COVERT SURVEILLANCE BILL TO PASS DESPITE

C O N F I D E N T I A L HONG KONG 003109

SIPDIS

NOFORN
SIPDIS

NSC FOR DENNIS WILDE
DEPT FOR EAP/CM

E.O. 12958: DECL: 08/01/2031
TAGS: PGOV PHUM PREL HK CH PINR MC
SUBJECT: COVERT SURVEILLANCE BILL TO PASS DESPITE
PAN-DMOCRATIC OPPOSITION

REF: A. HONG KONG 2850


B. HONG KONG 0465

CLASSIFIED BY: ACTING E/P CIEF JEFF ZAISER. REASONS: 1.4(B,D).


1. (SBU) SUMARY: PAN-DEMOCRATIC LEGISLATORS ANNOUNCED ON
JLY 28 THAT THEY WOULD VOTE EN BLOC AGAINST THE COVERT
SURVEILLANCE BILL WHEN IT COMES UP FOR A VOTE IN THE
LEGISLATIVE COUNCIL AS EARLY AS AUGUST 2. DESPITE THIS,
PASSAGE OF THE LEGISLATION IS ALL BUT ASSURED GIVEN THE
SUPPORT OF THE PRO-GOVERNMENT PARTIES. WHILE SOME NGOS AND
MEDIA ORGANIZATIONS HAVE EXPRESSED CONCERN IN RECENT DAYS
ABOUT THE BILLS IMPACT ON INDIVIDUAL FREEDOMS, THE PUBLIC
HAS LARGELY IGNORED THE DEBATE. HONG KONG HUMAN RIGHTS
MONITOR DIRECTOR LAW YUK-KAI, WHO WAS INVOLVED IN SOME OF THE
NEGOTIATIONS, TOLD US ON JULY 31 THAT THERE WAS VIRTUALLY NO
CHANCE THE BILL WOULD BE SIGNIFICANTLY AMENDED AT THIS LATE
STAGE. LAW SAID THAT MUCH NOW DEPENDS ON HOW THE BILL IS
IMPLEMENTED SINCE SOME OF THE LANGUAGE REMAINS VAGUE. WITH
PASSAGE ALL BUT ASSURED, LAW PREDICTED THAT THE BATTLE TO
PROTECT INDIVIDUAL FREEDOMS FROM GOVERNMENT SURVEILLANCE WILL
NOW MOVE TO THE COURTS AS INDIVIDUAL CASES ARISE. END
SUMMARY.

SUN SETTING ON COVERT SURVEILLANCE DEBATE
--------------


2. (C) THE 24 PAN-DEMOCRATIC MEMBERS OF THE LEGISLATIVE
COUNCIL (LEGCO) ANNOUNCED ON JULY 28 THAT THEY WOULD VOTE
AGAINST THE COVERT SURVEILLANCE BILL EN BLOC WHEN IT COMES UP
FOR A VOTE DURING A SPECIAL LEGCO SESSION BEGINNING AUGUST 2.
THEY SAID THEIR DECISION WAS MADE IN PROTEST AGAINST THE
GOVERNMENTS REFUSAL TO ADD A "SUNSET CLAUSE" TO THE BILL.
AFTER FAILING TO GET THE GOVERNMENT TO AGREE TO ALL BUT A FEW
OF THEIR 200 AMENDMENTS, THE DEMOCRATS HAD HOPED TO INSERT
THE SUNSET PROVISION AS A MEANS OF FORCING A REVIEW OF THE
LEGISLATION IN TWO YEARS TIME. THEY ARGUED THAT A MANDATORY
REVIEW WAS THE BEST WAY TO ENSURE THAT IMPERFECTIONS IN THE
LEGISLATION WOULD BE CORRECTED, ESPECIALLY GIVEN THE
COMPLEXITY OF THE ISSUES INVOLVED AND THE COMPRESSED
TIMEFRAME IN WHICH THE BILL WAS PUSHED THROUGH LEGCO.
HOWEVER, SECRETARY FOR SECURITY AMBROSE LEE ARGUED THAT A
SUNSET CLAUSE WOULD CREATE TOO MUCH LEGAL UNCERTAINTY FOR LAW
ENFORCEMENT OFFICERS.


3. (SBU) DESPITE UNITED OPPOSITION FROM THE PAN-DEMOCRATS,
PASSAGE OF THE LEGISLATION IS ALL BUT ASSURED. THE TWO MAJOR
PRO-GOVERNMENT PARTIES, THE LIBERAL PARTY AND THE DEMOCRATIC
ALLIANCE FOR THE BETTERMENT AND PROGRESS OF HONG KONG (DAB),
HAVE ALREADY ANNOUNCED THEIR SUPPORT FOR THE LEGISLATION, AND
IT SEEMS VERY UNLIKELY THAT ANY OF THEIR MEMBERS WILL BREAK
RANKS. UNLIKE CONSTITUTIONAL CHANGES, WHICH REQUIRE A
TWO-THIRDS VOTE, THE ENACTMENT OF A LOCAL ORDINANCE REQUIRES
ONLY A SIMPLE MAJORITY. WITH A 36 TO 24 SEAT ADVANTAGE IN
LEGCO, THE PRO-GOVERNMENT PARTIES HAVE MORE THAN ENOUGH VOTES
TO PREVAIL.

