South Korean President Moon Jae-in, bottom, speaks at the National Assembly in Seoul, South Korea, October 28, 2020.  © 2020 Jeon Heon-kyun/Pool Photo via AP

(Seoul) – The South Korean government should revise recent amendments to the National Intelligence Service Act that could be abused by the country’s intelligence agency, Human Rights Watch said today. The amendments, rather than constraining the authority of the National Intelligence Service (NIS), contains broad and vaguely defined language and authorizes the agency to continue collecting information under the outdated and abusive National Security Law.

South Korea’s National Assembly passed the amendments on December 13, 2020, after a 61-hour filibuster, and President Moon Jae-in signed them on December 15. The amendments were offered in response to concerns that the National Intelligence Service had abused its authority and committed human rights violations during criminal investigations, including “anti-communist” investigations under the National Security Law.

“The recent amendments, instead of ending violations by the South Korean intelligence service, will perpetuate the risk of abuse,” said Phil Robertson, deputy Asia director. “The National Assembly needs to rescind the National Security Law, which violates basic rights to freedom of speech and association.”

The National Security Law – adopted in 1948 as a temporary measure to counter the military threat posed by North Korea – criminalizes positive comments about North Korea or the dissemination of North Korean propaganda. The mere possession of books that contain views similar to those held by the North Korean state can lead to a prison term of up to seven years.

The law also imposes severe criminal penalties on anyone who joins or induces others to join an “anti-government organization.” That term is not clearly defined in the law, and has been used to apply to everything from North Korea itself to organizations that simply express ideological views at odds with those of the South Korean government. The law further says that anyone who “constitutes or joins an organization aimed at” propagating, inciting, praising, or acting in concert with an anti-government organization is committing a criminal offense. 

While the amended law strips the NIS of the authority to conduct criminal investigations into violations of the National Security Law and other offenses such as insurrection and foreign aggression, those changes do not come into effect until January 1, 2024. Even after that date, the agency will retain the authority to “collect, compile and distribute” information on those crimes, creating a serious risk that the NIS will engage in surveillance of those suspected of violating the National Security Law, including with speech or activity protected under international human rights law, Human Rights Watch said.

As amended, the National Intelligence Service Act also authorizes the NIS to collect information on “counter-intelligence,” broadly defined to include “counter-intelligence against leaking of industrial and business information, disturbances linked to overseas economic order, and violations upon the defense industry,” which raises the risk of continued domestic surveillance. The lack of clarity in the terms also raises concern that the law could be interpreted to include surveillance of South Korean citizens and nongovernmental organizations connected with foreigners involved in international financial transactions.

The new provisions impose some restraints on the NIS by prohibiting illegal wiretapping and the use of location tracking, prohibiting the use of information collected by the agency for purposes other than that for which it was collected, and making clear that the agency should be politically neutral. However, those positive steps are offset by the broad definitions of the agency’s scope of work and the continued application of the National Security Law, Human Rights Watch said.

The South Korean government should abolish the National Security Law and, pending repeal, revise the National Intelligence Service Act to exclude violations of the National Security Law from the matters subject to NIS investigation. The government should also narrow or better define the offenses subject to surveillance by the NIS, and limit the scope of its work, linking it more closely to countering serious external security threats to limit the possibility for abuse.

“The intelligence act amendments were touted as a way to end NIS abuses, but instead they leave open the door to continued abuse by allowing the agency to conduct criminal investigations under the National Security Law and monitor them indefinitely,” Robertson said. “The South Korean government should amend the National Intelligence Service Act to genuinely bring an end to NIS abuses.”