US Embassy in China Photo: cnsphoto

 "Is it illegal for the US Embassy and Consulates in China to ask Chinese employees to disclose their social media accounts, assets, and information of neighbors and friends?" 

Recently, Li Ming (pseudonym), who said to have worked at the US Embassy and Consulates in China, posted this question on a popular Chinese Q&A social media platform. 

Li said the US Embassy and Consulates conducted background vetting on Chinese employees once in several years. Such vetting touches on personal privacy and the Chinese employees were told that all information may be turned over to the US intelligence agencies. Although the US Embassy and Consulates said Chinese employees can register their information voluntarily, in reality, if they refuse, their work would be affected. 

"The US claims to protect personal privacy and respect human rights, while its behavior shows the country adopts such typical double standards," Li said in the post. 

Have the US Embassy and Consulates violated the privacy of Chinese employees? The Global Times recently interviewed several Chinese employees who had worked at the embassy and consulates including Li Ming, who said the job looks decent but is not that good at all. Under the cover of background vetting, the US Embassy and Consulates forced Chinese employees to submit their personal, family members and even their neighbors' information. The vetting made them feel like they were being interrogated.

The US Embassy in Beijing has not replied to the Global Times interview request as of press time. Chinese experts said that the practice of the US Embassy and Consulates is typical of excessive data collection and completely violates the relevant provisions in China's Personal Information Protection Law.

Submit or get fired 

Li still remembered clearly the day when he was required to fill in the form for background vetting. He was alone in the room with a Chinese employee who was responsible for this work. After filling in the form and signing his name, he was asked to read a "pledge statement" in the form, which made him feel awkward and weird, as if he was about to join some mysterious organization.

Zhao Ping (pseudonym), another ex-employee from the US Embassy and Consulates, also confirmed with the Global Times that all Chinese employees are required to accept background vetting while applying for a job. Such investigation would be conducted once every five years. He felt that such check has become stricter as the number of questions concerning personal privacy is growing. Some Chinese employees had expressed discontent before, but the US Embassy and Consulates said "it is the requirement from the superiority."

The Global Times obtained a copy of the form "Overseas Vetting Questionnaire," which is divided into two sections: instructions and formal form. The instructions, on the one hand, mention that "the provision of information is voluntary," but followed by a "threatening" sentence, which reads "however, if you do not provide the required information, your background investigation will not be completed, which will adversely affect your ability to obtain or retain Federal or contract employment or logical or physical abilities... Withholding, misreporting, or falsifying information may affect your ability to obtain or retain your Federal or contract employment... It may also result in a negative impact on your employment prospects and job status, and the potential consequences include but are not limited to removal, debarment from Federal service or prosecution."

The questionnaire is quite long with the question lists covering 11 A4 pages. The contents include basic personal information, residence history, social relations of three non-relatives within seven years, overseas travel within seven years, and whether they have been investigated by the US or other foreign governments. 

Photo: The Overseas Vetting Questionnaire

Chinese employees are required to fill out a supplementary background check form, which, in addition to almost all the information about their relatives, also requires to provide information about neighbors, mandatorily.

Zhao told the Global Times that a colleague of him once asked a neighbor for his phone number, and the neighbor asked, "Don't Americans trust your Chinese employees?" 

"The distrust has always been there," Zhao told the Global Times. For example, the US Embassy and Consulates would go through bags at the entrance and exit security checkpoints irregularly, and once asked Chinese staff to remove their shoes for inspection.

The Global Times has also learned from a source that the US Embassy and Consulates have full-time background check officers and Chinese employees as security investigators, who are required to have "working experience in Chinese political and legal organs or investigation companies", to assist the US officials. 

Security investigators sometimes directly ask Chinese employees for their personal social media accounts, such as WeChat, and personal email addresses. They would also conduct security clearance interviews with Chinese employees. "They are arrogant, aggressive and made people feel sick," Zhao said. 

Although the questionnaire said the information will be "protected" from "unauthorized disclosure" under the US Privacy Act, still the instructions said, "the information you provide on this form and collected in the course of an investigation may be disclosed and used without your consent by the federal agency that retains your records under the Privacy Act.''

