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a report by mannheimer swartling june 2017 National Intelligence Law contacts Erica Wiking Häger Partner erica.wiking.hager@msa.se Lucas Jonsson Partner lucas.jonsson@msa.

1 a report by mannheimer swartling june 2017 National Intelligence Law contacts Erica Wiking Häger Partner Lucas Jonsson Partner Carolina Dackö Specialist Counsel mannheimerswartling.se General Introduction of the Draft National Intelligence Law The draft National Intelligence Law (the Draft ) (Chinese version is available in Appendix 1 and an unofficial English translation in Appendix 2) was released by the Chinese National People s Congress on 16 May 2017, soliciting public consultation before 14 June We outline below some general observations on the Draft. Background In recent years, China has sought to establish a comprehensive legal framework on national security, passing the National Security Law of the People s Republic of China in 2015 as well as laws on counterterrorism (the Anti-terrorism Law of the People s Republic of China passed in 2015); cyber security (the Cyber Security Law of the People s Republic of China passed in 2016); and other security-related areas. this report is distributed solely for informational purposes and should not be regarded as legal advice. the report may be quoted as long as the source is specified. The Draft is designed to form part of this legal regime. It is aimed at strengthening intelligence work; safeguarding national security; and protecting national interests from threats originating both inside and outside of China. It is expected that the Draft will be finalised and officially promulgated in 2017.

2 In general, the Draft is broad and vague, making it difficult to predict how the final law will be applied and enforced. The Draft only sets out some generic principles, calling on all Chinese people and organisations to collaborate and cooperate with national intelligence work. Key Features of the Draft National Intelligence Law national intelligence The Draft defines the purposes for which national intelligence information can be lawfully collected. These include the preservation of state power; sovereignty; unity; independence and territorial integrity; national prosperity; sustainable economic and social development; and other major national interests. This definition seems tremendously broad, and could be potentially all-encompassing. competent authorities The Ministry of State Security, Public Security authorities and Military Intelligence authorities, may carry out national intelligence work under the leadership of the Central State Security Leadership Bodies (the Competent Authorities ). However, it is peculiar that the Draft does not spell out the division of specific responsibilities and duties attributed to each Competent Authority. powers of the competent authorities The Competent Authorities are delegated, inter alia, the following major powers: a. collecting and processing relevant information about activities that jeopardise the national security and interests of China; b. establishing bonds of cooperation with relevant individuals and organisations, and entrusting them to perform relevant work; c. adopting technical measures for investigative purposes; d. entering into relevant controlled areas or places; e. requesting other authorities to facilitate the Competent Authorities work such as inspection exemptions; and f. enlisting required assistance as described below. required assistance In addition to the power delegated to the Competent Authorities, the Draft mandates that all Chinese citizens and organisations in China (including governmental authorities, armed forces, political parties, social organisations, state-owned enterprises, private companies, and public institutions) shall cooperate with the Competent Authorities when they are performing their duties by providing assistance, including: a. giving necessary assistance to the Competent Authorities to facilitate their work and keep the information accessible to it/him confidential; 2

3 b. responding to enquiries from the Competent Authorities in accordance with applicable laws; c. providing the Competent Authorities with relevant archives and documents in accordance with applicable laws; and d. giving priority to the Competent Authorities to use, seize, or furnish properties (including vehicles, communication tools, sites, and buildings) when they are performing duties, and returning the properties or paying/compensating relevant fees afterwards. It is worth highlighting that other governmental authorities and state-owned companies must cooperate with the Competent Authorities to arrange for persons in need of undercover placements. It is reasonably expected that an intelligence agent may work undercover as an employee of a state-owned company abroad when performing his/her duties. Those who obstruct the Competent Authorities in their national intelligence work or reveal any state secrets relating to national intelligence work may be subject to a warning from the Competent Authorities, administrative detention for up to 15 days and/or criminal charges in the most severe cases. Our Observations Prior to the Draft being issued, the Chinese authorities in practice have already enjoyed wide discretionary power in collecting intelligence and requiring assistance from individuals and organisations in China. The Draft reinforces the authorities powers by being written in as broad language as possible to be all-inclusive, which sends an important signal that Chinese authorities may take a more pro-active role in carrying out their intelligence work in the future. Despite its great ambitions, the Draft itself is not well-drafted, and lacks informative substance and detailed procedures, which may lead to high degree of uncertainty. For example, it repeatedly uses lawfully and in accordance with applicable laws without specifying who will determine what is lawful and which laws it is referring to. It remains to be seen how the Draft, after official promulgation, will be implemented in practice. That being said, the Draft is certainly broad enough to cover all types of organisations, including foreign companies in China who employ Chinese citizens. There is a risk that these companies Chinese employees could be forced to provide assistance to the Competent Authorities as noted above (e.g., providing confidential or even sensitive documents, handing over properties). This is a potential risk for all companies doing business in China regardless of whether they are domestic or foreign in nature. Outside China, Chinese companies, whether state-owned or private from national champions to acquired ex-foreign companies may face similar challenges from insider threats from Chinese nationals forced to facilitate state intelligence activities. We anticipate that a number of specific areas in the Draft will be addressed by more detailed laws and administrative rules issued by relevant authorities in the years to come in order to enhance the predictability, functioning, and enforceability of the Draft. Therefore, before assessing what practical impact the new law may bring about, it will be important to monitor ongoing legislative developments. The details of precisely how the Draft will be finalised and enforced will be important to all business players operating in, or connected to, China. Mannheimer Swartling Advokatbyrå AB is licensed as a foreign law firm in China. Our advice is provided on the basis of our experience of representing clients in the concerned geographic and business areas and on information obtained from PRC officials and publicly available sources. It does not constitute a formal legal opinion. In case you require either a formal legal opinion or an express interpretation of Chinese law we will arrange for the same through any of the corresponding Chinese law firms that we frequently cooperate with. 3

