China’s Expanded Anti-Espionage Law Threatens Business Consultants and Advisers

Ever since abruptly abandoning its “zero-COVID” pandemic containment strategy last year, China has been at pains to tell the world that it’s back open for business. “China will unswervingly stick to opening up regardless of changes to the global environment,” Premier Li Qiang said in March, reported by Time’s Chad de Guzman.

But a series of new measures are making it much harder for companies to operate there, particularly a revised anti-espionage law, which took effect on July 1 and is stoking fears that the country may become even more inhospitable to foreign investment.

Doing business in China has already been difficult – from dealing with stringent epidemic prevention protocols upending supply chains to navigating the increasingly hostile relationship and regulatory environment between the U.S. and China.

The revised anti-espionage law adds to these difficulties by threatening to ensnare consulting firms that businesses rely on to work in China. The law has expanded the definition of spying beyond the sharing of “state secrets” to include the sharing of “intelligence and other documents, data, materials, and items related to national security and interests.” Like many of China’s laws, however, it is intentionally broad and open to Beijing’s loose interpretation.

Michael Hart, President of the American Chamber of Commerce in China (AmCham China) tells TIME that a series of crackdowns on consulting and due diligence firms already underway since the spring has fueled anxiety that the law’s unclear wording could be used against business advisers who traffic in intelligence on behalf of corporations – and thus stymie the ability for foreign companies to operate without risking someone’s arrest. “If [consulting] companies can’t do those things, it’s awfully hard to see how people would be making additional investments,” Hart says.

Last year, state police raided the China offices of consulting firm Capvision for alleged “espionage” activities. In March, the Beijing office of U.S. firm Mintz, known for business-related background checks and intel gathering, was raided and five Chinese staff members were detained, with a foreign ministry official saying that the company was suspected of engaging in “illegal business.” Police also visited Bain & Co’s Shanghai office in April, with the Financial Times reporting that they took away company phones and computers. Deloitte and a number of its employees were fined the same month for faulty audits.

“There’s just a big question mark right now, over how welcome investment is,” Hart says. “The combination of these things has made people a little bit more concerned about data in general, transparency around how you could transgress rules.”

The importance of consultancies and due diligence firms. Business intelligence and due diligence firms are crucial to entering business in China, especially to foreign companies. These firms scope out the environment before they do business there, and part of their job is gather data and intel on major business investments, mergers and acquisitions that could affect their decisions. “Our view, all new investment requires due diligence,” Hart says.

But the anti-espionage law is a growing cause for concern. “Some things that companies used to consider to be basic, economic data, or production data, there is the interpretation that some of this could be considered national security,” Hart adds. The U.S. National Counterintelligence and Security Center, also said in a bulletin that the uncertainties in the law can extend to journalists and academics in their daily work.

The revised law may be “particularly tricky” to navigate, says Anna Ashton, director of China Corporate Affairs and U.S.‑China at risk consultancy Eurasia Group, when collecting and sharing data on high-tech industries that intersect with national security and competitiveness or if there are potential implications on human rights: “It will be harder for companies to rely on business intelligence firms to help them ensure that, for example, their supply chains are free of forced labor or their high-tech products are not being transferred to military end-users.”

Chinese state media covered one example of how the law could play out: a Chinese citizen in Shenzhen who ran a consulting firm was sanctioned after cooperating with a foreign NGO in conducting a detailed audit of human rights-related supply-chain issues in Xinjiang.

China’s growing opacity

It may be too early to tell if the anti-espionage law’s enactment will dent future business confidence in China, Ashton says, but if more foreign businesses are targeted in the campaign and employee detentions increase, then the deterrent effect will be “more significant.”

But the spring raids on due diligence firms have already started to create a chilling business environment. Hart says the lack of transparency over why consulting firms have been cracked down on is making it difficult for businesses to navigate what’s illegal and what’s not.

The law is also just part of a slew of reforms Xi has pushed in order to regulate the information pouring out of China in the name of national security.

Data from the Mercator Institute of China Studies shows that the country’s State Council has released 21.5% fewer policy documents to the public than it did in 2015. China’s biggest financial data provider has also since restricted offshore users from accessing important business information following a rule from China’s cybersecurity regulator on data exports.

This growing opacity from China is already hurting its bottom-line. Earlier this year, an AmCham China survey found that 32% of the group’s member companies cite “inconsistent regulatory interpretation” and “unclear laws and enforcement” as a major risk in the country. The report also found that the group’s member companies, for the first time, were less willing to invest in the country despite the large size of its market, with nearly 45% of respondents saying the domestic investment environment is “deteriorating.”

A June report from the European Chamber of Commerce in China also found that a record 64% of European companies say doing business in China has grown more difficult in the past year, and that 11% have already shifted existing investments outside of the country.

Beijing’s preference is made clear

The revised anti-espionage law is merely a reflection of Chinese President Xi Jinping’s “bottom-line thinking,” says Alfred Wu, an associate professor who researches Chinese governance at Singapore’s Lee Kuan Yew School of Public Policy. The economy is much less of a priority when compared to independence from foreign interference, says Wu.

While China outwardly dissuades countries – including the U.S. – from decoupling, Wu reasons, Xi wants to prepare for the worst when it comes to the country’s business outlook: “His argument is, ‘We need to actually really think about that, once we have zero external support or like zero foreign investment, we still can survive.’”