(Feb. 17, 2016) On December 27, 2015, the Standing Committee of China’s National People’s Congress (NPC) adopted the Anti-Terrorism Law of the People’s Republic of China, which took effect on January 1, 2016. (Zhonghua Renmin Gongheguo Fan Kongbu Zhuyi Fa [PRC Anti-Terrorism Law] (Dec. 27, 2015, effective Jan. 1, 2016), Central People’s Government website.)
Article 18 of the Anti-Terrorism Law addresses government access to encrypted communications for anti-terrorism purposes. The article requires telecommunications companies and Internet service providers “to provide technical interfaces, decryption, and other technical support and assistance” to public security organs (police) and state security organs when they are preventing or investigating terrorist activities in accordance with the law. Failure to comply with the provision will result in punishments for both the company and its responsible persons, according to article 84 of the Law; when the circumstances are serious, the punishment may be a fine of over RMB500,000 (about US$76,000), with no upper limit, on the company and detention of the responsible persons
Specifically, article 84 provides that:
- the relevant competent government department may impose a fine in the range of RMB200,000 (about US$30,000) to RMB500,000 on the business operator or service provider (“company”) and a fine of up to RMB100,000 on the persons directly in charge and other personnel who are directly liable (“responsible persons”); and
- when the circumstances of the failure to comply are serious, the competent department may impose a fine of over RMB500,000 on the company and a fine in the range of RMB100,000-500,000 on the responsible persons, and may request public security organs to detain such persons for five to fifteen days.
According to Li Shouwei, Deputy Director of the Criminal Law Division of the Legislative Affairs Commission under the NPC Standing Committee, the Commission gave special consideration to article 18 during the legislative process, when it listened to opinions from a wide range of parties, including the representatives of the relevant companies. The Commission concluded after its assessment of the article that its provisions would not hinder the normal business operations of the relevant companies nor would it “be used as a back door to infringe the companies’ intellectual property rights.” (Quanguo Renda Jiu Fan Kongbu Zhuyi Fa Cao’an he Fan Jiating Baoli Fa Caoan Deng Juxing Fabu Hui [NPC Press Conference on Draft Anti-Terrorism Law and Draft Anti-Domestic Violence Law], CHINA.COM.CN (Dec. 27, 2015).)