Appendix 1 国家情报法 ( 草案 ) 征求意见颁布机关 : 全国人民代表大会常务委员会法制工作委员会颁布时间 : 05/16/2017 效力状态 : 征求意见稿第十二届全国人大常委会第二十五次会议对中华人民共和国国家情报法 ( 草案 ) 进行了审议现将中华人民共和国国家情报法 ( 草案 ) 在中国人大网公布, 社会公众可以直接登录中国人大网 (www.npc.gov.

4 Appendix 1 国家情报法 ( 草案 ) 征求意见颁布机关 : 全国人民代表大会常务委员会法制工作委员会颁布时间 : 05/16/2017 效力状态 : 征求意见稿第十二届全国人大常委会第二十五次会议对中华人民共和国国家情报法 ( 草案 ) 进行了审议现将中华人民共和国国家情报法 ( 草案 ) 在中国人大网公布, 社会公众可以直接登录中国人大网 ( 提出意见, 也可以将意见寄送全国人大常委会法制工作委员会 ( 北京市西城区前门西大街 1 号, 邮编 : 信封上请注明国家情报法草案征求意见 ) 征求意见截止日期 :2017 年 6 月 4 日中华人民共和国国家情报法 ( 草案 ) 第一章总则第一条为了加强和保障国家情报工作, 维护国家安全和利益, 根据宪法, 制定本法第二条国家情报工作应当坚持总体国家安全观, 为国家重大决策提供情报参考, 为防范和化解危害国家安全的风险提供情报支持, 维护国家政权主权统一独立和领土完整人民福祉经济社会可持续发展和国家其他重大利益第三条国家建立健全集中统一分工协作科学高效的国家情报体制中央国家安全领导机构对国家情报工作实行统一领导, 制定国家情报工作方针政策, 规划国家情报工作整体发展, 建立健全国家情报工作协调机制, 统筹协调各领域国家情报工作, 研究决定国家情报工作中的重大事项中央军事委员会统一领导和组织军队情报工作第四条国家情报工作坚持公开工作与秘密工作相结合专门工作与群众路线相结合分工负责与协作配合相结合的原则第五条国家安全机关和公安机关情报机构军队情报机构 ( 以下统称国家情报工作机构 ) 按照职责分工, 相互配合, 做好情报工作开展情报行动各有关国家机关应当根据各自职能和任务分工, 与国家情报工作机构密切配合第六条一切国家机关武装力量政党社会团体企业事业组织和公民, 都应当支持协助和配合国家情报工作, 保守所知悉的国家情报工作秘密第七条国家情报工作应当依法进行, 尊重和保障人权, 维护公民和组织的合法权益第八条国家对支持协助国家情报工作的个人和组织给予保护, 对作出重大贡献的给予奖励第二章国家情报工作机构职权第九条国家情报工作机构根据工作需要, 依法使用必要的方式手段和渠道, 在境内外开展情报工作第十条国家情报工作机构应当依法搜集处理境外机构组织个人实施或者指使资助他人实施, 或者境内机构组织个人与境外机构组织个人相勾结实施的危害中华人民共和国国家安全利益的相关信息第十一条境外机构组织个人在中国境内实施的危害中华人民共和国国家安全利益的行为, 都必须受到法律追究国家情报工作机构应当为防范制止和惩治上述行为提供情报参考或依据 4

