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A draft law that would require foreign nongovernmental organizations to register their activities with police authorities in China has American universities worried about a chilling effect on educational exchanges of all types.

The draft law defines foreign NGOs broadly and is sweeping in its scope, seemingly applying not only to universities that have physical locations in China but also to any institution that so much as sends a single student or professor there. If an American university were to conduct an international research conference in China, that would seem to require registration under the law. So would sending a faculty member there to interview applicants for a graduate program. Or sending a professor to give a lecture or take part in a joint research project. Or organizing a networking event for alumni in China. Or sending a student singing group to participate in a competition there.

Those are all examples of types of potentially affected activities mentioned in joint comments submitted to the Chinese government by 12 U.S. universities, including two Ivies (Columbia and Cornell) and other institutions with long-standing ties in China (among them Duke, Johns Hopkins and New York Universities, and the University of Michigan).

“We are very concerned that the requirements of the draft law may have a dampening effect on both existing and future initiatives,” the universities wrote in their comments. “Nonmainland [or foreign] universities, especially smaller nonmainland universities and nonmainland universities with more limited programs in China, may decide that the complexity of the registration process, the ongoing operational requirements, and the related financial and administrative burdens necessitate modifying, temporarily suspending or even closing their programs.”

Under the draft law, it appears that foreign universities with physical locations in mainland China would have to register their offices with public security agencies -- the police -- a process that requires them to first obtain a Chinese partner, or sponsor (a “professional supervisory unit,” in the legislation’s language). Foreign universities with representative offices in China would have to submit annual reports outlining their planned activities for the coming year and also submit to financial reporting requirements.

Further, foreign universities without a physical office in China would have to obtain a Chinese sponsor and apply for permits for temporary activities. These could include the kinds of ad hoc activities (a single faculty exchange, a student group trip) described above.

“The ability to respond quickly or do things more informally even if you have no office in China will now have many layers of bureaucratic oversight,” said Elizabeth M. Lynch, a lawyer and editor of the China Law and Policy blog, for which she has written about the draft law.

Many have noted that it seems likely the Chinese government will selectively enforce the law if it's passed in its current form -- and that it would be unlikely to go after foreign universities for run-of-the-mill academic exchanges. But Lynch observed that the prospect of selective enforcement would likely provide little comfort to a university counsel’s office. Penalties outlined in the draft law include detention of personnel and fines, as well as the cancellation of a foreign entity’s registration certificate or temporary activity permit.

“The issue is that you’re always serving at the whim of the public security bureau,” said Lynch. She noted, for example, that a partnership between a Chinese university and a foreign medical school to address mental health issues in China may get public security officials’ approval one year and not the next. “Maybe the public security bureau feels that’s a safe issue now and will give the OK -- but next year if your group has been successful in advocating for more rights for people with mental illness, that might be more politically sensitive and the public security bureau might shut it down,” Lynch said.

The question for universities even if they are able to gain registration is “what will the Chinese authorities allow you to do?” said Anthony J. Spires, an associate professor of sociology and associate director of the Center for Civil Society Studies at the Chinese University of Hong Kong.

“Every activity will have to receive approval not only from the supervisory agency but also from the public security bureau. That surely will make people think twice about developing new projects.”

Scholars at NYU have also drawn attention to another aspect of the law -- a provision restricting foreign NGOs from subverting state power, undermining ethnic harmony or engaging in separatism, or disseminating information deemed to endanger state security or damage the national interest. In an op-ed in The New York Times, Ira Belkin and Jerome A. Cohen, directors of NYU’s U.S.-Asia Law Institute, argue that the draft law would extend these prohibitions outside China’s borders. “In other words, if a student group on an American campus protests against Chinese government treatment of Tibetans, the university could be barred from activities in China, and its representatives in China could be detained and prosecuted,” they write.

The draft law also includes restrictions on fund-raising by foreign NGOs. The good news from the point of view of foreign universities is that it does include an exemption for joint Chinese-foreign academic programs -- of which there are many -- or cooperatively run schools like NYU's in Shanghai or Duke's in Kunshan. And it remains unclear whether foreign public universities would be considered "nongovernmental" organizations and therefore fall under the law’s purview.

The timing for passage or possible revision of the draft law -- the second and current draft was released in the spring as part of a package of national security-related laws -- is also not clear.

“I don’t think that they are really trying with this law to exercise strict control over what professors from American universities have been doing for years, which is go to China and do research, or what universities in other respects have been doing -- conducting exchanges or sending basketball teams over or things like that. I don’t think that’s what’s concerning them. But they have this view of NGOs as institutions that are out to foment color revolutions in China,” said Donald C. Clarke, the David Weaver Research Professor of Law, and a specialist in Chinese law, at George Washington University. (“Color revolutions” refers to the various popular uprisings against former Soviet states in the early 2000s.)

Clarke thinks the NGOs China is worried about are groups like George Soros’s Open Society Foundations and the National Endowment for Democracy (both of which recently found themselves on a proposed list of banned NGOs in Russia). Still, while universities might not be the primary intended target for the law, Clarke thinks it’s unlikely the legislation will be revised in a way that excludes them.

“To make a carve-out for educational institutions would, I think, take away more discretion from the security authorities than they are willing to lose,” he said. “When the choice is to give public security officials too much power or too little power, we know which way China is going to go.”

Xinning Shirley Liu, who as president of the Florida-based XL Law and Consulting advises universities on their activities in China, said U.S. institutions need to be aware that “this is potentially coming their way and it could restrict their activities there.”

“It’s tied to the police, and the police have broad, sweeping powers in China -- you don’t want people not being aware,” she said.

At the same time, Liu thinks it’s not time to panic yet. “Let’s see what happens,” she said. “It could potentially have some serious implications, but my hope is that I don’t think the intent of the Chinese government was to turn away from all the benefits that collaborations and academic exchanges would offer to China’s society.”

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