Revised Law
On February 27th, the 14th National People’s Congress’s (NPC) Standing Committee passed a revised version of the Law on Protecting State Secrets during the 8th meeting. The new law will come into effect on May 1st and includes 12 new articles and a number of revisions made throughout the document. The 2024 version’s new and revised articles clarify and standardize various aspects of China’s classification and declassification systems. The articles also clarify and standardize the safeguards, measures, and management for the rights and interests of people who handle or resign from jobs or positions that involve ‘confidentiality,’ i.e., protecting state secrets, in handling intelligence. Furthermore, the law also clarified and solidified the Chinese Communist Party’s (CCP) control regarding the protection of state secrets, or ‘confidentiality’ in handling intelligence.
Notable Revisions
Work Secrets
The most significant revision to the law is the addition of Article 64 that includes a new category of secrets called ‘work secrets’ in addition to state secrets. ‘Work secrets’ are items created or obtained by individuals or units during their duties that are not classified as state secrets but could adversely affect China if leaked. The article also states that further measures regarding how to manage and safeguard ‘work secrets’ will be released separately in the future.
CCP’s Role in Protecting State Secrets
The law revises articles that clarify and expand the CCP’s role in preserving state secrets. The clarification stems mainly from Article 3, where it provides further clarification for people to uphold the Party’s leadership regarding protecting state secrets. The article also specifies that the central government will act as the “leading organization” in this regard. The Central Leading Group for Secrecy Work will take the lead in the country’s efforts to protect secrets. The Group will also conduct research, formulate, and guide the implementation of China’s secret work strategies, major directives, and policies. It will also be the coordinating agency on all major matters and important efforts related to state secrecy, as well as advancing the establishment of the national secrecy law.
Article Four also clarifies the CCP’s role in the management of state secrets by outlining the Party’s specific role. The CCP will have a role in the management of secrecy in accordance with the law, along with its role in active prevention and highlighting key points. The Party also equally emphasized technology and management, along with innovative development to enable the security of state secrets and facilitate the reasonable use of information resources. The article also emphasized that matters involving laws and administrative regulations that are to be disclosed will be disclosed according to the law.
Clarification and Standardization of Classification System
The law also contains revisions that clarify and standardize China’s classification system. One way the revisions accomplish this is to provide agencies at all levels of the Chinese government or party bureaucracy with clearer guidance regarding how to properly classify and declassify state secrets. For example, Article 17 of the revised law provides additional guidance regarding what entities at the central government, provincial, and municipal levels can classify their state secrets.
The central and provincial governments as well as agencies under them can classify state secrets as top secret, secret, and confidential. Municipal cities and their agencies can only classify state secrets as secret and confidential. The article also outlined how the agencies should handle special cases when it is not possible to determine the classification level according to the levels. The administrative agency responsible for handling intelligence at the provincial, autonomous region, or directly governed municipality level can provide classification authority to the entities. However, the state secrecy administrative department will provide guidance regarding the specific authority and scope of the agencies’ classification authority.
The article also outlines what entities at lower levels are supposed to do if they believe that they have state secrets that should belong at a higher level of classification authority. The entities that believe they hold classified information that belongs to a higher level of classification authority will first take the necessary protection measures to safeguard the information. They would then notify the agency at the next immediate level for the determination of classification. If there is no higher-level agency, the agencies will then request operations departments with the correct classification authority or classification administration departments to make the designation.
Another way the revised law clarifies the classification system is that it expands on the processes that businesses and public institutions engage in practices involving state secrets’ use. Article 41 includes revisions that specifically say they must have the corresponding capacity for “secrecy management” and to obey provisions. The article also expands on how companies and institutions are required to undergo review and approval to obtain the necessary permits if they are building military facilities that will handle military secrets.
Safeguards, Measures, and Management of People Handling Intelligence
There are several revisions related to enhancing the protections, measures, and management for individuals who are tasked with protecting or safeguarding state secrets. Article 43 expands on the qualifications of people who work with state secrets. Specifically, it says personnel in the roles should “undergo secrecy education and training” and have both the work capacity, secrecy knowledge, and skills necessary to succeed in the positions.
They would also have to sign a “secrecy pledge” (akin to Non-Disclosure Agreements), strictly abide by state secrecy laws and regulations, and take responsibility for protecting state secrets. The article also specifically outlines the protections individuals have under the new law for protecting or guarding state secrets. For example, the article says that these individuals will be compensated or provided corresponding benefits if their “lawful rights and interests are affected or restricted due to the need to maintain “secrecy.”
Article 46 also significantly expands on the management of individuals who leave posts that involve protecting state secrets. The article provides exact details regarding how agencies and units handle individuals involved with “secrecy work” who leave their jobs. They will conduct confidentiality education and reminders, reclaim state secret media, and implement classification separation management periods. It also specifies that the individuals cannot be employed by any company or leave China during the period and would be in violation if they did so.
