Past as Prologue: Intercept and Surveillance Rules Under Hong Kong's National Security Law

Abstract

In response to civil unrest in 2019, in 2020 Beijing directly applied a new National Security Law to Hong Kong. Part of this law established a new system of rules for the authorisation of communications intercepts and covert surveillance in the context of certain national security offences. Interestingly, this new scheme looks in many ways like a prior system that was deemed unconstitutional by a Hong Kong court in 2006: it centralises authorization authority in the executive branch and there is little external oversight of the process. The paper argues that the new system of rules regarding covert surveillance of national security suspects and the interception of their communications is more than just a mechanism to ease the detection of national security threats, however. It is a symbolic reaffirmation that notwithstanding the guarantee of judicial independence under the Basic Law, that independence will never extend to checking state interests. It is a clear example of the Central Authorities’ intent to exercise ‘comprehensive jurisdiction’ over Hong Kong through the office of the Chief Executive, who it has recently described as holding a ‘transcendent’ position over the three branches of the local government.

Keywords: Hongkong, china, nationalsecurity, surveillance, interception, communications, crime, law

JEL Classification: K10, K14, K33