TOO LITTLE, TOO LATE
--------------


4. (C) WHILE THE COVERT SURVEILLANCE DEBATE HAS THUS FAR BEEN
LARGELY CONFINED TO LEGCO AND VARIOUS LEGAL CIRCLES, SOME
NGOS AND MEDIA ORGANIZATIONS ARE BEGINNING TO EXPRESS CONCERN
OVER CERTAIN ASPECTS OF THE LEGISLATION. ON JULY 30,
INDEPENDENT DAILY "MING PAO" SAID THAT SEVERAL NGOS,
INCLUDING THE HONG KONG JOURNALISTS ASSOCIATION AND THE CIVIL
HUMAN RIGHTS FRONT, HAD EXPRESSED THE FOLLOWING TEN "BIG
WORRIES" (ALL OF WHICH HAD BEEN RAISED PREVIOUSLY BY THE
PAN-DEMOCRATS) ABOUT THE LEGISLATION:

-- THE TERM "PUBLIC SECURITY" IS NOT CLEARLY DEFINED.
-- PRESS FREEDOM MAY BE INFRINGED IF THE MEDIA BECOMES A
TARGET OF COVERT SURVEILLANCE.
-- THE CHIEF EXECUTIVE AND OTHER PRINCIPAL OFFICIALS ARE NOT
COVERED UNDER THE BILL.
-- EXECUTIVE AUTHORIZATION OF LESS-INTRUSIVE SURVEILLANCE MAY
LEAD TO COVER-UPS.
-- THE BILL GIVES EXCESSIVE POWER TO LAW ENFORCEMENT
AGENCIES, WHICH COULD LEAD TO ABUSE.
-- THERE IS NO MECHANISM FOR VICTIMS TO OFFER A DEFENSE WHEN
JUDGES AUTHORIZE SURVEILLANCE.
-- THE BILL DOES NOT COVER COVERT SURVEILLANCE BY INFORMANTS
OR UNDER-COVER AGENTS.
-- THE BILL DOES NOT COVER FOREIGN OR MAINLAND LAW
ENFORCEMENT AGENCIES.
-- THERE ARE NO CRIMINAL SANCTIONS FOR NON-COMPLIANCE.
-- THERE IS NO MECHANISM FOR NOTIFYING PEOPLE WHO ARE


WRONGFULLY TARGETED.


5. (SBU) BECAUSE OF THESE CONCERNS, LOCAL NGOS ARE MAKING A
LAST DITCH EFFORT TO PERSUADE PRO-GOVERNMENT LAWMAKERS TO
OPPOSE THE BILL. LIKEWISE, THE ENGLISH-LANGUAGE "SOUTH CHINA
MORNING POST" IN AN EDITORIAL ON AUGUST 1 URGED LAWMAKERS TO
VOTE AGAINST THE BILL BECAUSE IT "FAILS TO STRIKE THE RIGHT
BALANCE BETWEEN THE NEED TO COMBAT CRIME AND THE RIGHT TO
PRIVACY." THE PAPER WENT ON TO URGE THAT "IT IS NOT TOO
LATE, HOWEVER, FOR THE TWO PRO-GOVERNMENT PARTIES TO CHANGE
THEIR MINDS TO DEMONSTRATE TO THE PUBLIC THAT THEY TAKE THE
PROTECTION OF PRIVACY SERIOUSLY."


6. (C) HOWEVER, HONG KONG HUMAN RIGHTS MONITOR DIRECTOR LAW
YUK-KAI, WHO HAS BEEN INVOLVED IN SOME OF THE NEGOTIATIONS,
TOLD US ON JULY 31 THAT THERE IS VIRTUALLY NO CHANCE THE BILL
WILL BE AMENDED SIGNIFICANTLY AT THIS LATE STAGE. THE MOST
THAT IS POSSIBLE IS THE PASSAGE OF A FEW MINOR AMENDMENTS
THAT WOULD CLARIFY SOME OF THE LANGUAGE, LAW SAID. AMBROSE
LEE SEEMED TO AGREE WHEN HE CONFIDENTLY PREDICTED ON JULY 31
THAT THE BILL WOULD PASS BEFORE THE AUGUST 9 DEADLINE (SEE
REF A).

