An amendment to Korea's espionage law (Article 98 of the Criminal Act) that expands the scope of punishment from "enemy states" to "foreign countries" passed the National Assembly's Legislation and Judiciary Committee on the 3rd of this month. This marks the first potential revision to the law since its enactment in 1953.
Many countries beyond North Korea are targeting Korea's advanced technologies. Competitors and even allies are working to illegally extract cutting-edge technologies. However, current provisions only apply to those "who spy for an enemy state, assist enemy spies, or leak military secrets to an enemy state." The Supreme Court has recognized only North Korea as an enemy state. Consequently, illegal information theft by countries or foreign nationals other than North Korea can only be punished under "general enemy assistance" (Article 99 of the Criminal Act), not espionage.
To address this problem, the espionage law's scope must change from "enemy states" to "foreign countries." The definition of espionage activities also needs to be specified to include "acts of detecting, collecting, leaking, transmitting, or mediating state secrets under directives, instigation, or other forms of communication."
Major countries including the United States and China define their espionage laws to cover "foreign countries," a broader concept than "enemy states." U.S. espionage law (Title 18, Chapter 37 of the U.S. Code) designates foreign governments as targets and includes intelligence activities that harm national interests beyond military secrets under "espionage for foreign nations." The prosecution of Korea expert Sue Mi Terry under the Foreign Agents Registration Act last year is a representative example. The United States punishes allied or friendly nations without exception for collecting or leaking American secrets.
China also revised its counter-espionage law on July 1, 2023, broadly interpreting national security. The definition of espionage expanded from leaking state secrets to reconnaissance, acquisition, purchase, and illegal provision of documents, data, and information related to national security and interests.
Bipartisan consensus exists on strengthening the scope and content of espionage crimes as the United States and China have done. However, concerns have emerged about the amendment's content. The core controversy is the concentration of authority in national intelligence agencies. Without clearly defining national secret information, surveillance causing human rights violations could become frequent and be exploited for domestic politics.
To address these concerns, minimum substantive and procedural requirements must be specified. German criminal law defines state secrets as "facts, objects, or knowledge that must be kept secret from other nations and accessible only to a limited group of people to prevent significant disadvantages to the Federal Republic of Germany's external security." Japan's Act on the Protection of Specially Designated Secrets, enacted in 2013, requires reporting to the National Diet on the designation and declassification of specific secrets and the implementation of eligibility assessments to prevent arbitrary operation by administrative agencies.
Today, global competition over economic security intensifies daily. As defense industry exports increase, hacking attempts against military bases and military-information communication infrastructure are rapidly growing. To effectively block harm to national interests, the espionage law amendment must pass the National Assembly plenary session within this year. We must not miss the golden window worrying about side effects.