Critics have slammed the Hong Kong government for allowing police to intercept communications and request personal data from service providers under the new national security legislation, citing privacy infringement risks.

Under Article 23 of the controversial law criminalising secession, subversion, terrorism and foreign interference, the force may also conduct warrantless searches or private properties, restrict suspects’ movements and freeze their assets. The details were gazetted on Monday.

national security law
File photo: Tom Grundy/HKFP.

Speaking to reporters at the Legislative Council, IT sector lawmaker Charles Mok expressed concern about the new powers: “The administration has bypassed the judiciary’s gatekeeping role [for information]. It also means that the mainland Chinese firewall has migrated to Hong Kong.

He added the gazetted details also implied extraterritorial jurisdiction, which may not be feasible as it would involve requesting overseas service provides to remove information.

‘Direct infringement’

Barrister Lawrence Lau, who represented the first defendant prosecuted under the national security law, told HKFP he thought the newly-gazetted details were constitutionally bizarre.

“Article 43 doesn’t empower the administration to pass another piece of criminal legislation or penal code without resorting to the local legislature,” he said. “My primary reading of Article 43 was to allow the administration to make its own house rule for implementation, like the police general orders, instead of making law to empower […] law enforcement agencies, as well as setting penal code on those infringing those rules.”

Digital rights activist Johnson Yeung told HKFP the implementation rules of Article 43 were a direct reference to the China Internet Security Law: “[It] imposes further responsibility and duties [on] internet service providers and vendors to give up users’ data, and assist the authority to infringement rights to privacy of citizens in Hong Kong.”

He added it would affirm a framework of social control and transport a mainland Chinese mindset rooted in internet governance.

Photo: Ross Richardson.

“Article 43 is a direct infringement to rights to privacy of Hong Kong people because it [nullifies] judicial scrutiny on surveillance. The police can now conduct surveillance and interception of communications under the instruction of the police commissioner, the chief executive, and the national security agency which all operate in secrecy.”

Yeung added the detail enabling police to instruct internet service providers and vendors to remove content was similar to a clause under China’s cybersecurity law, which attaches legal responsibility to social media admins and operators: “[These] terror tactics aims to cultivate a culture of self-censorship.”

Video conferencing platform Zoom and messaging app Telegram previously told HKFP they would reject data requests from the Hong Kong government following the enactment of the national security law.

marco leung pacific place june 15 2020
Photo: Studio Incendo.

Yeung said the best way to mitigate security risks was to reduce the amount of data vendors collect from users.

Digital security expert Leo Weese told HKFP he doubted whether foreign telecommunication providers would cooperate with such requests.

He also said the government may eventually order local providers to block access to foreign platforms due to their reluctance to comply with data requests.

Rachel Wong previously worked as a documentary producer and academic researcher. She has a BA in Comparative Literature and European Studies from the University of Hong Kong. She has contributed to A City Made by People and The Funambulist, and has an interest in cultural journalism and gender issues.