Review: China’s upcoming ‘Anti-Espionage law amendment’
On April 26, 2023, the Chinese Communist Party (CCP) passed the latest amendment to the anti-espionage law (反间谍法), taking effect 1 July, 2023. The original anti-spy law was passed on November 1st, 2014, and comprised 40 articles. The new anti-spy law has added a further 31 articles. The newly added articles have expanded the scope of espionage activities to near unprecedented levels. This report investigates China’s new legislation on the backdrop of its already strong tradition of arrests under espionage allegations. With a history of such arrests already present, this report asks what is likely to change.
According to the new legislations, the new anti-spy law will apply to":
“Espionage organisations and their agents engaging in espionage activities against a third country within the territory of the People’s Republic of China, or using Chinese citizens, organisations, or other conditions, which endanger the national security of the People’s Republic of China.”
Although the Chinese government hasn’t given a clear definition of the ‘espionage activities’, such activities, according to Chinese state media, include “other documents, data, materials and items related to national security and national interests, or to instigate, lure, coerce or bribe state staff”. In other words, academics and business travellers in China are likely to violate the anti-spy law if they quote, collect, or publish any information that is deemed as violating national security. For instance, all activities related to all investigation activity and data gathering in China — printed, electronic, or oral — can be effectively outlawed as “espionage.” The new anti-spy law also authorises the Chinese government to deport, arrest, or retrieve personal information from foreigners if they are suspected of espionage activities.
Although the new anti-spy law will not take effect until 1 July, China has been arresting foreigners over the past few years before the passage of the new anti-spy law. Indeed, since XI Jinping took power in 2012, the CCP has passed a series of laws that limit the freedom of speech within the Chinese territory. For instance, the Hong Kong SAR government passed the Hong Kong National Security Law in June 2020, which also applies to non-permanent residents and foreigners. The latest victim of the national security law was Lau Ka-yee, a National Taiwan University student who was arrested in Hong Kong on 3 June for commemorating the Tiananmen Square Massacre in Victoria Park. This report now outlines some notable figures who were arrested in recent years, including their nationalities and occupations. In the final section, this report offers a brief analysis of the impacts of the new anti-spy law on foreign nationals in China.
December 2018: the ‘Two Michaels’ Case (Canadian, Diplomat, Entrepreneur)
On 10 December, 2018, Michael Spavor and Michael Korvig, two Canadian diplomats, were arrested by the Chinese government under suspicions of espionage activities. At the time of their arrest, Michael Spavor was a diplomat working with an NGO in Beijing. Michael Korvig, an entrepreneur who founded a company that organises cultural exchange activities with North Korea, was arrested by agents from the Chinese Security Bureau near the border. It was believed that the arrest was China’s response to the detainment of Meng Wanzhou(孟晚舟), the Chief Financial Officer of Huawei. Almost two years after the detainment, the Chinese government formally charged the two Michaels In June 2020 with espionage on state secrets. Justin Trudeau expressed his disappointment over the verdicts and claimed that his government is ‘using a wide range of public and private pressures to ensure that everything is being done to get these Michaels home.’ On September 24, 2021, Trudeau announced that the Chinese government has released the two Michaels, shortly after the Supreme Court of British Columbia ended its proceedings against Meng Wanzhou. Although the Chinese government claimed that it released the two Michaels due to their deteriorating health conditions, foreign policy experts believed that the timing of the two Michaels and Meng Wanzhou suggested otherwise.
March 2023: Employees from the Mintz Group (Chinese, Due DIligence Researchers)
On March 20, the Chinese government raided the Beijing branch of Mintz Group, a United States corporate due diligence firm, and arrested five of its Chinese employees. The Mintz Group stated that it didn’t receive any notification from the Chinese government and it will cooperate with the authorities to work through any misunderstandings. In an interview with Politico, Peter Humphrey, a due diligence investigator who used to work in China, believed that Xi Jinping has made it nearly impossible for due diligence companies to conduct investigations in China. In August 2013, Peter and his American wife were arrested by the Chinese government when he was conducting an internal investigation on Mark Reilly, the GSK director in China. As a result, they were detained over false accusations of espionage activities. Peter and his wife were released from prison in 2015 over health issues. When asked about his opinion on the new anti-spy law, Peter Humphrey believed that it will become extremely difficult for the due diligence researchers to conduct any investigations in China. Most of their job responsibilities, namely collecting documents, conducting internal investigations, and retrieving data, will be viewed as espionage by the Chinese government after 1 July. Peter is worried that all of the normal business activities will be affected by the new anti-spy law.
