The SAR government proposed amendments to Article 43 of the Hong Kong National Security Law's implementation details. Opposition figures quickly spread claims online that police could forcibly unlock citizens' mobile phones during inspections and search journalists' devices at will.
In today's complex geopolitical landscape, countries are tightening national security laws. Hong Kong opposition figures often cite Western democracies as models. In fact, device "unlock orders" already exist across multiple "Five Eyes" nations.
The Hong Kong government, in documents submitted to the Legislative Council, referenced laws from the United Kingdom, Australia, New Zealand, Ireland, and Singapore—all containing similar provisions requiring mandatory disclosure of electronic device passwords. When these governments drafted their legislation, they all concluded that crime prevention outweighs privacy rights and the right to silence, leading them to establish such provisions.
First, the West Has Already Legislated
The UK's Regulation of Investigatory Powers Act 2000, Part III, sets a maximum penalty of 5 years imprisonment for violating an "unlock order."
Australia's Crimes Act 1914, Section 3LA sets a maximum penalty of 10 years' imprisonment.
New Zealand's Search and Surveillance Act 2012 imposes a maximum penalty of 3 months' imprisonment.
Singapore's Criminal Procedure Code 2010, Sections 39 and 40 authorize the Public Prosecutor to direct police to obtain encrypted information. Non-compliance carries a fine up to S$10,000 (roughly HK$61,000) or imprisonment up to 3 years.
Across these jurisdictions, the United Kingdom, Australia, and Singapore all impose penalties significantly harsher than Hong Kong's.
The Fifth Amendment to the United States Federal Constitution protects against self-incrimination. A phone passcode is a product of conscious thought; under the Fifth Amendment's logic, no one can be forced to reveal their thinking and thereby incriminate themselves, so no US law requires phone owners to surrender their passcode.
Yet the US government has found a workaround. Modern phones unlock via biometric features—facial recognition or fingerprints. A face or fingerprint is merely a biological characteristic, not language or conscious thought, and cannot represent a person's thinking. It involves no coercion of free will and thus requires no Fifth Amendment protection.
Today, provided a court issues a lawful warrant, US police can compel a phone owner to place their finger on the screen or open their eyes for facial scanning, forcing the device to unlock. Refusing a court warrant constitutes contempt of court.
Countries of the West require unlocking electronic devices to strengthen counter-terrorism efforts, investigate crimes, or address illegal immigration. Hong Kong's requirement is not unique.
Second, Hong Kong has court oversight
Hong Kong police officers seeking to unlock electronic devices must apply to the court for a warrant, with the court serving as the gatekeeper. If invoking Article 43 of the Hong Kong National Security Law, officers must demonstrate reasonable suspicion that the device contains evidence of crimes endangering national security under the law before a court warrant can be obtained. This directly contradicts opposition claims—police cannot arbitrarily stop citizens on the street and demand they unlock their phones.
Third, no exemptions for specific professions
On whether media outlets can refuse to unlock phones by citing "protection of news sources," Security Bureau Secretary Chris Tang Ping-keung was clear: everyone must comply with the law regardless of profession. No occupation receives exemption, and all individuals must provide materials related to national security cases in accordance with the law.
Press confidentiality enjoys no special privilege in countries like Britain and America, nor can it serve as a reasonable justification for refusing to unlock electronic devices—this is international practice.
Britain has imprisoned journalists for refusing to disclose their sources, while Australian police investigated in 2014 under the Proceeds of Crime Act whether Seven Network (Channel Seven) paid substantial fees in exchange for exclusive interviews with newly paroled drug trafficker Schapelle Corby, causing considerable controversy. Thus, even in Countries of the West, protecting sources is not grounds for refusing to unlock electronic devices or obstructing media searches.
The Jimmy Lai case is another apt example. On August 10, 2020, Hong Kong police searched the Apple Daily headquarters and arrested its founder Jimmy Lai and several company executives, ultimately prosecuting and convicting them. Police also successfully obtained a court order to unlock Jimmy Lai's mobile phone, obtaining crucial evidence of his violations of the Hong Kong National Security Law. This case precisely demonstrates that media figures can commit serious crimes and are not exempt from investigation.
In summary, even in the Western world, device unlock orders have become commonplace, with similar legislation prevalent in Countries of the West and often even more stringent than Hong Kong's. Endangering national security is the most serious crime, and law enforcement requires effective powers to investigate and combat it.
The amended regulations now include court oversight to safeguard human rights. On the other hand, national security legislation primarily targets the highest-level criminals, even state-level actors, who possess abundant resources and employ sophisticated tactics, making them extremely difficult to counter—they are not ordinary people like you and me.
Do not underestimate Hong Kong's national security risks. When facing state-level adversaries, Hong Kong is extremely vulnerable and must build strong legal safeguards to prevent serious breaches of national security.
Lo Wing-hung
Bastille Commentary
** 博客文章文責自負,不代表本公司立場 **
