The public consultation period ends today for the controversial Article 23 in Hong Kong. AppleCensorship.com talked to law expert Eric Lai earlier this month about the human rights impact of National Security Law (NSL), censorship, freedom of expression, and how to respond to even stricter legal challenges posed by the new laws.

As the Hong Kong government pushes for Article 23 to pass, discussions about the Special Administrative Region’s autonomy and liberty of its local and foreign residents alike caught the attention of international press. The prospect of the security-focused laws target espionage, state secrets and foreign influence — on top of the 2020-enacted National Security Law — sending chills to rights advocates and defenders, as well as for foreign businesses and investors.

Eric Yan-ho Lai is a veteran human rights scholar and advocate from Hong Kong. He left in 2020 for London, where he received his PhD in law. He is now a research fellow at Georgetown Center for Asian Law in Washington D.C.

“The broad and vague definition of national security would make free speech and information access become more difficult,” Lai told AppleCensorship.com in a recent interview.

A clear definition of state secret and acts of espionage, or what constitutes foreign interference are all lacking in the Article 23 consultation paper, most likely intentionally in order to allow maximum room for interpretation by the HK government.

For example, “state secret could cover not just national defense or military intelligence, but information about economic and social development in Hong Kong and China,” Lai said. Publicizing statements which the government determined to be fake news or disinformation could be considered a threat to national security. Such conditions easily generate a chilling effect in the public discourse, discouraging the expression of voices critical of the government.

“Somehow, the government has a way to control all this information flow if they deem a piece of disinformation as threatening their security,” he added.

From bad to worse

The removal of the HKMap.live app from Hong Kong’s App Store amid the pro-democracy protests in October 2019 stands out as the quintessential case of mobile app censorship to date. Apple said the app violated the firm’s guidelines and Hong Kong’s local laws, while the app’s developers refuted the accusations.

“The app mainly provided information, instant information of how the city was going on, right? So even for non-protesters, even for citizens, they also want to know which area they shall avoid going for their own assessment. There was no ground for the taking down because the creators of the app were not even arrested,” Lai commented.

Nine months after HKMap.live was removed, the Hong Kong government enacted the National Security Law. Under the new law, a climate of fear began to spread, and self censorship began to grow. Lai explained that under the NSL, the government has the authority to conduct investigation or interrogation against individuals, who are then forbidden from disclosing their interrogation to the public. This suggests that more government-initiated investigations and potential censorship can occur behind the scenes, away from public scrutiny.

A transparency report from Google revealed that the Hong Kong government made requests to remove 183 items — mostly from YouTube — in the second half of 2022 alone, including 55 related to national security. As for Apple, the firm didn’t bother to include app removals in Hong Kong during the same period in its transparency report. This omission, previously highlighted by AppleCensorship.com, raises questions about the deliberate neglect and extent of undocumented activities.

With the upcoming Article 23, Lai believes it would make such public disclosure even more challenging, as such information could potentially be perceived as ‘state secret’ if the authorities were to interpret it that way, thus disclosing it would break the law.

When asked to give recommendations as to how tech giants operating in Hong Kong should respond, Lai said to “be more transparent of government requests is always helpful to the public, and allow the public to recognize how the government in Hong Kong is restricting information access.”

Worse and beyond

In July 2023, users found out that the ‘Punish Mee’ app on their phone was no longer working.The app, which gathered information about shops and restaurants supportive of the democracy movement in Hong Kong, had been removed from both Hong Kong’s App Store and Play Store, with its social media accounts also inaccessible.

The same week Hong Kong national security police arrested five people who were linked to both Demosisto (political party advocating for Hong Kong’s self-determination, now disbanded) and the app. Accusations against them include funding rights activists who had left Hong Kong with income from operating the app.

“No one could know whether they removed it by themselves or Apple did…The Hong Kong government can request Apple to provide any information of these apps and its creators or owners. So in a way, there’s also a threat to these people,” Lai remarked.

Indeed, the NSL has accelerated the demise of the ‘one country, two systems’, with Article 23 further enhancing the Hong Kong government’s control over its citizens. The outlook for rights advocates and defenders in Hong Kong appears bleak, while foreign companies would tread carefully to avoid accusations of ‘foreign interference.’

How to cope with the increasingly challenging legal circumstances? Lai stresses the importance of updating risk assessments for rights defenders. “The consultation document has a lot of ambiguities. And the government has to codify these ambiguities into a new legislative bill. So rights advocates could only assess their risk of continuing their work or assess their current settings of digital security until the bill is out.”

The same for commercial companies, they have to reassess risk and conduct due diligence in terms of their investments in Hong Kong, because “the new legal framework could make them having the same risk as in mainland China,” Lai added.