Today marked the first meeting of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (HKSAR), chaired by the HKSAR Chief Executive and established by the controversial law on ‘Safeguarding National Security’ in Hong Kong passed by the National People’s Congress of the People’s Republic of China. During the meeting, the Hong Kong national security committee approved — without any prior public consultation — the Implementation Rules for Article 43 of the national security law governing new powers and measures that law enforcement authorities can apply in the HKSAR. These implementation rules grant authorities sweeping powers to criminalise online speech, block access to online content, seize electronic devices and records, intercept communications, and place enforcement requirements on internet service providers, including telecommunications firms and content platforms, directly impacting human rights.
Civil society, international organizations, journalists, technologists, and others around the world have all expressed extensive concerns about the process and contents of the PRC’s national security law for the HKSAR. Reportedly, several digital communications providers have in recent days paused cooperation on user data requests with HKSAR authorities, while expressing concerns around how the national security law impacts internationally protected human rights. In reviewing the law’s implications for businesses’ global responsibilities to respect human rights, companies have pledged to conduct formal human rights due diligence and to consult with human rights experts. All platforms operating in Hong Kong should review policies and practices protecting their users in the wake of this new decree.
While claiming to protect human rights and outwardly requiring the international legal standard of ‘necessity and proportionality’ to be followed, the implementation rules give wide discretionary powers to the executive and law enforcement authorities. Notably:
- The rules extend physical search and seizure powers to electronic devices, ostensibly requiring a warrant but also allowing for undefined “exceptional circumstance” where such intrusions can be authorised by an Assistant Commissioner of Police without judicial review.
- The Commissioner of Police and Secretary for Security can order the blocking of content or even restrict access to entire web platforms, under broad grounds, with no requirement of prior judicial approval or subsequent review of such measures.
- Applications for authorisation of interception of communications and covert surveillance only require the authorisation of the Chief Executive, rather than the globally regarded best standards of judicial review or other independent oversight.
- Additionally, the rules create a requirement to furnish information and produce materials under this framework, which create the danger that internet service providers and digital platforms could be forced to comply with government measures that do not respect human rights. Failure to comply with these powers have been made punishable with large fines as well as imprisonment for a year.
“The situation for human rights in Hong Kong in our digital age has been worsened, rather than improved, by the Implementation Rules for Article 43 issued by the newly constituted national security committee chaired by HKSAR Chief Executive Carrie Lam,” said Raman Jit Singh Chima, Asia Pacific Policy Director at Access Now.
“The HKSAR government could have ensured careful, independent control and oversight of police powers touching upon national security,” Chima added. “Instead, they have granted police and government authorities wide powers in Hong Kong to censor online speech, shut down platforms, seize electronic records, and order communications surveillance — absent safeguards required by international human rights law and disregarding the legal standards for which Hong Kong was otherwise known for.”
“History abounds with examples of governments granting sweeping power to one authority while reducing public oversight and transparency — a model that fails to strengthen national security yet increases threats to freedom of expression and other human rights,” said Peter Micek, General Counsel at Access Now.