Written by: Bryce Hoyt
Historical and Legal Overview
On June 30, China passed a controversial national security law for Hong Kong that aims at giving more power to mainland China over the semi-independent city. The power to create such law is found within the mini constitution of Hong Kong called the Basic Law—which gives China back door control over the quasi-independent city.[1] The national security law follows a string of attempts in 2003 and 2019 by Hong Kong to create a national security law to which the immense pushback by citizens resulted in multiple failed attempts and dead resolutions.[2] China argues the law is necessary to uphold the sovereignty of the mainland, but many citizens of Hong Kong are worried that their independent freedoms are quickly being taken away—diminishing the “one country-two systems” model that China had promised before it regained control of the city from the United Kingdom in 1997.[3]
The law, which was not announced to the public until after it was passed, now makes it a crime to support Hong Kong independence and potentially makes vandalizing public property or government premises a terrorist activity.[4] The law also allows mainland China to operate in Hong Kong for the first time and trumps any and all conflicting local laws within Hong Kong.[5] The law is applicable to “any person” in Hong Kong and most of the crimes stated in the law are defined very broadly. Among the crimes listed, there are four new offences—secession (breaking away from the country), subversion (undermining the power or authority of the central government), terrorism (using violence or intimidation against people), and collusion with foreign powers.[6]
If a foreign national violates the law oversees, they may still be charged if they ever return to the city.[7] Beijing plans to establish a national security office in Hong Kong staffed by mainland officials who will oversee enforcement of the law. Hong Kong courts will oversee national security cases. However, Beijing has the power to take over the case and all decisions cannot be legally challenged.[8] If a case involves “state secrets or public order,” it will face a closed-door trial with no jury.[9] Any person found in violation of the law may be subject to a maximum sentence of life imprisonment.[10] Hong Kong is also mandated to carry out education on national security including new educational curriculum and social organizations with the purpose of informing the public of the importance of national security.[11]
How does this impact Privacy?
Under Article 9, enforcement of the new law allows police to employ covert online surveillance and wiretap those suspected of any crimes.[12] Being that the crimes are so broadly defined and contain such severe consequences, many Hong Kong residents fear that any information posted on social media sites (many of which are completely banned in mainland China) which reference Hong Kong independence or criticism of the government, may be used as evidence of subversion or secession.[13] This has led many people to begin scrubbing their social media accounts and deleting their online presence, much of which contains online records of political debate and criticism of mainland China. China has made it very clear that this law will be strictly and routinely enforced, having already arrested multiple people who protested the enactment of the law.[14]
The Tech Standoff
Many international tech companies, along with most Hong Kong residents, view this as a war of free speech and political and economic independence and fear that the online threat of China’s censorship is now being draped over Hong Kong.[15] Shortly after the law was announced, tech companies including Facebook, Google, Twitter, Zoom and LinkedIn have stated they would temporarily stop complying with requests for user data from the Hong Kong authorities—in violation of Article 43 of the new security law.[16] Hong Kong has responded by threatening jail time for company employees for noncompliance with the law.[17] In efforts to take control of protests in 2019, Hong Kong had requested help from Google in taking down online posts expressing support of independence and any leaked police information.[18] At the time, Google said no. However, the new law could now punish Google with fines, equipment seizures, and arrests if it declines such requests again.[19] TikTok, which is owned by the Chinese internet platform ByteDance but managed mostly outside of China, announced that it would withdraw from stores in Hong Kong and make the app inoperable to users in the city within the next few days.[20] According to an official from the Internet Society of Hong Kong, a non-profit dedicated to the open development of the internet within the city, there may be technical actions companies can take to guard against the law.[21] The law states that a request for data may be avoided if the technology required to comply is “not reasonably available,” which means companies may be able to add levels of encryption to the data or store the content in multiple locations to make the process of complying overly burdensome.[22]
Many other small businesses have either shut down or developed plans for moving out of Hong Kong, but for tech giants like Amazon and Google who have large data centers in Hong Kong, this is likely not a practical solution.[23] As the war for online freedom continues, the chilling effects to privacy and personal autonomy cannot be understated.
[1] Hong Kong: What is the Basic Law and how does it work?, BBC (Nov. 20, 2019), https://www.bbc.com/news/world-asia-china-49633862.
[2] See Jessie Yeung, China has passed a controversial national security law in Hong Kong. Here’s what you need to know, CNN (July 1, 2020), https://www.cnn.com/2020/06/25/asia/hong-kong-national-security-law-explainer-intl-hnk-scli/index.html.
[3] Id.
[4] See Grace Tsoi, Lam Cho Wai, Hong Kong security law: What is it and is it worrying?, BBC (June 30, 2020), https://www.bbc.com/news/world-asia-china-52765838.
[5] Yeung, supra note 2.
[6] Tsoi, supra note 4.
[7] Yeung, supra note 2.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] See Rita Liao, The tech industry comes to grips with Hong Kong’s national security law, TechCrunch (July 8, 2020), https://techcrunch.com/2020/07/08/hong-kong-national-security-law-impact-on-tech/, See also HK National Security Law -Bilingual, China Law Translate, https://www.chinalawtranslate.com/bilingual-hong-kong-national-security-law/.
[13] See Chris Buckley, Keith Bradsher, Tiffany May, New Secuirty Law Gives China Sweeping Powers Over Hong Kong, The New York Times (June 29, 2020), https://www.nytimes.com/2020/06/29/world/asia/china-hong-kong-security-law-rules.html. See also List of websites blocked in mainland China, Wikipedia, https://en.wikipedia.org/wiki/List_of_websites_blocked_in_mainland_China.
[14] Austin Ramzey, Elaine Yu, Tiffany May, Hong Kong Is Keeping Pro-Democracy Candidates Out of Its Election, The New York Times (July 29, 2020), https://www.nytimes.com/2020/07/29/world/asia/hong-kong-arrests-security-law.html.
[15] Paul Mozur, In Hong Kong, a Proxy Battle Over Internet Freedom Begins, The New York Times (July 7, 2020), https://www.nytimes.com/2020/07/07/business/hong-kong-security-law-tech.html.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Paul Mozur, Tik Tok to Withdraw From Hong Kong as Tech Giants Halt Data Requests, The New York Times (July 6, 2020), https://www.nytimes.com/2020/07/06/technology/tiktok-google-facebook-twitter-hong-kong.html.
[21] Mozur, supra note 15.
[22] Id.
[23] Id.