VZCZCXYZ0014
PP RUEHWEB

DE RUEHHKA #3109 2131027
ZNY CCCCC ZZH ZUI RUEWCSE5092 2131034
P 011027Z AUG 06
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC 0000
INFO CHINA POSTS COLLECTIVE
RHEHNSC/NSC WASHDC

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