Control over cyber space and information, particularly citizens’ data, has defined modern strategies of combating terrorism through technologies. Justifications provided for extensive surveillance legislation that may impinge civil liberties have been riveted on states’ responsibility to adopt counter-terrorism mechanisms. This has resulted in deeply problematic restraints on media freedom and free speech. One such piece of legislation with adverse implications for freedom of speech and association is the new anti-terror law passed by China on 29 December 2015 (“the anti-terror law”), which has been criticised as an afront to the rule of law and providing insufficient protection of citizens’ private information.
The anti-terror law attracted attention due to sharp comments by the United States. China categorically states that it has been enacted to investigate or prevent terrorist activities. Aside from the broad mandate of monitoring data and engaging in targeted surveillance to address issues like national security, public security and prevention of disorder, the anti-terror law serves to maintain the state’s cyber sovereignty by enabling the government free access to all data, including personal mails and communications.
The anti-terror law, in its most recent form, requires telecommunication companies and internet service providers (“ISPs”) to hand over encryption codes to the government. This has been termed as ‘government accessible back-doors’ through which the authorities will have access to all data in order to maintain national security and avert acts of terrorism. The anti-terror law also mandates the strengthening of firewalls and constant monitoring and reporting by the ISPs. As commentators have observed, this legislation has the potential to alienate the cyber space in China and may also have overreaching ramifications for the freedom of press. The internet, often seen as embodying free and unregulated access to information, is increasingly being limited by national boundaries due to a huge array of regulatory laws being introduced.
In a statement issued by International Service for Human Rights, it was observed that the anti-terror law suffers from definitional infirmities that would render it susceptible to abuse. In particular, it revolves around the vague notion of ‘subversion’ instead of tangible threats to the country. As reported in the official press agency of the People’s Republic of Chin, Xinhua:
‘The term “terrorism” is defined as any proposition or activity — that, by means of violence, sabotage or threat, generates social panic, undermines public security, infringes on personal and property rights, and menaces government organs and international organizations — with the aim to realize certain political and ideological purposes.’
Civil liberties and democratic values, which are already threatened in China through excessive political interference, may be further stifled through legislative manipulation. Absence of transparency in authorising surveillance has also been central to the objections raised. The anti-terror law is unclear on the structure of authorities which oversee surveillance, including the demand for, and retention of, information. Provisions like these cast shadows on possibilities of independent review and oversight.
In light of this and general concerns over surveillance provisions introduced by national governments, on 12 January 2016 United Nations Human Rights experts called for a comprehensive review of the UK’s Draft Investigatory Powers Bill. In their submission to the Joint Committee, they expressed concern that the proposed legislation, which empowers surveillance agencies to monitor suspects under surveillance, may have grave implications for freedom of speech. While the observations of the panel were limited to the UK, the remarks with respect to overly broad definitions, disproportionate measures authorising mass surveillance, and inadequate oversight and transparency in data retention have an extended relevance to China’s new anti-terror law. The statement issued by the Special Rapporteurs addresses issues of a ‘chilling effect’ on individual’s exercise of rights, bulk interception warrants, retention of communication data and removal of electronic protection that are pertinent to recent surveillance laws.
The remarks of the panel are relevant for targeted and mass surveillance legislation promoted across jurisdictions. Admittedly, there is an urgent need to discourage counter terror laws and measures that are overly restrictive of fundamental rights of free speech and expression. The Chinese anti-terror law, in spite of the final version appearing tamer than previous drafts, has only added to the repertoire of repressive laws to extinguish legitimate dissent. Undoubtedly there is an urgent need to attract the attention of able, neutral observers to condemn such moves against universal democratic values.