China’s Draft State Secrets Law and the Eye of the Beholder

April 28, 2010

This is probably the biggest China law story of the day. I haven’t read the draft law (give me a few days) yet, but I have been reading the press accounts, which as you can imagine have been quite interesting.

The reaction to this draft law is a perfect case study of how one’s point of view (or that of the organization for which you write) influences your framing of an issue. I’ll keep this relatively short and choose articles from three different media outlets: the Associated Press, the New York Times, and China Daily.

First up, the New York Times:

China is on the verge of requiring telecommunications and Internet companies to detect, stop and report leaks of state secrets by their customers, the latest in a string of moves designed to strengthen the government’s control over private communications.

Slight editorializing there, but not too bad. The rest of the article contains quite a lot of discussion about the government’s attempts at information control and the legal ramifications of the new rules, but it’s a rather straightforward discussion. I don’t agree with all of the statements made in the article, but that’s another issue.

How about China Daily? One would expect their point of view to be a bit more positive on the new law:

Telecom operators and Internet service providers must cooperate with public security and State security authorities on investigations of possible State secret leaks, according to a draft law. The law in effect further engages businesses in stabilizing national security, experts said.

Yes, slightly sympathetic to the government’s position, particularly with the “further engages businesses in stabilizing national security” bit.

Last up is the AP:

China is poised to strengthen a law to require telecommunications and Internet companies to inform on customers who discuss state secrets, potentially forcing businesses to collaborate with the country’s vast security apparatus that stifles political dissent.

The move, reported Tuesday by state media, comes as China continues tightening controls on communications services. It also follows a spat over censorship that prompted search giant Google Inc. last month to move its Chinese site to Hong Kong, which provides broader protection of civil liberties than mainland China.

Wow, a lot of loaded language there: “inform on customers,” “collaborate,” “vast security apparatus,” “stifle political dissent.” Sounds like a bad World War II movie, or the State of Arizona.

On the whole, the New York Times comes off as the best of the three with a basic news piece with no encroaching opinion. Kudos.

My first reaction to the new law is that it does not seem to give the government any power additional to what it already has. In legalese, one might say that it sets out de jure authority for areas in which the government already has de facto power.

ISPs and other telco operators already have some fairly strict obligations with respect to content control and are not in a position to turn down a government request for cooperation.

The draft rules appear to codify current practice (or perhaps overtly state currently informal obligations) and set forth some key definitions, including what a State secret is. Granted, the definition as stated in the draft rules is still extremely vague, so it still does not give us a clear picture of what a State secret is. However, it’s better than nothing, which is what we had before.

More on this later.