第十二条国家情报工作机构可以与有关个人和组织建立合作关系, 委托开展相关工作第十三条各级人民政府有关部门企业事业单位或者其他组织公民应当为国家情报工作机构依法开展工作提供必要协助, 并保守秘密第十四条国家情报工作机构根据工作需要, 按照国家有关规定, 经过严格的批准手续, 可以采取技术侦察措施第十五条国家情报工作机构工作人员依法执行任务时, 根据国家有关规定, 经过批准,

5 第十二条国家情报工作机构可以与有关个人和组织建立合作关系, 委托开展相关工作第十三条各级人民政府有关部门企业事业单位或者其他组织公民应当为国家情报工作机构依法开展工作提供必要协助, 并保守秘密第十四条国家情报工作机构根据工作需要, 按照国家有关规定, 经过严格的批准手续, 可以采取技术侦察措施第十五条国家情报工作机构工作人员依法执行任务时, 根据国家有关规定, 经过批准, 出示相应证件, 可以向有关机关团体企业事业组织和个人了解询问有关情况, 查阅或者调取有关的档案资料物品第十六条国家情报工作机构工作人员依法执行任务时, 根据国家有关规定, 经过批准, 出示相应证件, 可以进入限制进入的有关地区场所 ; 因执行紧急任务需要, 经出示相应证件, 可以享受通行便利国家情报工作机构工作人员根据工作需要, 按照国家有关规定, 可以优先使用或者依法征用机关团体企业事业组织和个人的交通工具通信工具场地和建筑物, 必要时, 可以设置相关工作场所和设备设施, 任务完成后应当及时归还或者恢复原状, 并依照规定支付相应费用 ; 造成损失的, 应当补偿第十七条国家情报工作机构根据工作需要, 按照国家有关规定, 可以提请海关出入境边防检查检验检疫等机关提供免检等便利第十八条国家情报工作机构及其工作人员在工作中, 应当严格依法办事, 不得超越职权滥用职权徇私舞弊, 不得侵犯公民和组织的合法权益, 不得泄露国家秘密商业秘密和个人隐私第二十二条对为国家情报工作作出贡献并需要安置的人员, 公安民政财政卫生教育人力资源和社会保障等有关部门以及国有企业事业单位应当协助国家情报工作机构妥善安置第二十三条国家情报工作机构应当建立监督和安全审查制度, 对其工作人员遵守纪律的情况进行监督, 并依法采取必要措施, 定期或者不定期进行安全审查第二十四条任何个人和组织对国家情报工作机构及其工作人员超越职权滥用职权徇私舞弊和其他违法行为, 有权向上级机关或者有关部门检举控告受理检举控告的有关机关或者部门应当及时查处, 并将查处结果告知检举人控告人对依法检举控告国家情报工作机构及其工作人员的个人和组织, 任何其他个人和组织不得压制和打击报复第四章法律责任第二十五条违反本法有关规定, 阻碍国家情报工作机构及其工作人员依法开展情报工作的, 由国家情报工作机构建议相关单位予以处分或者由国家安全机关公安机关处警告或者十五日以下行政拘留 ; 构成犯罪的, 依法追究刑事责任第二十六条泄露与国家情报工作有关的国家秘密的, 由国家情报工作机构建议相关单位予以处分或者由国家安全机关公安机关处十五日以下行政拘留 ; 构成犯罪的, 依法追究刑事责任第二十七条国家情报工作机构工作人员超越职权滥用职权徇私舞弊, 或者泄露国家秘密商业秘密和个人隐私的, 依法给予处分 ; 构成犯罪的, 依法追究刑事责任第五章附则第二十八条本法自公布之日起施行第三章国家情报工作保障第十九条国家加强国家情报工作机构建设, 对其机构设置人员编制经费资产实行特殊管理, 给予特殊保障国家建立适应情报工作需要的人员录用选调考核培训待遇退出等管理制度第二十条国家情报工作机构应当适应情报工作需要, 提高开展情报工作的能力第二十一条国家情报工作机构的工作人员因执行任务, 或者与国家情报工作机构建立合作关系的人员因协助国家情报工作, 其本人或者近亲属人身安全受到威胁时, 国家有关部门应当采取必要措施, 予以保护营救 5

