On June 1, 2017, China’s new Cybersecurity Law (the “Law”) finally went into effect. It is the first Chinese law that systematically lays out the regulatory requirements on data privacy and cybersecurity, subjecting to government scrutiny many activities in cyberspace that were previously unregulated or addressed in a sector-by-sector fashion.

Three weeks after the Law took effect, we examine the latest developments in this three-part post.  This post (Part 1) will clarify which key features of the Law are ready to be enforced immediately and which provisions are still awaiting clarification in the form of implementing regulations or standards.  Part 2 will elaborate on the implementing regulations and national standards that have developed in conjunction with the Law to date.  Part 3 will examine a judicial interpretation related to the interpretation of China’s Criminal Law, which also took effect on June 1 and bears on the misuse and sale of personal data.

Enforced Immediately: General Data Privacy and Cybersecurity Obligations of “Network Operators”

The Law imposes various data privacy and cybersecurity obligations on “network operators” (broadly defined to include “owners and managers of networks, as well as network service providers”).  These general obligations are expected to be enforced immediately.

Key obligations for network operators include:

Data Privacy Obligations Cybersecurity Obligations
  • Implement adequate access controls (Art. 40)
  • Provide notice and obtain consent when collecting or using personal information of Chinese citizens; do not collect personal information if it is not necessary for the services provided (Art. 41)
  • Do not disclose, tamper with, or damage citizens’ personal information that have been collected; do not provide citizens’ personal information to others without consent unless the information is sufficiently anonymized (Art. 42)
  • Delete unlawfully collected personal information and amend incorrect information (Art. 43)
  • Implement data security programs according to national standards (Art. 10)
  • Safeguard networks against disruption, damage or unauthorized access, and prevent data leakage, theft, or tampering (Art. 21)
  • Formulate incident response plans and react to security risks in a timely manner; adopt remedial measures and notify authorities in case of breach (Art. 25)
  • Provide technical support and assistance to authorities in matters relating to national security or criminal investigations (Art. 28)


Enforced Immediately: Cybersecurity Review of Network Products and Services

Providers of network products and services that may affect China’s national security will also be affected immediately.  Article 35 of the Law requires operators of Critical Information Infrastructure (“CII”) to ensure that any procured network products and services that may affect national security pass a “national security review.”

The Cyberspace Administration of China (“CAC”) has finalized the Measures on the Security Review of Network Products and Services (Trial) (“the Security Review Measures”) on May 2, 2017, which offer guidance on how mandated cybersecurity reviews will be conducted.  While the Measures have already gone into effect (on the same day as the Cybersecurity Law), they still lack clarity regarding the substantive criteria and procedures that will be applied during the review process.

Despite some ambiguity in how the review will be conducted, suppliers of network products and services may be subject to these reviews if the procurement at issue has the potential to affect China’s national security.  Thus, those suppliers should be mindful of security risks running through their supply chain.  More detail on these Security Review Measures will follow in Part 2.

Enforced Immediately: Pre-Sale Certification of Critical Network Equipment and Network Security Products

Article 23 of the Law requires certain  “Critical Network Equipment and Network Security Products” to a certification process before being sold or provided in China.  This is separate from the security review process of network products and services procured by operators of Critical Information Infrastructure (CII).  On June 9, 2017, the CAC, together with three other agencies, released the Catalog of Critical Network Equipment and Network Security Products (First Batch) that will be subject to such a certification process.  For more detail, see Covington’s post on this development here.

Awaiting Clarification: Protection of Critical Information Infrastructure (CII)

The Law imposes the most stringent cybersecurity rules on CII operators and their suppliers. For example, in addition to the general obligations applicable to all network operators, Article 34 of the Law imposes on CII operators specific security protection obligations.  These include, among other items, designating departments/personnel responsible for security management, conducting security training, backing up important systems and data, and formulating incident response plans that should be practiced regularly.  However, the Law contemplates that the specific scope these and other requirements on the protection of CII will be specified by implementing regulations.  These regulations have not yet been released.

Awaiting Clarification: Cross-Border Data Transfer

Article 37 of the Law expressly requires that operators of CII store within China “citizens’ personal information and important data” collected or generated in the course of operations within the country. If transfers of data offshore are necessary for operational reasons, a security assessment must be conducted by designated agencies, unless otherwise specified by laws and regulations.

The CAC has issued and received public comment on a draft implementing regulation for this requirement—the Measures on Security Assessment of Cross-border Data Transfer of Personal Information and Important Data (the draft “Transfer Measures”). Importantly, the draft Transfer Measures extend certain cross-border transfer obligations to “network operators,” a much broader term than “CII operators.”  These obligations include conducting a security assessment before transferring personal information and important data offshore.

The CAC has delayed the issuance of the final version of the Transfer Measures for unknown reasons. In any event, in the latest version of the Transfer Measures, the CAC has given “network operators” a grace period of 18 months to comply with the requirements for cross-border data transfers. All network operators’ cross-border data transfers must be in compliance with the Measures starting from December 31, 2018.  More detail on the Transfer Measures will follow in Part 2.

Click here to proceed to Part 2 of this post.

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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.