MUCH DEPENDS ON IMPLEMENTATION
--------------


7. (C) LAW SAID THAT BECAUSE SOME OF THE LANGUAGE IN THE BILL
REMAINS VAGUE, MUCH DEPENDS ON HOW IT IS IMPLEMENTED. "AS
ALWAYS, OUR RIGHTS ARE QUITE FRAGILE, AND IF THE AUTHORITIES
ARE DETERMINED TO UNDERMINE THEM, THEY CAN DO SO, BUT WE NEED
TO CREATE AS MANY HURDLES FOR THEM AS POSSIBLE." DESPITE
THIS RATHER PESSIMISTIC STATEMENT, LAW SAID THE BILL WAS A
STEP IN THE RIGHT DIRECTION, AND "BETTER THAN WHAT WE HAD IN
THE PAST." AT LEAST NOW THERE IS AN OPPORTUNITY TO SHED
LIGHT ON A PROCESS WHICH HAD PREVIOUSLY BEEN COMPLETELY
HIDDEN FROM PUBLIC VIEW. UNDER THIS LEGISLATION, IT WILL BE
MORE DIFFICULT FOR AUTHORITIES TO COVER-UP ILLEGAL
SURVEILLANCE, IF FOR NO OTHER REASON THAN THERE WILL BE MORE
PEOPLE INVOLVED ON THE PROCESS OF AUTHORIZING SUCH
ACTIVITIES, LAW SAID.


8. (C) LAW BELIEVES THERE NEEDS TO BE A SUBSTANTIAL REVIEW OF
THE LEGISLATION AT SOME POINT, NOT ONLY TO ENSURE THAT
FUNDAMENTAL FREEDOMS ARE NOT BEING INFRINGED, BUT ALSO TO
ENSURE THAT THE LEGISLATION IS IN LINE WITH INTERNATIONAL
STANDARDS. HOWEVER, HE PREDICTED "THERE WON'T BE ANY
MEANINGFUL REVIEW," NOW THAT THE GOVERNMENT HAS REFUSED TO
INCLUDE A SUNSET CLAUSE. THERE WON'T BE ANY PUBLIC SCRUTINY
OF THE LAW AT ALL ONCE IT IS PASSED BECAUSE LEGCO WILL HAVE
NO FURTHER ROLE TO PLAY, HE ADDED.

ONLY THE FIRST OF MANY BATTLES TO COME
--------------


9. (C) WITH PASSAGE ALL BUT ASSURED, LAW PREDICTED THAT THE
BATTLE TO PROTECT INDIVIDUAL FREEDOMS FROM GOVERNMENT
SURVEILLANCE WILL NOW MOVE TO THE COURTS AS INDIVIDUAL CASES
ARISE. SUCH CASES WILL BE VERY DIFFICULT TO BRING, HOWEVER,
BECAUSE MEMBERS OF THE PUBLIC WILL HAVE NO WAY OF KNOWING
THEY HAVE BEEN WRONGLY SURVEILLED. THE PROPOSED COVERT
SURVEILLANCE COMMISSIONER (SEE REF B) WILL BE UNDER NO
OBLIGATION TO INFORM SUCH VICTIMS THAT THE LAW HAS BEEN
BREACHED. MOREOVER, THE BILL DOES NOT ALLOW VICTIMS ACCESS
TO MATERIAL GATHERED THROUGH COVERT SURVEILLANCE. BUT
PERHAPS THE BIGGEST PROBLEM WITH THE BILL, ACCORDING TO LAW,
IS THE LACK OF CRIMINAL PENALTIES FOR NON-COMPLIANCE. THIS
WILL SEVERELY UNDERMINE THE LAW BECAUSE IT MEANS "A VIOLATION
DOESN,T MEAN ANYTHING." LAW ADDED "THE WHOLE PURPOSE OF THE
BILL IS UNDERMINED BECAUSE OF THIS."


10. (C) LAW ARGUED THAT IN ORDER FOR THE LAW TO BE EFFECTIVE,
ADDITIONAL LEGISLATION IS NEEDED TO ADDRESS PRIVATE
SURVEILLANCE (NOTE: THIS BILL PERTAINS ONLY TO THE ACTIVITIES
OF HONG KONG LAW ENFORCEMENT AGENCIES. THE GOVERNMENT HAS
SAID IT WOULD ADDRESS SURVEILLANCE BY PRIVATE ENTITIES AT A
LATER TIME. END NOTE.) NEVERTHELESS, HE AGREED WITH THE
GOVERNMENT'S POSITION THAT LEGISLATION COVERING PRIVATE
SURVEILLANCE, WHICH HAS POTENTIALLY EVEN MORE FAR-REACHING
IMPLICATIONS FOR INDIVIDUAL FREEDOMS, SHOULD BE HANDLED
LATER. LAW ADDED "PRIVATE SURVEILLANCE IS MUCH MORE
COMPLICATED."
SAKAUE