The Company is all over this important regulatory...

The Company is all over this important regulatory milestone.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Translation: Outbound Data Transfer Security Assessment Measures (Draft for Comment) – Oct. 2021

CAC releases the latest draft rules on cross-border data transfers

Published

October 29, 2021

By:

Rogier Creemers

Samm Sacks

Graham Webster

Lorand Laskai

INTRODUCTION

The Cyberspace Administration of China on October 29, 2021, published draft rules that outline a government security assessment process for the transfer abroad of a wide range of data. The draft "Outbound Data Transfer Security Assessment Measures" are open for public comment until November 28.

Interested parties have been awaiting clarification on rules for cross-border data transfer out of China since the Cybersecurity Law was finalized in 2016 and went into effect June 1, 2017. The most recent earlier draft rules on the matter, released in June 2019, addressed only "personal information." (See DigiChina's translation and analysis on that draft.) The present draft Measures reference the Cybersecurity Law, the Data Security Law, and the Personal Information Protection Law (effective November 1, 2021), and they appear designed to implement their provisions on cross-border data transfer.

This translation is by Rogier Creemers and Samm Sacks. It was edited by Graham Webster and Lorand Laskai.

TRANSLATION

Outbound Data Transfer Security Assessment Measures (Draft for Comment)

Cyberspace Administration of China

October 29, 2021

Article 1: In order to standardize outbound data transfer activities, protect personal information rights and interests, safeguard national security and the social public interest, and promote the secure and free cross-border flow of data, and on the basis of the “Cybersecurity Law of the People’s Republic of China,” the “Data Security Law of the People’s Republic of China,” the “Personal Information Protection Law of the People’s Republic of China,” and other such laws and regulations, these Measures are formulated.

Article 2: Data handlers that provide abroad important data that was collected or produced through operations within the (mainland) territory of the People’s Republic of China, or personal information where a security assessment shall be conducted according to the law, shall conduct a security assessment according to the provisions of these Measures; where laws or administrative regulations provide otherwise, those provisions are to be followed.

Article 3: The security assessment of outbound data transfer is to persist in integrating prior assessment and continuous supervision, and integrating risk self-assessment and security assessment; prevent outbound data transfer security risks; and ensure the lawful, orderly, and free flow of data.

Article 4: Data handlers providing data abroad shall, in any of the following circumstances, apply for outbound data transfer security assessment with the State cybersecurity and informatization department through their local provincial-level cybersecurity and informatization department.

1. Personal information and important data collected and produced by critical information infrastructure operators;
2. Where the data transferred abroad contains important data;
3. Personal information handlers handling the personal information of over 1 million people providing personal information abroad;
4. Cumulative provision abroad of the personal information of more than 100,000 people or the sensitive personal information of more than 10,000 people;
5. Other circumstances where the State cybersecurity and informatization department provides data export security assessment must be applied for.

Article 5: Before data handlers provide data abroad, they shall first conduct an outbound data transfer risk self-assessment, focusing on assessing the following matters:

1. The legality, propriety, and necessity of the purpose, scope, method, etc., of the outbound data transfer and data handling by the foreign receiving party;
2. The quantity, scope, categories, and degree of sensitivity of the data transferred abroad; the risks that the outbound data transfer may engender to national security, the public interest, and the lawful rights and interests of individuals and organizations;
3. Whether or not risks such as data leaks, distortion, etc., can be prevented through data handlers’ management and technical measures and capabilities during the data transfer phase;
4. The responsibilities and duties undertaken and borne by the foreign receiving party, as well as whether or not the security of data transferred abroad can be ensured through management and technical measures and capabilities, etc., to fulfill their responsibilities and duties;
5. The risk of leaks, distortion, alteration, abuse, etc., after data is transferred abroad and retransferred, and whether or not the channels for individuals to uphold personal information rights and interests are open, etc.;
6. Whether or not the data outbound transfer–related contract concluded with the foreign receiving party fully stipulates data security protection responsibilities and duties.

Article 6: To apply for outbound data transfer security assessment, the following materials shall be submitted:

1. An application letter;
2. An outbound data transfer risk self-assessment report;
3. The contract intended to be concluded between the data handler and the foreign receiving party or other documentation with legal effect (hereafter jointly named contract);
4. Other materials necessary for security assessment work.

Article 7: The State cybersecurity and informatization department is to, within seven working days from the date of receiving the application materials, determine whether or not the assessment is accepted, and return the acceptance outcome in written notice form.

