The newly revised national security law in Hong Kong allows police to demand that citizens hand over passwords for their electronic devices. (Video screenshot)
[People News] On March 23, the Hong Kong government announced that in future cases related to the national security law, individuals who refuse to provide their mobile phone or computer passwords during police investigations could face up to one year in prison and a fine of 100,000 Hong Kong dollars.
Refusal to provide passwords is classified as a criminal offence
According to various media reports, the Hong Kong government has recently amended the implementation rules of the national security law, adding a new provision in the 'Supplementary Provisions on Electronic Devices.' This provision states that if police determine that electronic devices such as mobile phones and computers may contain evidence during an investigation, individuals who refuse to provide unlocking passwords or decryption methods will be committing a crime and may face criminal liability. The new regulations have been officially published and are now in effect. Additionally, the scope of these regulations extends beyond just the parties involved in national security cases; it also includes device owners, authorised users, and anyone who knows the password, all of whom are obligated to assist in decryption. The Hong Kong government stresses that no one can refuse to cooperate on the grounds of 'potentially leading to criminal liability' or 'confidentiality obligations.'
According to a report by AFP, this amendment explicitly categorises 'refusal to provide passwords' as a criminal offence. The provision states that in the investigation of national security cases, relevant individuals cannot refuse to cooperate with law enforcement based on reasons such as 'potentially leading to criminal liability' or 'violating confidentiality obligations.' Observers generally believe that this move indicates that Hong Kong has entered a new phase of law enforcement regarding the collection of evidence from digital devices and the boundaries of privacy.
Under the new revisions, individuals who refuse to provide police with passwords or decryption methods for their mobile phones, computers, or other electronic devices could face up to one year in prison and a fine of HKD 100,000. Unlike in the past, where choosing not to provide a password typically did not constitute a violation, the new regulations have significantly altered the associated legal responsibilities.
In addition to the obligation to provide passwords, this revision also broadens law enforcement powers. As reported by Hong Kong media outlet InMediaHK, Hong Kong Customs officers are now included in the category of law enforcement personnel under the national security regulations, granting them the authority to exercise relevant powers legally at airports and border checkpoints.
The Hong Kong government stated in a press release that the implementation details align with the human rights protections outlined in the Basic Law, emphasising that law enforcement measures will not disrupt the daily lives of citizens or the normal operations of institutions.
A Significant Shift in Hong Kong's Criminal Law Principles
This revision explicitly states that individuals cannot refuse to cooperate on the grounds of 'potentially leading to conviction' or 'violating confidentiality obligations.' This change is viewed as a major reversal of Hong Kong's criminal law principles, drawing significant public attention. Prior to this, numerous commentators, legal scholars, and human rights organisations had engaged in extensive discussions on the topic.
External discussions primarily centre around several key controversies:
1. The Erosion of the 'Right to Silence' and the Principle of 'Not Self-Incrimination'. This topic has sparked intense debate among commentators. Within the traditional common law framework, defendants possess the right against self-incrimination. Many legal analysts argue that compelling individuals—whether they are subjects of investigation, device owners, or even 'any knowledgeable person'—to provide unlocking passwords is tantamount to forcing them to surrender evidence that could incriminate themselves.
2. The 'Borderless' Enforcement of Digital Privacy. Given that mobile phones and computers hold a significant amount of personal information in today's world (including electronic payments, private communications, medical records, etc.), commentators highlight that this authority is not limited to direct defendants in national security cases; customs officials are now also empowered to enforce laws at designated locations such as airports and checkpoints. Furthermore, the revised regulations mandate that anyone aware of a password (such as company IT managers or family members) has a duty to assist, with non-compliance potentially resulting in a prison sentence of up to one year.
3. The Broad Application of the Definition of 'National Security'. Many commentators (including columnists from Radio Free Asia, Liberty Times, and other media outlets) contend that with the comprehensive implementation of Article 23 of the Basic Law and subsequent amendments, law enforcement agencies have considerable discretion in determining what qualifies as 'electronic devices containing evidence'. Some international political figures have also weighed in, criticising the vagueness of such legal definitions, which could be exploited to suppress dissent and facilitate transnational repression.
According to a report by the Central News Agency, Article 23 of the Hong Kong Basic Law is set to officially take effect on March 23, 2024. U.S. Secretary of State Antony Blinken highlighted on the 22nd that the vague definitions of terms like "sedition" and "state secrets" in this law could potentially be used to suppress dissent. The enforcement of this new law, along with its ambiguous clauses, may further violate China's international commitment to uphold Hong Kong's high degree of autonomy, undermine the "one country, two systems" framework, and harm Hong Kong's reputation as an international business hub.
Experts: "Silence" Becomes a Crime
Thomas Kellogg, the Executive Director of the Georgetown University Asian Law Centre (GCAL) in Washington, D.C., and his team submitted a formal proposal to the Hong Kong government in February 2024. This proposal addresses the powers related to electronic device searches and compulsory decryption under Article 23 of the Hong Kong Basic Law (National Security Law). The document explicitly states that the expanded law enforcement powers proposed in Article 23 (including digital searches) lack adequate judicial oversight.
The document also notes that the requirement to compel individuals to disclose passwords fundamentally conflicts with the principle of "privilege against self-incrimination" in common law. It emphasises that such provisions, without independent judicial oversight, are highly prone to misuse for "fishing expeditions" in law enforcement.
The document outlines several criticisms: Firstly, the expansion of law enforcement powers—such as extending detention periods and restricting access to legal counsel—combined with the acquisition of digital evidence, will place defendants at a significant disadvantage. Secondly, the vagueness of legal terminology could result in peaceful dissenters being charged with felonies based on communication records found on their electronic devices.
Guo Enhao has also shared his views on 'freedom of information' and 'mandatory decryption' in various major international media outlets. He believes that these practices push the threshold for criminal investigations in Hong Kong to an extreme, effectively making 'silence' a crime. In an exclusive interview with The Guardian, he emphasised that these provisions pose a serious threat to Hong Kong's 'information transparency' as an international financial centre, especially regarding the rights to search digital data.△
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