Standardization Administration of China (CAC)

On January 2, 2018, the Standardization Administration of China (“SAC”) released the final version of the national standard on personal information protection, officially entitled GB/T 35273-2017 Information Technology – Personal Information Security Specification (GB/T 35273-2017 信息安全技术 个人信息安全规范) (hereinafter “the Standard”).  The Standard will come into effect on May 1, 2018.

As highlighted in our previous coverage of drafts of the Standard (see here and here), although it is nominally a voluntary framework, the Standard effectively sets out the best practices that will be expected by regulators auditing companies and enforcing China’s existing (but typically more generally-worded) data protection rules, most notably the 2016 Cybersecurity Law.  Drafts of the Standard — even prior its finalization — have also in some cases been the basis for non-compliance remediation plans and undertakings agreed between companies and the Cyberspace Administration of China (“CAC”) following CAC audits, as we reported here.

The Standard applies to “personal information controllers,” namely any private or public organization that has “the power to decide the purpose and method” of processing personal information.  This is seemingly modelled on European law’s “data controller” concept.

The Standard regulates the use of “personal information” by these controllers, a term largely aligned with strict conceptualizations of “personal data” under the EU’s General Data Protection Regulation (“GDPR”).  Examples of “personal information” listed in an annex to the Standard include device hardware serial codes, IP addresses, website tracking records, and unique device identifiers, among other things.  The definition of “sensitive personal information,” however, takes a different approach to the GDPR: rather than applying only to specific types of data, the Standard takes a risk-based approach, defining “sensitive” personal information as any personal information which, if lost or misused, is capable of endangering persons or property, easily harming personal reputation and mental and physical health, or leading to discriminatory treatment.  According to the Standard, this could for example include national identification card numbers, login credentials, banking and credit details, a person’s accurate location, information on a person’s real estate holdings, and information about a minor (under 14 years old).

Similar to general principles of most data protection laws, the Standard requires transparency, specificity and fairness of processing purpose, proportionality (use and retention of only the minimum information necessary to achieve the stated purpose), security, risk assessment, and the respect of individuals’ rights to control the processing of information about them.  It also requires either consent from individuals, or reliance on a limited range of exceptions set out in the Standard, for the purpose of collection and processing of personal information.

This article looks at some of these aspects in more detail, including some of their key divergences from European data protection law, including the GDPR.  (Please note that this is not an exhaustive description of the Standard, nor is it a detailed comparison with the GDPR.)
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