National Intelligence Law of the People s Republic of China (Draft) chapter i: general provisions Article 1 The National Intelligence Law (the Law ) is formulated in accordance with the Constitution

6 National Intelligence Law of the People s Republic of China (Draft) chapter i: general provisions Article 1 The National Intelligence Law (the Law ) is formulated in accordance with the Constitution to strengthen and guarantee the State intelligence work, safeguard the national security and protect national interests. Article 2 The State intelligence work shall be in line with the overall concept of national security, provide reference intelligence information for the State to make major decisions, provide intelligence support to prevent and dispel risks that threat the national security, and uphold the country s regime, sovereignty, unity, independence and territorial integrity, well-being of the people, sustainable economic and social development, and other important interests of the State. Appendix 2 Comments Sought on the National Intelligence Law of the People s Republic of China (Draft) (Unofficial translation for reference only) promulgator: Standing Committee of the National People s Congress promulgation date: 16 May 2017 effectiveness: Draft for comments The National Intelligence Law of the People s Republic of China (Draft) has been deliberated at the 25th Session of the Standing Committee of the 12th National People s Congress, and was released on the website of the National People s Congress. The public is hereby invited to submit comments by directly logging into this website ( gov.cn), or provide comments in writing to the Legislative Affairs Commission of the Standing Committee of the National People s Congress (No. 1, Qianmen West Avenue, Xicheng District, Beijing, Postal Code: , with public comments on the National Intelligence Law of the People s Republic of China indicated on the envelope). The cut-off date for submitting comments is June 4, Article 3 The State establishes and improves a national intelligence mechanism that is centralized, unified, scientific and effective and requires division of responsibilities and collaboration. The central leadership organ of state security shall exercise leadership over the State intelligence work, formulate guidelines and policies for the State intelligence work, plan the overall development of the State intelligence work, set up and improve the coordination mechanism for the State intelligence work, make overall plans for and coordinate the State intelligence work in all fields, and make decisions on major matters regarding the State intelligence work after studies. The Central Military Commission shall exercise leadership over and organize the military intelligence work in a unified manner. Article 4 The State intelligence work shall be based on principles of combining the open work and secret work, integrating the specific affairs with the mass line, and adopting both division of responsibilities and collaboration. Article 5 Intelligence agencies under state security organs and public security organs, and military intelligence agencies (hereinafter referred to as the agencies for State intelligence work ) shall cooperate with each other according to the division of their responsibilities in order to do well in performing intelligence work and conducting intelligence operations. 6

All relevant national departments shall, depending on their own functions and responsibilities, work closely with the agencies for State intelligence work.

7 All relevant national departments shall, depending on their own functions and responsibilities, work closely with the agencies for State intelligence work. Article 6 All state organs, armed forces, political parties, social organizations, enterprises, public institutions and citizens shall provide support and assistance to and cooperate with the State intelligence work, and keep secret the State intelligence work that they know. Article 7 The State intelligence work shall be conducted according to the law, ensuring respect for and assurance of human rights and efforts to safeguard the legitimate rights and interests of citizens and organizations. Article 8 The State protects individuals and organizations that provide support and assistance to the State intelligence work, and rewards those who have made great contributions. chapter ii: functions and powers of agencies for state intelligence work Article 9 Agencies for State intelligence work may make use of necessary methods, approaches and channels according to the law to carry out intelligence work within and outside of China, depending on their operational needs. Article 10 Agencies for State intelligence work shall legally collect and process the relevant information about activities jeopardizing the national security and interests of the People s Republic of China that are conducted by any overseas agency, organization or individual itself, or by any other party under the instruction or assistance of such overseas agency, organization or individual, or by any domestic agency, organization or individual in collusion with an overseas agency, organization or individual. Article 11 Any overseas agency, organization or individual that conducts any activity within the territory of China to harm the national security and interests of the People s Republic of China must be subject to legal liability. Agencies for State intelligence work shall provide intelligence information as a reference or basis to prevent, curb and punish such activity. Article 12 Agencies for State intelligence work may build up bonds of cooperation with relevant individuals and organizations, and entrust them to perform relevant work. Article 13 Relevant departments of the people s governments at all levels, enterprises, public institutions or other organizations and citizens shall give necessary assistance to the agencies for State intelligence work for their operations and keep them secret. Article 14 Agencies for State intelligence work may, in light of their operational needs, adopt technical measures for investigation purpose after they have gone through strict approval procedures in accordance with relevant provisions of the State. 7

