South Korean lawmakers have proposed nine bills in recent weeks to update the country’s espionage laws, following a series of high-profile cases that have exposed major loopholes.

However, some of the proposed changes risk criminalizing legitimate activities and infringing on business and individual freedoms, underscoring the difficulty of addressing evolving threats in a democratic society.

The proposed amendments come on the heels of the FBI’s indictment of Sue Mi Terry, a Korean American scholar and former CIA officer who allegedly collaborated with South Korean intelligence officials to influence U.S. policies without registering as a foreign agent.

In another recent case, a South Korean public servant has been charged with leaking a list of South Korean agents to a Chinese national, with the information allegedly reaching North Korea.

These cases underscore two critical aspects of modern espionage. First, the line between policy advocacy and espionage can blur without clear legal definitions. Second, information can quickly leak to foreign actors not necessarily considered enemies, even allies.

Sue Mi Terry and then-South Korean foreign minister Park Jin attend a screening event of the documentary film “Beyond Utopia,” Nov. 6, 2023 | Image: ROK Ministry of Foreign Affairs

BROADENING DEFINITIONS

The nine proposed bills, four by the opposition Democratic Party (DP) and five by the ruling People Power Party (PPP), are all premised on the idea that South Korea’s espionage laws are outdated for the realities of contemporary intelligence operations. 

Article 98 of the Criminal Act, which defines the current espionage law, was written and enacted in 1953 and never amended since. It states: 

(1) Anyone who engages in espionage for an enemy country or aids an enemy country’s espionage shall be punished by death, life imprisonment, or imprisonment for not less than seven years; (2) The same punishment applies to anyone who discloses military secrets to an enemy country.

The law bases the definition of enemy and quasi-enemy states under wartime considerations. It narrowly defines espionage as actions benefiting an “enemy country,” which in practice has applied almost exclusively to North Korea.

The proposed amendments seek to broaden this definition to include actions benefiting any foreign country, not just designated enemy states. This change acknowledges that even friendly nations may engage in intelligence gathering or influence operations that can be detrimental to South Korea’s interests.

For instance, two of the PPP’s proposed bills suggest adding a new clause to Article 98 to impose a minimum five-year prison sentence for espionage activities conducted in collaboration with any foreign country, national or organization.

Similarly, a DP bill proposes to change the term “enemy” to “foreign” in the espionage law, thereby applying to all foreign countries.

Moreover, several bills classify the unauthorized disclosure of “core national technologies” or defense industry secrets as acts of espionage, reflecting growing concerns about economic and technological competition in light of leaks in recent years.

South Korea’s Supreme Court | Image: Supreme Court

PROBLEMATIC PROPOSALS

While lawmakers largely agree that updating South Korea’s espionage laws is necessary, several proposed bills introduce broad definitions and severe penalties that could have unintended consequences, such as discouraging dialogue between the government and corporate sector.

A major concern is the expansion of what constitutes espionage. Shortly after Terry’s indictment, DP lawmakers, including former NIS deputy director Park Sun-won, proposed a bill that includes “actions to influence policies and diplomatic relations” under espionage. 

This broad language could criminalize legitimate advocacy or diplomatic activity and apply indiscriminate penalties to operations that don’t constitute direct espionage.

While Park’s proposal mirrors the U.S. Foreign Agents Registration Act (FARA), it does so without providing individuals with the ability to register as foreign agents.

Another proposal by DP lawmaker Kang Yu-jung would classify the “fabrication, distortion and dissemination of false information” that aids a foreign country as espionage. Although aimed at combating disinformation, the proposal’s vague wording could allow for its misuse to suppress dissent or limit free speech.

Some bills avoid differentiating between actions benefiting hostile states and those aiding allies, and this lack of nuance could lead to disproportionate punishments and strain diplomatic relations. 

However, designating hostile states is challenging. For instance, a South Korean court would likely hesitate to label Russia or China as quasi-enemies or hostile states, as doing so would be detrimental to the government’s ability to conduct diplomacy. 

Some of the proposals also apply broad definitions to “state secrets.” A PPP-proposed bill aims to redefine state secrets as “facts, objects, facilities, or knowledge permitted to be known only by a limited number of people.” If applied, this definition would encompass a vast array of information.

A South Korean man walking on the street holding documents | Image: Korea Pro

POTENTIAL FALLOUT

The proposed amendments to South Korea’s espionage laws could significantly impact businesses, especially those in industries tied to national interests or dealing with sensitive technologies. The broad language in some bills, while aimed at protecting national security and economic interests, could create uncertainty and legal risks for companies.

Several bills explicitly include industrial espionage and leaking information about core national technologies under espionage offenses. The DP and PPP argue that current laws are inadequate, with offenses and subjects too narrowly defined.

However, the bills could have far-reaching consequences. For instance, many state-led industries in South Korea rely on support from the government. These industries include shipbuilding, heavy machinery, aviation, space and defense. The proposed changes could criminalize certain types of information sharing that these industries currently consider standard business practices.

One of the PPP bills frames industrial technology as a crucial component of national security. It also provides a vague definition of “non-military state secrets,” characterizing them as information that is “more advantageous for a limited number of individuals to possess.” This broad definition could apply to various businesses and political intelligence, including market strategies and innovations.

The proposed changes could significantly impact:

1. Companies engaged in international partnerships or joint ventures;
2. Businesses involved in technology transfer or licensing agreements;
3. Firms participating in government-funded or affiliated research and development projects; and
4. Companies in the defense, semiconductor, or any industry that the administration considers part of national security.

If these changes pass, companies may become overly cautious about sharing or asking for information and engaging in cross-border partnerships, chilling business activities.

The judiciary committee will review the bills in the coming weeks, and a careful review of new espionage definitions will be crucial as lawmakers debate the proposals, which could be the first major law to pass with bipartisan support under the 22nd National Assembly.

Lawmakers will likely want to look to similar espionage laws in the U.S., Germany, France and other countries for guidance as they weigh how to define spying and the severity of punishments.

The rare cross-party consensus on the issue underscores the urgency of updating South Korea’s espionage laws. But lawmakers now face the challenge of creating a legal framework that doesn’t also stifle the economic growth and democratic freedoms it aims to protect.

Edited by John Lee