February 2021: Dong Yuyu (Chinese, Journalist)
In February 2021, Dong Yuyu, a journalist from the state-sponsored Guangming Daily (光明日报) was arrested by the when he was having lunch with a Japanese diplomat in the hotel. He was later indicted for espionage in March 2023, and his family members turned to the international human rights organisations for further assistance. If Dong is tried for the new anti-spy law, he could face a maximum prison term of 10 years. A well-known figure who maintains close connections with politicians and journalists around the world, over 60 journalists and diplomats signed a petition demanding the immediate release of Dong. Although the Chinese government didn’t provide any information on the reasons behind his arrest, an anonymous figure claimed that Dong was detained due to his close relationship with foreigners. In other words, the Chinese government feared that Dong’s close connection with journalists and diplomats around the world would endanger national security. Dong’s family claimed that he was forbidden from family visits and Chinese authorities forced him to recount the details of his visit to Japan more than a decade ago. His family argued that such trips were merely part of his daily routine as a journalist, and his connections to foreigners should not be used as evidence of espionage.
March 2023: An employee of Astella Pharma (Japanese, Senior Manager)
China detained a senior manager of Astella Pharma Inc, a Japan-based pharmacy firm, over espionage suspicions. The employee, according to Japanese media, spent 20 years in China and worked as a senior official of The Japanese Chamber Commerce and Industry in China. In a press conference, Foreign Ministry Spokesperson Mao Ning announced that the employee violated the espionage law and is waiting for the trial. When Mao was asked to provide more information of the crime committed by the employee, she insisted that the employee was aware of the crime he committed, and that China is ‘a country ‘under the rule of law’ and therefore that the Chinese government would investigate the case in accordance to the law and safety of foreigners involved. In April, staff members from the Embassy of Japan in China had a brief conversation with the detained employee, who reported no health issues. The Foreign Ministry didn’t receive any explanation or statement from China regarding the reason for detention.
April 2023: Fucha (Chinese, Editor)
In April, a rumour began to spread that Fucha, the chief editor of Taiwan’s publishing company Fūsa, was secretly arrested by the Shanghai State Security Bureau (上海市国家安全局). On May 17, Zhu Fenglian, the Spokesperson of the Taiwan Affairs Office (国台办), confirmed the arrest of Fucha during a press conference. Fucha, according to Zhu, was under investigation for "activities endangering national security.” Fucha, a Chinese national who immigrated to Taiwan in the 1990s, founded the Fūsa Publishing Limited, and published a series of China-related books that criticised the CCP such as the Traditional Chinese version of Red Infiltration: The Reality of China's Global Media Expansion, a book which analysed the tactics used by China to expand its soft power. Given the new anti-spy law’s expansive scope of espionage activities, all of Fucha’s previous publications could serve as evidence of espionage if Fucha is tried under the new law. Taiwan’s Mainland Affairs Council (陸委會) believed that Fucha’s arrest was another example of China’s "long-arm jurisdiction" but refused to provide further details, as requested by Fucha’s family members. Indeed, Fucha’s case is similar to the missing booksellers in Hong Kong in 2016, who were arrested when they entered Mainland China. Lam Wing-kee, one of the missing booksellers who escaped from Hong Kong and founded his own bookstore in Taiwan in 2016, believed that Fucha’s arrest was a warning to the publishers in Taiwan.
The new anti-spy law and its implications for foreign nationals in China
If China has been arresting foreign nationals over the last couple of years, then what is so concerning about the new anti-spy law? The above examples showed that the Chinese government arrested its own citizens and foreigners across a variety of industries and occupations. While these cases seem unrelated, one of the common characteristics of these events is the lack of transparency. The Chinese government arrested these foreigners without specific reasons and it is often reluctant to provide further details when confronted by external pressures. The amendement of the anti-spy law, with its expansive and vague definition of espionage activities, will only amplify such concerns when it takes effect on 1 July. Ante Batovic from Crisis24 believed that the vague legislations will grant Chinese authorities unlimited power to arrest people from different countries and obstruct business operations. Judging from the new legislations, it is possible that most of the business activities, including networking with stakeholders, collecting data for companies, and conducting due diligence research, will violate the new anti-spy law. Although the American Chamber of Commerce in Shanghai has urged the Chinese government to clarify the application of the new anti-spy law, China Foreign Minister Qin Gang didn’t provide further explanation but agreed that stabilising the bilateral relations is the top priority. As China is confronted by a stalling post-pandemic recovery against the backdrop of the deteriorating US-China relations, it is likely that the CCP will leverage the massive scope of the new anti-spy law to tighten its control over national security and foreign business operations in China.