They also stated that individuals “must not leak state secrets by any means” during the period or after the separation period ends, they will continue to obey state secrecy provisions and continue to “fulfill secrecy obligations.” The article also includes procedures regarding how to handle personnel who violate laws related to state secrecy during their separation periods or leave their positions. Agencies and units that discover individuals have violated laws related to protecting state secrets will “promptly report them to the secrets administration department at the same level. The department will then take the appropriate actions to address the situation according to the laws in conjunction with relevant departments.
Increased Emphasis on Network Security
The revised law also increased emphasis on network security by expanding current articles or including new ones in the law. For example, Article 29 includes revisions that state it is illegal for individuals to transmit state secrets via the Internet or other public information networks without using proper measures laid out in laws and standards. Article 31 is a new article that states that agencies and units will strengthen management of information equipment and systems involved in secrecy work, build facilities that will self-monitor for secrets, and promptly “discover and address latent security risks.”
The article then provides six rules involving conduct using information equipment and systems that organizations or individuals cannot show. The six rules range from failing to employ effective secrecy measures for information equipment and systems in accordance with state laws and standards and using non-cleared information systems or equipment to process, store, or transmit state secrets, to giving away, selling, throwing away, or repurposing information systems’ security programs or management programs without proper authorization.
Another article added to the revised law is Article 34, which outlines how Chinese network operators will respond to potential leaks of state secrets using their systems. The article states that the operators must increase and enhance the management of information published by users and to cooperate with investigations of suspected leaks. These investigations could be conducted by various agencies such as public security or state security agencies and secrecy administration departments.
The operators will also stop the transmission of state secrets, save important records, and report the incident to the appropriate authorities. They will also delete the information involved in the leak of state secrets if public security or state security agencies and secrecy administration departments request it be removed. The companies will also conduct the necessary technical scans and other processes to make sure the information is fully removed from the systems.
Analysis
The revised law to protect state secrets is likely a response to the government’s belief that there are loopholes surrounding the law that enable people to sidestep it to steal state secrets. For example, the new and revised articles about network security provided additional context regarding potential crimes involving information networks. Specifically, it explained how agencies and individuals could violate the law by expanding on Article 29 and adding Article 31 with its six examples of bad conduct.
Furthermore, Article 31 also explicitly states that agencies and units are required to strengthen the management of information equipment and systems involved in secrecy work. The Article also included a provision that specifies that the agencies and units will self-monitor for secrets and look for and fix any security risks. Both the revisions made to Article 29 as well as Articles 31 and 34’s language and wording were absent from the 2010 version of the laws, indicating that the Chinese government saw this as a significant loophole that needed to be addressed.
Another area that received significant revisions to close loopholes is the area in the law that discussed the management, protections, and safeguards for personnel involved in secrecy work. Article 46 included the most significant revisions, with it explaining what individuals are leaving their posts that involve handling state secrets. For example, it provides detailed rules regarding what personnel can and cannot do during the time they are in their declassification period. One rule that is most significant is that they cannot work for any outside entity, leave the country during the period, or be in violation of the law.
The article also included various revisions that specifically state that individuals cannot divulge state secrets during the period before or after they leave their posts. Article 43 also expands and provides specific details regarding the various qualifications that personnel must have to handle state secrets. For example, the Article says that they must undergo training and education regarding the handling of state secrets and sign a “secrecy pledge” (Non-disclosure Agreement). The Article also provides protections to individuals engaged in state secrecy work, such as giving them compensation if their duties prevent them from exercising their rights.
The CCP significantly increased its power over every aspect of state secrets, including investigations, by closing perceived or real loopholes. The law accomplishes this by codifying the Party’s role in both preserving and managing state secrets through Article Three and Four. Article Three provides details regarding which entity is ultimately in charge of the protection of state secrets by saying the Party’s leadership will be upheld when protecting state secrets.
While the article said the Party’s leadership will be upheld, the central government, specifically the Central Leading Group for Secrecy Work, will take the lead in protecting secrets. Article Four also specified that the CCP will have a role in managing state secrets according to the law and in the active prevention of the leak of state secrets. The Article also highlighted the Party’s emphasis on using technology and management, as well as innovative development, to properly secure and facilitate the reasonable use of information.
Another example of the CCP’s control is the inclusion of ‘work secrets’ that cover sensitive information that does not fit the definition of state secret but can still cause the same amount of harm to any area as leaked state secrets. Furthermore, the vague definition also enables the Chinese government to label any information that could be perceived as detrimental to any aspect of China as ‘work secrets.’ These two aspects enable the Chinese government to also investigate and detain any organization or individual that ‘leaks’ or ‘has unauthorized use’ any information it defines as ‘work secrets.’
However, the increased CCP control over state and ‘work’ secrets will further erode investor confidence at a time when China wants to attract foreign investment. The control will also lead to more foreign businesses leaving China since they will perceive the risk of running afoul of either the Counterespionage or Guarding State Secrets Laws as not worth the risk of conducting business in China.