The form lists 11 aspects of "routine uses" for information about Chinese employees. According to the form, "routine uses" means that the US Congress, the Department of Justice, the news media and other organizations can use the information in the questionnaire under certain conditions. 

Meanwhile, it also said the contents of the questionnaire can be used by intelligence agencies permitted by national security regulations, including the National Security Act of 1947, the Central Intelligence Agency Act of 1949, and Executive Order 12333.

The National Security Act of 1947 was a major strategic adjustment made by the US government in the military and intelligence system after the end of World War II, which laid the foundation of the post-war US military and intelligence system. The act emphasizes that the rest of the government coordinates national security with the various intelligence agencies, establishing the Central Intelligence Agency as an agency under the National Security Council. 

It permits disclosure of foreign intelligence acquired in criminal investigations and notice of criminal investigations of foreign intelligence sources. That is to say, the Attorney General, or the head of any other department or agency of the Federal Government with law enforcement responsibilities, shall expeditiously disclose to the Director of National Intelligence, pursuant to guidelines developed by the Attorney General in consultation with the Director, foreign intelligence acquired by an element of the Department of Justice or an element of such department or agency, as the case may be, in the course of a criminal investigation.

As for Executive Order 12333, people familiar with the matter told the Global Times that it is the primary basis for mass surveillance by US intelligence agencies. 

According to previous media reports, in the wake of the Snowden case, some non-governmental organizations filed lawsuits demanding the disclosure of the legal basis for the US government's surveillance activities. Former President Ronald Reagan signed Executive Order 12333 in 1981, authorizing the National Security Agency to monitor foreign intelligence targets. Former President George W. Bush significantly amended the order in 2008, which defines the responsibilities of a dozen of intelligence agencies, including how they cooperate and share information, authorize the agencies to expand their data collection beyond the US. The order is subject only to executive branch oversight, not court control.

US launches cyberattacks targeting China's space and aviation university. Cartoon: Vitaly Podvitski

Risk of information leakage

"These practices by the US Embassy and Consulates are typical of excessive data collection," Tang Lan, director of the cyberspace security governance of the China Institute of Contemporary International Relations, told the global Times, noting there is no doubt that Chinese employees face a great risk of personal information leakage. 

Take submitting personal WeChat accounts for example, although it may not be technically easy to access the data directly, the US Embassy and Consulates can always ask employees to show their Wechat conversation on the pretext of "cooperating with domestic judicial investigation." This is an invasion of privacy, Tang said. 

Tang stressed that the US' move is kind of "data bullying" and its excessive collection of Chinese citizens' data runs counter to its image of a "human rights defender."  

The expert said the US Embassy and Consulates shall observe China's Personal Information Protection Law which stipulates that the processing of personal information shall have a clear and reasonable purpose, and shall take the way that has the least impact on the rights and interests of the individual. The collection of personal information shall be limited to the minimum extent to achieve the purpose of processing, and excessive collection of personal information shall not be allowed.

Zhu Wei, vice director of the Communication Law Research Center at the China University of Political Science and Law, said it is necessary for embassies around the world to conduct background vetting for work purposes, but premise of the investigation should be legitimacy and necessity. 

"It goes too far to provide data to the US, even to its intelligence agencies," Zhu said. 

However, according to international practice, embassies and consulates have certain particularities. How to protect Chinese employees' rights in such situations is a topic worthy of attention, Gao Yandong at the Institute for Public Policy of Zhejiang Province said, in international law, foreign embassies and consulates in Chinese territory are not subject to the jurisdiction of Chinese laws. According to the principle of reciprocity, Chinese embassies and consulates abroad are also not subject to the jurisdiction of foreign destination laws.

"But having no jurisdiction doesn't mean we can't take measures. For example, Chinese employees can apply for diplomatic channels to communicate or send notes to the US," Gao told the Global Times.

"In addition, if a Chinese employee whose personal rights have been violated wishes to pursue the legal channel, even if the embassy enjoys diplomatic immunity, it is possible for Chinese employees to bring a lawsuit in the US to safeguard their legitimate rights and interests," Gao said.