Latest Amendments to China’s Law on Guarding State Secrets
Published 1 March 2024
Xia Yu
China’s Law on Guarding State Secrets (“Law”) was formulated for guarding information related to national security and interests by the Standing Committee of China’s National People’s Congress on 5 September 1988. It was revised once on 29 August 2010. The second revision of the Law passed on 27 February 2024 broadening the scope of its application by adding 11 new articles and modifying 33 articles to varying degrees. This article focuses on the latest developments in the Law.
The second amendment of the Law adds a third article to the general provisions, clarifying that the Communist Party of China leads the work of guarding state secrets, is responsible for the formulation, guidance, and implementation of strategies and major principles and policies regarding state secrets, and coordinates major events involving state secrets. This is an institutional setting with Chinese characteristics.
The scope of application of the second amendment of the Law has been further expanded. On the one hand, it expands the subjects of the obligation of guarding state secrets, and on the other hand, it broadens the scope of state secrets to work secrets, which refer to information that is not state secrets but would cause certain adverse effects if leaked. According to Article 5, the subjects with the obligation are all state organs and armed forces, political parties and people’s organizations, enterprises, institutions, and other social organizations and citizens; and according to Article 64, separate administration measures on guarding the work secrets will be formulated. It indicates that the second amendment of the Law not only requires the preservation of state secrets but also requires the preservation of work secrets.
The second amendment of the Law divides state secrets into three levels: top secret, classified, and secret; and further improves the classification and declassification system. In terms of the classification system, Article 15 clarifies that the scope of state secrets should be determined under the principles of necessity and reasonableness, scientific evaluation and evaluation, and timely adjustments according to changes in circumstances. Meanwhile, Articles 16 to 19 improve the system of the persons responsible for classification and the mechanism of classification authority and provide principles for marking secret points.
In terms of the declassification system, Article 24 changes the review of state secrets from regular review to annual review; and Article 58 stipulates that failure to perform declassification review responsibilities will result in serious consequences, the directly responsible supervisor and other personnel shall be punished.
The management system for online state secrets has been also improved. Article 33 stipulates that the production, reproduction, publication, and transmission of online information must comply with provisions on guarding state secrets. According to Article 34, network operators shall cooperate with relevant departments in investigating and handling cases suspected of leaking state secrets; promptly handle and report online information that is suspected of leaking state secrets, delete relevant information and conduct technical processing of relevant equipment as required.
Data has now become a fundamental strategic resource. Article 53 of China’s Data Security Law stipulates that the Law shall apply to data processing activities involving state secrets. Therefore, Article 36 was added to the second amendment of the Law to strengthen the connection with the Data Security Law. Following the provision of this article, data processing activities involving state secrets and their security supervision must comply with provisions on guarding state secrets; relevant authorities at all levels must guard against the risk of leaks caused by data aggregation and correlation; and organs and institutions should strengthen security management for data that is classified as state secrets after aggregation and correlation.
Article 46 is a new provision requiring secrets-related personnel to comply with the provisions on guarding state secrets after leaving their posts. According to this article, special management during the declassification period shall be implemented for the secrets-related personnel who are leaving their posts; during the declassification period, they must not violate regulations to find employment or leave the country, and must not leak state secrets in any way; and after the declassification period, they should continue to perform their confidentiality obligations on state secrets they know.
Guarding state secrets is inseparable from the management of secret carriers. Article 26 of the second amendment of the Law stipulates that the production, receipt, transmission, use, copying, preservation, maintenance, and destruction of state secret carriers must comply with provisions for protecting state secrets. In addition, Article 57 lists 12 of the most typical violations, including illegal acquisition, possession, storage, processing, transfer, and destruction of state secret carriers, as well as illegal copying, recording, storage, and leakage of state secrets. The second amendment of the Law requires that state secrets, whether in physical form or online, cannot be transmitted through channels without confidentiality measures. The violations will result in sanctions, confiscation of illegal gains, and even criminal liability.
In conclusion, the second amendment of the Law clarifies the leadership of the Communist Party and expands the scope of application. This is conducive to safeguarding national security and interests. However, improper implementation will be detrimental to international exchanges and cooperation. The second amendment of the Law will be implemented from 1 May 2024.