China’s New Counter-Terrorism Law

Obama would prefer to remain in the dark as ISIS and other jihadist groups use American-made technologies to plan and carry out their deadly attacks

China’s New Counter-Terrorism Law

China has just passed a new law requiring technology firms to provide “technical means of support” for the government’s counter-terrorism activities, including to help de-crypt information if the government demands them to do so. The firms are also enlisted in efforts to prevent the spread of incendiary materials that could incite acts of terrorism. Responding to a question regarding earlier criticisms of the law in some Western countries, Foreign Ministry Spokesperson Lu Kang replied: “I believe double standards have no place to play on this issue.” He added that the new law “is the answer to the latest situation and our objective needs.”

China is indeed facing its own terrorist threat from jihadists, principally from Uyghur separatists operating in the Xinjiang region of Western China. The Uyghur leader said back in 2009, using language similar to what ISIS uses today:

“We have to conquer our own country and purify it of all infidels. Then, we should conquer the infidels’ countries and spread Islam.”

Perhaps the last straw leading up to the passage of the new law was the slaughter of fifty people at a coal mine by Muslim militants in a single day last fall. This is one of the highest single day massacres by jihadist terrorists in any country during 2015. Hundreds have been killed by Islamic militants in the past several years. Add to China’s internal threat the report in November of the killing of a Chinese national by ISIS, and one can understand why China decided that it needed more effective law enforcement tools to combat the rising terrorist threat it is facing.

The new law sensibly establishes what the Xinhua News Agency described as “a national leading organ for counter-terrorism work, which will be in charge of identifying terrorist activities and personnel, and coordinate nationwide counter-terrorist work.” There will be a national intelligence center.  Its responsibility will be to “coordinate inter-departmental and trans-regional efforts on counter-terrorism intelligence and information.”

The law defines ‘terrorism’ specifically for the first time in the Chinese legal system. According to the Xinhua News Agency:

“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.”

The Obama administration has expressed concern that the law may adversely affect freedom of speech and association. It also fears that the government will use the new rules dealing with encryption to monitor its citizens, intrude into technology firms’ business affairs and take their intellectual property.

Against the backdrop of the terrorist attacks targeting Chinese civilians, China acted in an appropriate fashion, as various Western countries have done in the face of their own threats. China’s counter-terrorism law states clearly what its drafters really were concerned about in terms of the scope of terrorist activities: “[China] opposes all extremism that seeks to instigate hatred, incite discrimination and advocate violence by distorting religious doctrines…”

It is way premature for the Obama administration to denigrate China’s law as intended to increase domestic surveillance for the purpose of controlling dissent. It is also a bit like the pot calling the kettle black. Indeed, the Obama administration’s own broad surveillance program has included U.S. journalists as targets.

Moreover, the Obama administration did not display concern with the freedom of speech implications of a resolution it co-sponsored in the United Nations, backed by the Organization of Islamic Cooperation. That resolution, passed by the UN Human Rights Council and the General Assembly in 2011, was entitled “Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” Although neutral on its face, the history of its passage indicates that it was clearly aimed primarily at addressing Islamophobia.

Among other things, the resolution “condemns any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audio-visual or electronic media or any other means.” (Emphasis added)  It calls for the adoption of “measures to criminalize incitement to imminent violence based on religion or belief.”

The question left unresolved was where to draw the line between permissible expression of ideas and “advocacy” of “religious hatred” constituting “incitement” to violence. It is no less susceptible to broad interpretations that could result in the curbing of free speech as China’s definition of “terrorism.” At least China is trying to protect innocent victims of terrorism and extremism, not those who subscribe to a religiously based ideology that fuels such terrorism and extremism.

Regarding concerns raised by the Obama administration with respect to China’s new de-encryption requirements, the law in its final form removed the provisions most worrisome to technology firms. The law as passed does not mandate firms to store user data on servers within China or to have their encryption systems reviewed in advance by the Chinese government. Firms will not be required to provide the government with their code and other technical information in order to enable the government to monitor users in a sweeping manner. These requirements were in earlier drafts of the law but deleted in the version that was passed. What remains is a very sensible, targeted enforcement tool, which, according to a report on Bloomberg News, requires “firms to assist security authorities on matters such as computer interface technology and encryption keys.”

There should be means available for counter-terrorism enforcement agencies to intercept and de-encrypt electronic communications that terrorists and their supporters are using to plan and execute attacks before they can be carried out. The pendulum has swung too much towards privacy protection and away from protection of innocent lives since Edward Snowden’s revelations of National Security Agency snooping in 2013.

Think of de-encryption as analogous to de-coding messages during World War II. Prime Minister Winston Churchill credited ground-breaking de-coding techniques as “making the single biggest contribution to Allied victory in the war.” However, just as World War II was largely fought as a conventional war with clearly identified military forces, so too was the de-coding focused on German military, SS and police messages. Today, the lines of war are far more blurred. Just as terrorists use civilians as human shields, the terrorists are using encrypted sites and tools designed to protect the privacy of individuals’ communications to mask their deadly plots against civilian targets. Using all means necessary to thwart the terrorists’ use of technology for their perverted purposes should be a no-brainer. The Chinese understand this. The Obama administration does not.

“Not only in China, but also in many places internationally, growing numbers of terrorists are using the Internet to promote and incite terrorism, and are using the internet to organize, plan and carry out terrorist acts,” Li Shouwei, a criminal law expert from the Standing Committee of the National People’s Congress, said at a news conference.

U.S. technology firms are offering encryption services in which only the sender and receiver of an encrypted communication have the keys to de-encrypt the message. The firms have also produced devices which allow only the device owner to unlock the data residing on that device. They designed their products so that even the companies themselves lack the means to access the data through a “backdoor.” When end users are given sole control over the means necessary to de-encrypt their communications and unlock their electronic devices, counter-terrorism enforcement agencies will literally be in the dark.

The tech firms should do the right thing and voluntarily provide counter-terrorism enforcement agencies the tools and information they need to de-encrypt communications from suspect sources and to unlock the smartphones and apps they produce. To date, however, they have dragged their feet. According to Rep. Adam Schiff (D-Calif.), who has spoken with Twitter, Facebook and Google, “they don’t want to be asked to come up with a solution.”

Legislation may be necessary. Like China’s new law, it should require tech firms to cooperate with government investigators operating under court order in the de-encryption of messages and unlocking of devices. The Obama administration has decided not to seek such legislation, however. It would prefer to remain in the dark as ISIS and other jihadist groups use American-made technologies to plan and carry out their deadly attacks.


Joseph A. Klein 

Pro Deo et Constitutione – Libertas aut Mors
Semper Vigilans Fortis Paratus et Fidelis
Joseph F Barber

To Arms! – The Blueprint for an American Patriot Insurgency

https://www.facebook.com/notes/joseph-f-barber/to-arms-the-blueprint-for-an-american-patriot-insurgency/10150416971474984



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