The governing body of Hong Kong rushed approval of Article 43(new window), which grants sweeping powers to Hong Kong law enforcement, including the ability to intercept private communications and censor online media without a warrant. These regulations specify the powers that the Hong Kong government can take under the National Security Law(new window) that was passed by China’s National People’s Congress on June 30.
Article 43 was published at 9:51 PM local time, July 6, and went into effect two hours later at midnight on July 7. The regulations it introduces make it much easier for Chinese authorities to stifle dissent in Hong Kong. Human rights activists and protestors fear that these regulations will allow China to surround Hong Kong with the ‘Great Firewall,’ the name given to the technological controls and legislative acts that allow China to censor Chinese websites and prevent access to the outside Internet.
What is contained in Article 43?
This rapidly introduced regulation gives law enforcement broad authority to investigate and censor anything or anyone that “endangers national security,” a concept that itself is vaguely defined and allows for the suppression of free speech. It allows the police to request the removal of an online message they deem inflammatory without a warrant or approval from a court. Any social media provider, Internet hosting service, and/or network service provider that does not delete or restrict access to a message after receiving such a request will face a fine of 100,000 Hong Kong dollars (roughly $13,000) and six months imprisonment. Any individual that refuses to delete an offensive post will face the same fine and up to a year in prison.
In cases where the messages are not immediately deleted, the police can get a warrant to seize the relevant electronic devices and force decryption.
Article 43 also dramatically expands the surveillance powers of Hong Kong law enforcement. Covert surveillance operations do not need court approval or a warrant, only approval from Hong Kong’s Chief Executive. It also states that “less intrusive covert surveillance” may be approved by a police force representative designated by the Chief Executive. This lack of oversight means there is no one to consider the surveillance subject’s basic right to privacy and due process.
These regulations extend law enforcement’s authority offline as well. Police can now (under exceptional circumstances) search premises or seize property without a warrant. They can also force anyone they suspect of violating the national security law to surrender their passport, preventing them from leaving Hong Kong, although this requires a warrant.
Article 43 effectively destroys the “one country, two systems” principle that allowed Hong Kong to maintain the freedom of speech, rule of law, and general openness that made the city such an international success. These regulations effectively quash the rights of Hong Kong citizens and subject them to the same surveillance and censorship that all Chinese citizens face.
The implementation of Article 43 completes the process that began with China’s National Security Law of June 30, which stripped Hong Kong of its autonomy. The national security law also threatens life imprisonment for any acts of “separatism, subversion, terrorism and foreign interference.”
What this means for Hong Kong
First, these regulations will immediately curb the media and Internet freedom of Hong Kong. Article 43 allows the Hong Kong police to force Internet service providers (ISPs) and social media platforms to censor the Internet for them. It seems unlikely that Hong Kong ISPs will be able to maintain the open and free Internet that Hong Kong is known for and comply with these regulations.
Second, the citizens of Hong Kong can no longer expect their rights to be protected. These regulations were implemented in response to the protests that have dominated the city since the spring of 2019. Everything about Article 43, from the broad powers it grants to law enforcement to its lack of oversight and due process to the way it was put into force in the middle of the night, smacks of an effort to undermine the legitimate rule of law.
This day was foreshadowed on June 30, when China’s national security went into effect. As soon as the law was implemented, a flood of Hong Kongers deleted their social media accounts(new window), fearing political messages could be used to convict them of subversion. Even with this warning, the Hong Kong government’s brazen attitude has shocked everyone, including Hong Kong activists who have long feared Chinese suppression.
How to resist Article 43
The Chinese government will first rely on local companies to clamp down on the Hong Kong Internet. However, as we have seen in the past, the Chinese government has often had the voluntary cooperation of foreign tech companies such as Apple(new window) when it comes to enforcing censorship. Let us state clearly that without a Swiss court order, we will not assist or comply with any Chinese demands over Article 43, and we remain committed to protecting Proton Mail and Proton VPN users in Hong Kong.
This government attack on its citizens’ rights is precisely the type of situation that led us to develop Proton Mail and Proton VPN. The first debate over China’s national security law back in May turned Proton VPN into one of Hong Kong’s most popular apps(new window). Now, we reaffirm our commitment to defend the privacy and freedom of speech that is necessary for democracy to flourish. You can support these efforts by signing up for a Proton Mail secure email account(new window) and standing with Hong Kong.
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