The Cyberspace Administration of China (CAC) recently released a new draft of proposed measures on the security assessment for the export of personal information outside of China – two years after the previous draft was released.
The 2019 version of the draft Measures on Security Assessment of Personal Information Export (2019 Draft Measures) marks a fundamental change in the proposed regulatory regime on exporting personal information from that proposed in the 2017 draft. If enacted, the 2019 Draft Measures will have a significant impact on the way that the export of personal information is regulated, as set out below.
The 2019 Draft Measures regulate the export of personal information, with the export of important data to be regulated by a separate regime. Although the 2019 Draft Measures do not expressively require all personal information to be stored in China (as was proposed in the very first draft in 2017), they achieve a similar effect given that it is not permitted for personal information to be exported without completing a mandatory government evaluation. The CAC is seeking to replace the regime primarily based on the self-assessment in the 2017 Draft Measures with one based on mandatory governmental assessment and pre-approval, as well as inserting certain mandatory items into the so-called “Export Contract” as a tool to impose data protection obligations on overseas receivers of personal information.
The changes, if enacted, will dramatically increase the administrative burden for the government as well as the compliance workload and cost for domestic and overseas companies that collect personal information from China. In addition, there will be judicial and practical challenges to enforcing the Export Contract without a clear opinion being given by the judiciary. The applicability of the 2019 Draft Measures to overseas personal information collectors and the role of representatives also remain to be clarified by the CAC. We hope the next draft of the regulations will address these issues, which will be vital for their successful implementation.
For further information on the background and highlights of the key provisions in the 2019 Draft Measures, along with our observations on the 2019 Draft Measures, please click here