4.29.2010

Law on guarding state secrets passed

The revised law on guarding state secrets has been passed today by the NPC, and will become effective on October 1, 2010. The law consists of six chapters and 53 articles.

The definition of state secret (art. 2) and the seven categories of state secrets specified by art. 9 have not substantially changed.

The law explicitly mentions that information which according to the law is public shall remain public (art. 4). According to PRC sources, this change and the introduction of more rational procedures to classify information as a state secret mean that the scope of state secrets "has been narrowed".

Instead, we could just be witnessing a rationalization of the legal regime on state secrets. In fact, some provisions that have been introduced in the law on guarding state secrets already existed in lower-level legislation.

Internet and telecommunication companies must block the transmission of state secrets and cooperate with police or state security organs investigations. (art. 28)

Telecom companies must also keep the records of transmission and hand them to police departments. This provision, which reflects existing practices, allows to derogate from the right to privacy and to tighten control of the internet. Violation of any of the obligations posed by art. 28 can be punished with sanctions determined by public security organs, state security organs or departments for information industry (art. 50)


--> The law strengthens the control on electronic information by:

1. prohibiting that computers and data storage devices containing state secrets be connected to any public network, and setting four more prohibitions related to PCs and data storage devices (art. 24)
2. prohibiting to transfer or send state secrets through the internet, other public networks or using non-secure computers (art. 26)
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-->Somewhat clearer specifications on the power to classify and declassify information and the maximum classification period have been introduced (art. 13, 15)
Central and provincial-level organs enjoy the power to classify information as confidental, secret or top secret. Organs in prefecture level cities and autonomous prefectures can classify information as secret or top secret. Detailed implementing rules on art. 13 may be issued in the future. Classification periods are of 30 years for top secret information; 20 years for secret information, 10 years for confidental information. In all those cases when setting a classification period is not possible, units can instead specify the conditions under which information can be declassified. The period of classification can be reduced, but also extended (art. 19).

Stricter obligations have been posed to units (danwei), understood as each and every state organ.

Units shall implement a responsibility system on guarding state secrets (art. 7). Those responsible for a unit's state secret work will be held responsible for any violation of the law on guarding state secrets (art. 29). The responsibility system has been experimented with in Jiangsu province and in Shanghai since 2005. Fines for those who violate the law on guarding state secrets have not been retained. However, the law allows to punish twelve different acts (art. 48), some of which (art. 48 (1), (2)) were already proscribed by 111 and 282 CL.


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