China publishes Draft Measures on Security Assessment of Cross-border Data Transfer for public consultation
On October 29th, 2021, the Cyberspace Administration of China (CAC) announced a public consultation on its “Draft Measures on Security Assessment of Cross-border Data Transfer”. This is the CAC’s third legislative attempt to build a cross-border data transfer mechanism in China, and it came only days before the effective date of the Personal Information Protection Law (PIPL) on November 1st, 2021.
The CAC said its proposed data transfer assessment aims to comply with China’s PIPL and Data Security Law, while specifically focusing on efforts to “regulate data export activities, protect the rights and interests of personal information, safeguard national security and social public interests, and promote the safe and free flow of data across borders”. If they were to be made final, the Draft Measures would apply to cross-border transfers of personal information and “important data” collected and generated in China under certain circumstances.
Data controllers, or data handlers according to the PIPL, would be subject to mandatory security assessments by the CAC in the following circumstances:
- transfer of personal information and important data collected and generated by critical information infrastructure operators as defined under China’s Cybersecurity Law;
- transfer of important data;
- transfer of personal information by data handlers who process over 1 million individuals’ personal information;
- cumulatively transferring personal information of more than 100,000 individuals or “sensitive” personal information of more than 10,000 individuals; or
- other conditions to be specified by the CAC.
According to the Draft Measures, data handlers that require a mandatory security assessment would need to submit certain materials in connection with it, which include an application form, the data handler’s self-security assessment, and the relevant data transfer agreement.
Upon receiving the data handler’s application, the CAC would confirm whether it will accept the application within seven business days. The CAC would have 45 business days to complete the assessment after issuing the notice of acceptance. This period could be extended in complex cases or where the CAC requires supplementary documents, however according to the Draft Measures the timeline should not exceed 60 business days.
In evaluating a data handler’s mandatory security assessment, the CAC would aim to focus on:
- the legality, propriety and necessity of the cross-border transfer;
- the data protection laws and regulations of the data recipient’s jurisdiction, the security of the data being transferred, and whether the protections provided by the data recipient satisfy Chinese laws and regulations and mandatory national standards;
- the volume, scope, type and sensitivity of the data being transferred and the risk of a leak, damage, corruption, loss and misuse;
- whether the data transfer agreement adequately allocates responsibilities for data protection;
- compliance with Chinese laws, administrative regulations and departmental regulations; and
- other matters that are deemed necessary by the CAC.
The CAC’s mandatory security assessment result would be effective for two years, after which a new assessment is necessary. Under circumstances, a re-evaluation would have to take place, e.g. in cases of changes to the purpose, means, scope and type of the cross-border transfer or processing of personal information and/or important data by the data recipient, an extension of the retention period for the personal information and/or important data and other circumstances that might affect the security of transferred data.
The public consultation period extends until November 28th, 2021, after which the CAC will review the public comments and recommendations.