National Intelligence Law

The National Intelligence Law of the People's Republic of China, 2017 (simplified Chinese: 国家情报法; traditional Chinese: 國家情報法; pinyin: Guójiā Qíngbào Fǎ) governs China's intelligence and security apparatus. It is the first law made public in China which is related to China's national intelligence agencies. The law however does not specifically name any of the organisations to which it applies such as the Ministry of State Security and Ministry of Public Security.[1] According to the law, "everyone is responsible for state security" which is in line with China's state security legal structure as a whole.[1] The final draft of the law on 16 May 2017 was toned down as compared to previous versions.[2] The National People's Congress passed the law on 27 June 2017.[3] The law was updated on 27 April 2018.[4]

National Intelligence Law
12th National People's Congress
CitationNational Intelligence Law
(in Chinese)
Territorial extent China (worldwide)
Enacted by28th meeting of the Standing Committee of the 12th National People's Congress
Enacted27 June 2017
Amended by
2018
Summary
A law to govern the intelligence apparatus in China
Status: In force

The passage of the National Intelligence Law is part of a larger effort by the Chinese central government to strengthen its security legislation. In 2014, China passed a law on counterespionage,[5] in 2015 a law on national security[6] and another on counter-terrorism,[7] in 2016 a law on cybersecurity[8] and foreign NGO Management,[9] among others.[2]

The Act has 6 chapters and 32 articles.[10] Article 7 of the law "creates the obligation of Chinese citizens to support national intelligence work."[11][10]

Article 7

Any organization or citizen shall support, assist and cooperate with the state intelligence work in accordance with the law, and keep the secrets of the national intelligence work known to the public.

Article 14

The state intelligence work organization shall carry out intelligence work according to law, and may require relevant organs, organizations and citizens to provide necessary support, assistance and cooperation.

Article 16

When the staff of the state intelligence work organization performs tasks according to law, in accordance with the relevant provisions of the State, after obtaining the corresponding documents, they may enter the relevant areas and places that restrict access, and may understand and ask relevant information to relevant organs, organizations and individuals. You can check or retrieve relevant files, materials and articles.

Article 18

Article 18 The state intelligence work agency may, in accordance with the needs of the work and in accordance with the relevant provisions of the State, request the Customs, the border entry and exit inspection agencies to provide exemption from inspection and other facilities.

Reaction

Experts argue that the law forces Chinese companies such as Huawei to hand over data to Chinese government regardless of which country that data came from.[12] An article published by the Australian Strategic Policy Institute writes that numerous laws in China, including the National Intelligence Law, outline that for "Chinese citizens and companies alike, participation in 'intelligence work' is a legal responsibility and obligation, regardless of geographic boundaries".[13] Chinese critics say that the West is creating unnecessary controversy over the law, controversy that is not based on facts.[14] To address concerns, Huawei, in May 2018, had submitted legal opinion by law firm Zhong Lun, which among other things stated that "Huawei’s subsidiaries and employees outside of China are not subject to the territorial jurisdiction of the National Intelligence Law".[15]

New York Times opinion writer Yi-Zheng Lian writes that under the law, spying is a duty for Chinese citizens and companies.[16] A report by Mannheimer Swartling, a Sweden-based law firm, concluded that "NIL applies to all Chinese citizens" and that "NIL applies globally to Chinese Groups [...] all subsidiaries, even those outside China [...]".[4]

References
  1. Canadian Security Intelligence Service (2018-05-10). "China's intelligence law and the country's future intelligence competitions". Government of Canada. Archived from the original on 2020-05-29. Retrieved 2020-07-03.
  2. Tanner, Murray Scot (2017-07-20). "Beijing's New National Intelligence Law: From Defense to Offense". Lawfare. Archived from the original on 2020-05-30. Retrieved 2020-07-03.
  3. "What you need to know about China's intelligence law that takes effect today". Quartz. 28 June 2020. Archived from the original on 11 June 2019. Retrieved 2020-07-03.
  4. Mannheimer Swartling (January 2019) Applicability of Chinese National Intelligence Law to Chinese and non-Chinese Entities. Retrieved on 5 July 2020. (This report is based on an objective reading of an English version of NIL.)
  5. Qing, Koh Gui (2014-11-01). Birsel, Robert (ed.). "China passes counter-espionage law". Reuters. Archived from the original on 2020-07-03. Retrieved 2020-07-03.
  6. Wong, Chun Han (2015-07-01). "China Adopts Sweeping National-Security Law". Wall Street Journal. ISSN 0099-9660. Archived from the original on 2020-03-28. Retrieved 2020-07-03.
  7. Blanchard, Ben (2015-12-28). "China passes controversial counter-terrorism law". Reuters. Archived from the original on 2020-04-24. Retrieved 2020-07-03.
  8. "China Adopts Cybersecurity Law Despite Foreign Opposition". Bloomberg. 7 November 2017. Archived from the original on 24 April 2020. Retrieved 2020-07-03.
  9. Wong, Edward (2016-04-28). "Clampdown in China Restricts 7,000 Foreign Organizations". The New York Times. ISSN 0362-4331. Archived from the original on 2020-06-04. Retrieved 2020-07-03.
  10. National Intelligence Law of the People's Republic of China Archived 2020-05-15 at the Wayback Machine ( 27 June 2017). Retrieved from Brown University on 3 July 2020.
  11. Girard, Bonnie (23 February 2019). "The Real Danger of China's National Intelligence Law". The Diplomat. Archived from the original on 18 May 2019. Retrieved 2020-07-03.
  12. Kharpal, Arjun (2019-03-05). "Huawei says it would never hand data to China's government. Experts say it wouldn't have a choice". CNBC. Archived from the original on 2019-05-29. Retrieved 2020-07-03.
  13. Hoffman, Samantha; Kania, Elsa (2018-09-12). "Huawei and the ambiguity of China's intelligence and counter-espionage laws". The Strategist. Archived from the original on 2020-07-03. Retrieved 2020-07-03.
  14. "U.S. shall stop accusing China's National Intelligence Law". news.cgtn.com. Archived from the original on 2020-07-03. Retrieved 2020-07-03.
  15. Yang, Yuan (5 March 2019). "Is Huawei compelled by Chinese law to help with espionage?". Financial Times. Beijing. Retrieved 2020-07-05.
  16. Lian, Yi-Zheng (2019-03-13). "Where Spying Is the Law". The New York Times. ISSN 0362-4331. Retrieved 2020-07-05.
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