The institutional logic of security assessment of cross-border data transfers in China: context and progress
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The institutional logic of security assessment of cross-border data transfers in China: context and progress Yanqing Hong
Received: 12 June 2020 / Accepted: 20 July 2020 / Published online: 7 October 2020 © Springer Fachmedien Wiesbaden GmbH 2020
Abstract “Data has become a national basic strategic resource.” This is the common understanding of the two basic official documents that are guiding China’s economic and social development so far: The Action Plan to Promote the Development of Big Data and the 13th Five-Year Plan. Therefore, China’s government must face as a top priority how to effectively protect data, a valuable national basic strategic resource. With the official start of the implementation of the Cybersecurity Law on 1 June 2017, the basic framework of China’s cybersecurity work and the work priorities for cybersecurity have been clearly defined. The Cybersecurity Law has a threetiered design for data: protecting data’s confidentiality, integrity, and availability; personal information protection; and data protection at the national level. The CrossBorder Data Flows Security Assessment, as an important part of the data protection designed at the national level, is a key step in establishing a comprehensive data resource protection system in China. However, the comprehensiveness of the existing institutional design of the Cybersecurity Law is not yet commensurate with the importance of data, a basic strategic resource designated by the Chinese state. The Cybersecurity Law is off to a good start, but obviously we also need to develop additional data security management measures and other measures to make data protection really catch up with the pace of development of big data. Keywords Cybersecurity Law of China · Three-tier design on data security · Data as a strategic resource · Porportionality · Aligned with international practices
Y. Hong () Law School of Beijing Institute of Technology, 5 Zhongguancun St, 100811 Beijing, Haidian District, China E-Mail: [email protected]; [email protected]
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Int. Cybersecur. Law Rev. (2020) 1:93–102
1 Introduction “Data has become a national basic strategic resource.” This is the common understanding of the two basic official documents that are guiding China’s economic and social development: The Action Plan to Promote the Development of Big Data [1] and the 13th Five-Year Plan [2]. The Action Plan to Promote the Development of Big Data also further states that “big data is increasingly affecting global production, circulation, distribution, consumption activities, and economic operating mechanisms, social lifestyles, and national governance capacity” [3]. In fact, in the regulations and documents issued by the State Council and various ministries of China, only data (and big data) and archive files are eligible to be called “basic strategic resources.” The label of “strategic resources,” however, has been attached to land, grasslands, rare earths, oil, natural gas, food, water, forests, minerals, coal, and so on. Literally, the addition of the term
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