24 July, 2015
The National People’s Congress Standing Committee issued the National Security Law of the People’s Republic of China (“NSL”) on July 1, 2015. The NSL came into effect on the same date. The former national security law was issued in 1993 and its provisions were mainly limited to counter-espionage.
In April 2014, to respond to the various challenges in the new era, President Xi Jinping for the first time raised the “overall concept of national security”. Thereafter, a series of legislation relating to national security was put on an accelerated track, including NSL, the Counter-terrorism Law (which is still under deliberation with no further public updates), the Foreign Non-governmental Organization Administration Law (which is still under deliberation with no further public updates) and the Counter-espionage Law (issued on November 1, 2014 to replace the former national security law).
Unlike the former national security law, the newly issued NSL is not limited to counter-espionage and is a general law defining and safeguarding national security. Containing seven chapters and 84 articles, the NSL stipulates the tasks and duties of safeguarding national security, institutions of safeguarding national security, and the obligations and rights of citizens. NSL defines national security as "the national regime, sovereignty, unification and the integrity of territory, the welfare of people, the sustainable development of the economy and society, and other material interests of the state are in a relatively safe state and are not threatened by domestic and foreign threats" (Art. 2). NSL covers various types of national security, including political security, territorial security, military security, economic security, cultural security, social security, technology security, information security, ecological security, resource security, and nuclear security.
The provisions most relevant to the operation of companies in China, especially high-tech and telecommunications companies, relate to technology and information security. NSL provides that "the state shall build cyber and information security protection systems, enhance the capacity of protecting cyber and information security, strengthen innovative research and development and application of cyber and information technology to ensure that the Internet and core information technology, the key infrastructure facilities, and important areas of information system and data are secure and controllable , the key infrastructure facilities, and important areas of information system and data; strengthen network administration prevent, stop and punish cyber attacks, cyber invasion, cyber spying, dissemination of illegal and harmful information and other network-related unlawful and criminal activities in accordance with the laws, and safeguard the sovereignty, safety and development of national cyberspace." (Art. 25) In addition, the state shall establish national security review and supervision institutions and mechanisms, and conduct national security reviews of key technologies and information technological products and services that influence or are likely to influence national security. (Art. 59)
NSL provides wide-ranging obligations for individuals and organizations to safeguard national security, for example, complying with the relevant provisions relating to national security in the Constitution and relevant laws and regulations and timely reporting indications of activities endangering national security.
It is expected that NSL will serve as the legal foundation for implementing regulations with detailed legal requirements in various aspects of national security. We will continue to monitor the legislation and change of practice in this area.
Marissa (Xiao) Dong, Partner, Jun He
Clement (Kemeng) Cai, Jun He