an "overstretch of national security concept."
Then the article provides four fact-checks to explain why this is an misconception:
Fact One: The 2014 "Counter-Espionage Law" was renamed from the "State Security Law of the People's Republic of China" of 1993, marking this revision as the first substantial amendment in 30 years. The "State Security Law" of 1993 was China's first law stipulating the duties of national security agencies, especially in counter-espionage activities. In 2014, to adapt to the new national security circumstances and tasks, and to fully apply a holistic approach to national security, a comprehensive, overarching, and foundational national security law was needed. Thus, the "State Security Law" of 1993 was renamed as the "Counter-Espionage Law," with no major content adjustments.
Fact Two: The 2023 revision of the "Counter-Espionage Law" is a necessary enhancement to the original law. Over the past 30 years, there have been profound changes in both international and domestic security situations. Especially in recent times, espionage and intelligence-gathering activities targeting China have become severe and complicated, with a more complex range of actors, broader areas of operation, diversified targets, and more covert methods. The original "Counter-Espionage Law" faced clear challenges such as unclear definitions of espionage activities, inadequate preventive systems, imperfect enforcement measures, and mismatched legal liabilities. There was an urgent need to make necessary revisions to adapt to the changing situations, aiming to establish a more sound and reasonable Counter-espionage legal framework.
Fact Three: It is common for countries to make periodic modifications to their counter-espionage legislation. The United States, for example, has made over ten amendments to its espionage-related legal framework. As far back as 1917, the United States introduced the "Espionage Act of 1917" and proceeded to make numerous amendments in 1918, 1933, 1940, 1950, 1961, 1970, and more, continually expanding the scope of legal application and increasing legal responsibilities.
In 1938, the United States also enacted the "Foreign Agents Registration Act (FARA)" and made several revisions in 1966, 1995, and 2007 to enhance monitoring of foreign entities and foreign individuals within the United States. In 1996, the United States established the "Economic Espionage Act (EEA)," which contains two separate provisions –– "economic espionage" (benefiting a foreign government) and "theft of trade secrets" (more common commercial theft of trade secrets, regardless of who benefits). The "Economic Espionage Act" grants law enforcement agencies the authority to conduct investigations using various methods like surveillance and wiretapping. Since 2017, the United States has proposed amendments to the "Foreign Agents Registration Act" for three consecutive congressional sessions to counteract so-called "hidden foreign influence."
Fact Four: China strongly opposes the politicization, weaponization, and broadening of security issues in economic, trade, and technology matters. In recent years, the United States, under the pretext of the "rule of law" and the cloak of "national security," has imposed restrictions and pressure on normal economic and trade exchanges, academic interactions, research activities, and fabricated so-called "China Initiative cases."
In December 2021, an article in the MIT Technology Review pointed out that since 2018, the U.S. Department of Justice launched the China Initiative, and in 77 cases, nearly 90 percent of the defendants charged are of Chinese heritage. Over 70 percent of these cases did not involve economic espionage charges, and many cases remained unresolved or unprosecuted. The article noted that "the US crackdown on Chinese economic espionage is a mess," creating a "climate of fear" that results in "a brain drain from and distrust towards the United States".
Distorting the revision of the "Espionage Act" as a broadening of national security by China is a typical tactic of casting aspersions while turning a blind eye to one's own actions.
I don't know how many more pieces of this series will be released by China’s Ministry of State Security, but I'll keep an eye on it, and if you find it helpful, leave a comment and I'll consider whether or not to continue translating subsequent responses.