On May 11, 2020, the State Cryptography Administration (“SCA”) and the State Administration for Market Regulation jointly issued the Commercial Encryption Product Certification Catalogue (First Batch) (“Product Catalogue”) and the Commercial Encryption Product Certification Measures (“Certification Measures”) (the announcement is available here), taking effect immediately.

 

Prior to the adoption of the Encryption Law (see our post on the Encryption Law here), manufacturers of commercial encryption products were required to apply to the SCA for the “Commercial Encryption Products Type and Model Certificate.”  The Encryption Law removed this approval requirement by establishing a voluntary certification scheme, which encourages manufacturers to voluntarily apply to qualified agencies for the testing and certification of their commercial encryption products.  The release of the Product Catalogue and the Certification Measures marks a critical step forward in implementing such a voluntary certification scheme under the Encryption Law.

 

Going forward, the manufacturers of products listed on the Product Catalogue will no longer be subject to mandatory approval requirements before launching their products in the market.  The voluntary certification, which will provide a marking, only serves as assurance to customers that their commercial encryption products conform with Chinese encryption standards.  Note that the certification will be based on the standards approved by SCA, such as those using China’s ZUC encryption algorithm.

 

With respect to imported encryption products, the Encryption Law establishes an import licensing framework for commercial encryption that “may impact national security or the public interest” and “provides an encryption protection function,” which specifically carves out the import of “products for consumption by the general population.”  It is unclear whether the commercial encryption products included in the Product Catalogue may fall within the scope of “products for consumption by the general population” and therefore can be freely imported into China.

 

Finally, the Certification Measures set out the process where manufacturers of commercial encryption products can apply for certification (“Certification Clients”) with the qualified agency conducting the certification (“Certification Agency”):

 

As a general matter, the certification remains valid for a five-year period.  If (1) the certified product or entity producing said product undergoes any changes or (2) the Certification Client wishes to expand the range of products covered by certification, the Certification Client shall notify the Certification Agency of the changes, so that the Certification Agency may conduct a further review.

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Photo of Yan Luo Yan Luo

Yan Luo advises clients on a broad range of regulatory matters in connection with data privacy and cybersecurity, antitrust and competition, as well as international trade laws in the United States, EU, and China.

Yan has significant experience assisting multinational companies navigating the…

Yan Luo advises clients on a broad range of regulatory matters in connection with data privacy and cybersecurity, antitrust and competition, as well as international trade laws in the United States, EU, and China.

Yan has significant experience assisting multinational companies navigating the rapidly-evolving Chinese cybersecurity and data privacy rules. Her work includes high-stakes compliance advice on strategic issues such as data localization and cross border data transfer, as well as data protection advice in the context of strategic transactions. She also advises leading Chinese technology companies on global data governance issues and on compliance matters in major jurisdictions such as the European Union and the United States.

Yan regularly contributes to the development of data privacy and cybersecurity rules and standards in China. She chairs Covington’s membership in two working groups of China’s National Information Security Standardization Technical Committee (“TC260”), and serves as an expert in China’s standard-setting group for Artificial Intelligence and Ethics.