8 relevant operational sites with certain devices and facilities when necessary. However, they shall immediately return the above-said stuff or restore the sites to the original conditions after their missions have been completed, and pay relevant fees in accordance with provisions; and they shall make compensation in case of any damage caused. Article 17 In light of their operational needs, agencies for State intelligence work may request the customs departments, exit-entry frontier inspection check authorities, inspection and quarantine departments and other organs to facilitate their work such as inspection exemptions. Article 18 Agencies for State intelligence work as well as their functionaries shall act in strict accordance with the law during their work, and shall not overstep or misuse their authority, or play favoritism and commit irregularities, or infringe the legitimate rights and interests of any citizen or organization, or divulge the State secrets, business secrets or personal privacy. Article 15 While performing a task, functionaries of an agency for State intelligence work are allowed to inquire about relevant particulars from related organs, organizations, enterprises, public institutions and individuals, or to look up or access to relevant archives, documents and articles with permission and after showing corresponding credentials in accordance with applicable provisions of the State. Article 16 While performing a task, functionaries of an agency for State intelligence work are allowed to enter into relevant controlled areas or places with permission and after showing corresponding credentials in accordance with applicable provisions of the State; and they are entitled to ease of movement facilitation by presenting corresponding credentials, when it is truly necessary to do so for an urgent task. In light of their operational needs, functionaries of an agency for State intelligence work, may be given priority in use of or legally commandeer the vehicles, communication tools, venues and buildings of organs, organizations, enterprises, public institutions and individuals, and are allowed to equip chapter iii: guarantee for state intelligence work Article 19 The State steps up its efforts to build agencies for State intelligence work, exercises special administration of the organizational structure, functionaries, establishment, funds and assets, and provides special guarantee for them. The State establishes appropriate management systems for the employment, selection, assessment, training, welfare and withdrawal of functionaries that fit in with the needs of intelligence work. Article 20 Agencies for State intelligence work shall improve their own capability of performing intelligence work to meet the needs of the intelligence work. Article 21 For functionaries of an agency for State intelligence work and the persons who have established cooperative relationship with agencies for State intelligence work, relevant departments of the State shall take necessary measures to give protection or go to the rescue, should the personal safety of these functionaries and persons or of their close relatives be under threaten as a result of such functionaries performance of tasks or such personnel s assistance in State intelligence work. 8

Article 22 Public security, civil affairs, finance, health, education, human resources and social security, as well as other relevant departments and State-owned enterprise and undertaking work units

9 Article 22 Public security, civil affairs, finance, health, education, human resources and social security, as well as other relevant departments and State-owned enterprise and undertaking work units shall cooperate with national intelligence work bodies to properly arrange for persons in need of placement due to contributions to national intelligence work. Article 23 Agencies for State intelligence work shall establish oversight and safety review systems so as to exercise oversight over their functionaries observation of discipline, and take necessary measures according to the law to perform safety reviews on a regular or irregular basis. Article 24 In case of any practices of agencies for State intelligence work as well as their functionaries to overstep or misuse their authority, play favoritism and commit irregularities, or otherwise, any individual or organization has the right to inform or complain against such practices to organs of a higher level or related departments. Such organs or departments that accept the accusation or complaint shall initiate an investigation immediately and impose punishment accordingly, and notify the informant or the accuser of the investigation and punishment outcomes. Any other individual or organization shall not oppress or retaliate against the individual or organization that informs or complains against the agencies for State intelligence work as well as their functionaries according to the law. chapter iv: legal liability Article 25 Where anyone violates provisions herein by obstructing an agency for State intelligence work as well as its functionaries to work on intelligence according to the law, punishment will be imposed by relevant entity as suggested by the agency for State intelligence work or the state security organ or public security organ will give him a warning or impose an administrative detention of less than 15 days on him; where a crime is constituted, the criminal liability shall be pursued according to the law. Article 26 Where anyone gives away any state secret relating to the State intelligence work, punishment will be imposed by relevant entity as suggested by the agency for State intelligence work or the state security organ or public security organ will impose an administrative detention of less than 15 days on him; where a crime is constituted, the criminal liability shall be pursued according to the law. Article 27 Any functionary of an agency for State intelligence work oversteps or misuses his or her authority, plays favouritism and commits irregularities, or leaks any state secret, business secret or personal secret shall be punished according to the law; where a crime is constituted, the criminal liability shall be pursued according to the law. chapter v: supplementary provisions Article 28 The Law shall come into force as of the date of promulgation. 9

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