Article 8: Outbound data transfer security assessment focuses on assessing the risks that outbound data transfer activities may bring to national security, the public interest, and the lawful rights and interests of individuals and organizations, and mainly includes the following matters:

1. The legality, propriety, and necessity of the purpose, scope, method, etc., of outbound data transfer;
2. The effects on the security of the data transferred abroad of the data security protection policies, laws, and regulations, and the cybersecurity environment of the country or region where the foreign receiving party resides; whether or not the foreign receiving party’s data protection level reach the requirements of the laws, administrative regulations, and mandatory national standards of the People’s Republic of China;
3. The quantity, scope, categories, and degree of sensitivity of the data transferred abroad; and the risk of leaks, distortion, loss, destruction, transfer, illegal acquisition, illegal use, etc., during or after outbound transfer;
4. Whether or not data security and personal information rights and interests are fully and effectively ensured;
5. Whether or not the contract concluded between the data handler and the foreign receiving party fully stipulates data security protection responsibilities and duties;
6. The degree of compliance with Chinese laws, administrative regulations, and departmental rules;
7. Other matters that the State cybersecurity and informatization department determines should be assessed.

Article 9: The contract concluded between data handles and the foreign receiving party is to fully stipulate data security protection responsibilities and duties, which shall include but are not limited to the following content:

1. The purpose (目的), method, and data scope of data outbound transfer, and the purpose (用途), method, etc., of the foreign receiving party's data handling;
2. The location and time limit of data storage abroad, as well as measures to handle the data transferred abroad when the storage time limit is reached, the agreed purpose is completed, or the contract is terminated;
3. Restraining clauses restricting the foreign receiving party from retransferring the exported data to other organizations or individuals;
4. The security measures that shall be adopted when a substantive change occurs in the foreign receiving party's actual control powers or scope of operations, or when changes in the legal environment of their local country or region lead to difficulty to ensure data security;
5. The liability for violating or breaching contractual data security protection duties and enforceable dispute resolution clauses with actual restraining force;
6. When a data leak or other risk occurs, appropriate launching of emergency response measures, and ensuring individuals have open channels to uphold personal information rights and interests.

Article 10: After the State cybersecurity and informatization department accepts the application, it is to organize the competent sectoral departments, relevant State Council departments, provincial-level cybersecurity and informatization departments, and specialized agencies, etc., to conduct the security assessment.

For the outbound transfer of important data, the State cybersecurity and informatization department shall seek opinions from relevant industry authorities.

Article 11: The State cybersecurity and informatization department is to complete the outbound data transfer security assessment within 45 working days from the date of issuance of the written acceptance notice; if the situation is complicated or supplementary materials are needed, this may be appropriately extended, but generally is not to exceed 60 working days.

The results of the assessment are to be notified to the data handler in writing.

Article 12: Outbound data transfer assessment results are effective for two years. During their period of validity, if one of the following circumstances occurs, data handlers shall re-apply for assessment:

1. The purpose, method, scope, or type of data provided abroad, or the purpose and method of data handling by foreign receiving party change, or the time limit for storage abroad of personal information or important data is extended;
2. Circumstances that may affect the security of data transferred abroad, such as changes in the legal environment of the country or region where the foreign recipient party is located, changes to the actual control powers of the data handler or the foreign receiving party, changes to the contract between the data handler and the foreign receiving party, etc.;
3. Other circumstances that may affect the security of data transferred abroad.

If the validity period expires and it is necessary to continue the original outbound data transfer activities, data handlers shall re-apply for assessment 60 working days before the validity period expires.

Those who fail to re-apply for assessment in accordance with the provisions of this Article shall cease outbound data transfer activities.

Article 13: Data handlers shall submit assessment materials according to the provisions of these Measures. Where materials are incomplete or do not meet requirements, they shall supplement or rectify them in a timely fashion. Where they refuse to supplement or rectify them, the State cybersecurity and informatization department may terminate security assessment. Data handlers are responsible for the accuracy of the submitted materials; where they wilfully submit false materials, they are to be dealt with as not having passed assessment.

Article 14: Relevant agencies and personnel participating in security assessment work shall preserve the secrecy of State secrets, personal privacy, personal information, commercial secrets, confidential commercial information, and other such data they learn of while fulfilling their responsibilities; they must not leak or illegally provide it to others.

Article 15: Where any organization or individual discovers that data handlers are providing data abroad without conducting assessment according to the provisions of these Measures, they may file a complaint or report with the provincial-level or higher cybersecurity and informatization department.

Article 16: If the State cybersecurity and informatization department determines that, in the actual data handling process, outbound data transfer activities that have passed assessment no longer meet outbound data transfer security management requirements, it shall revoke the assessment result and notify the data handler in writing, and the data handler shall terminate the outbound data transfer activity. If it is necessary to continue to carry out outbound data transfer activities, the data handler shall make corrections in accordance with requirements, and re-apply for assessment after the corrections are complete.

Article 17: Violations of the provisions of these Measures is to be handled in accordance with laws and administrative regulations such as the Cybersecurity Law of the People’s Republic of China, the Data Security Law of the People’s Republic of China, the Personal Information Protection Law of the People’s Republic of China; where a crime is constituted, criminal responsibility is to be investigated according to the law.

Article 18: These Measures are implemented beginning [month] [day], [year].