More NatSec

The latest ramping-up of NatSec laws reduces privacy rights and the right to silence. From HKFP…

Hong Kong has introduced a new offence requiring suspects in national security investigations to surrender their passwords – or face up to one year in jail.

…Under the new rules, police can require people under national security investigation to provide passwords or help decrypt their electronic devices. Failure to do so can be punished by up to one year behind bars and a HK$100,000 fine.

Providing a false or misleading statement can be punished by up to three years’ imprisonment and a fine of HK$500,000.

Police can also compel anyone believed to know of the password or the decryption method of a device under investigation to disclose such information. Similarly, those who own, possess, control, or have authorised access to a device, as well as current or former users, can be subject to such an order.

…The amendments also increased the maximum penalty for a “foreign agent” in Hong Kong who fails to disclose information sought by the authorities – from six months to one year in jail.

A foreign agent is defined as someone acting for a foreign government, political party, or certain international organisation in Hong Kong.

The BBC adds…

The new amendments also give customs officials the power to seize items that they deem to “have seditious intention”.

…While law enforcement officials in many parts of the world have the authority to demand access to electronic devices as part of criminal investigations, the NSL covers a sweeping range of vaguely defined offences from secession, subversion, terrorism and collusion with external forces.

From the Standard…

Prominent Hong Kong commentator Lau Siu-kai said the latest revisions to Article 43 implementation rules under the National Security Law allow flexible enforcement to tackle growing electronic threats. 

The amendments empower the Chief Executive and the Committee for Safeguarding National Security to respond swiftly. 

Lau highlighted increasing acts using electronic communications to harm national security, often involving foreign forces through fund transfers, false information, online incitement and financial disruption attempts. 

As physical actions become difficult locally, hostile elements are shifting to digital channels to undermine central and HKSAR authority. He views the changes as closing legal gaps and enhancing deterrence.

Lau noted the revisions draw from National Security Law implementation experience, including the 43-person subversion case and Jimmy Lai’s case, both tied to external forces, plus lessons from the Hong Kong Alliance case to fix enforcement weaknesses. 

He linked the timing to persistent Western support for anti-China figures and pressure on Hong Kong, not recent Middle East events.

Some examples of loopholes would be interesting.

From Reuters…

Urania Chiu, a law lecturer in the UK researching Hong Kong, said the new provisions interfered with fundamental liberties, including the privacy ​of communication and the ​right to a fair ⁠trial.

“The sweeping powers given to law enforcement officers without any need for judicial authorisation are grossly disproportionate to any legitimate aim the bylaw purports to achieve,” ​Chiu said.

So no right to silence where passwords are concerned in NatSec cases. This on top of: no jury; special courts with government-picked judges and a 99% conviction rate; possible limits on which lawyer you choose to defend you; and a (so far unused) provision for secret trials.

Some international legal, tech and other companies already require employees to use burner phones or cleaned/empty laptops when visiting Hong Kong. No doubt more will now.

From the government’s press release…

Safeguarding national security is a continuous endeavour with no end point.