This version of the Cybersecurity Review Measures was published Dec. 28, 2021, and takes effect Feb. 15, 2022, replacing the that took effect June 1, 2020. Most of the changes are captured in DigiChina's comparison of the 2020 version with a draft of this revision that was published in July 2021. The translated text below was produced by Rogier Creemers based on the previous DigiChina translations. The introductory text below is by Graham Webster.
China's Cybersecurity Review system gained international attention in 2021 when the Cyberspace Administration of China announced it had initiated a review under the measures of the ride-hailing giant Didi Chuxing, just after the company had completed an initial public offering in a U.S. market. As DigiChina reported at the time, "reviews under those Measures focus on security implications stemming from procurement and installation of 'network products and services,'" and it was unclear how the IPO might or might not be legally related.
As the regulatory moves against Didi escalated, the CAC released a draft revision to those measures that, most substantially, added language (finalized in Article 7 below) requiring cybersecurity review for network service operators that handle more than 1 million users' data.
A Q&A published by the CAC after this final text was released clarified that, for entities subject to the pre-IPO review requirement, they are to file for cybersecurity review with the CAC before submitting listing paperwork to a foreign exchange. The term used for "foreign" (国外, literally "outside the country," as opposed to 境外, which generally refers both to foreign countries and to People's Republic of China territory outside the mainland, such as Hong Kong) may suggest that Hong Kong markets would not be considered foreign for purposes of these rules, but at time of writing I have not seen public confirmation of Hong Kong's status either way under these rules. –Graham Webster
Cybersecurity Review Measures
Cyberspace Administration of China
National Development and Reform Commission of the People's Republic of China
Ministry of Industry and Information Technology of the People's Republic of China
Ministry of Public Security of the People's Republic of China
Ministry of State Security of the People's Republic of China
Ministry of Finance of the People's Republic of China
Ministry of Commerce of the People's Bank of China
People's Bank of China
State Administration of Market Supervision
State Administration of Press, Publications, Radio, Film and Television
China Securities Regulatory Commission
State Secrets Bureau
State Cryptography Administration
Decree No. 8
The "Cybersecurity Review Measures" were deliberated and passed on Nov. 16, 2021 at the 20th departmental affairs meeting of the Cyberspace Administration of China, and has been agreed to by the National Development and Reform Commission, Ministry of Industry and Information Technology, Ministry of Public Security, Ministry of State Security, Ministry of Finance, Ministry of Commerce, People's Bank of China, State Administration of Market Supervision, State Administration of Press, Publications, Radio, Film and Television, China Securities Regulatory Commission, State Secrets Bureau, and State Cryptography Administration; they are hereby promulgated and take effect on Feb. 15, 2022.
Cyberspace Administration of China, Director: Zhuang Rongwen
National Development and Reform Commission, Director: He Lifeng
Ministry of Industry and Information Technology, Minister: Xiao Yaqing
Ministry of Public Security, Minister: Zhao Kezhi
Ministry of State Security, Minister: Chen Wenqing
Ministry of Finance, Minister: Liu Kun
Ministry of Commerce, Minister: Wang Wentao
People's Bank of China, Governor: Yi Gang
State Administration of Market Supervision, Director: Zhang Gong
State Administration of Press, Publications, Radio, Film and Television, Director: Nie Chenxi
China Securities Regulatory Commission, Chair: Yi Huiman
State Secrets Bureau, Director: Li Zhaozong
State Cryptography Administration, Liu Dongfang
Article 1: In order to ensure critical information infrastructure (CII) supply chain security, ensure cybersecurity and data security, and defend national security, in accordance with the “National Security Law of the People’s Republic of China,” the “Cybersecurity Law of the People’s Republic of China,” the “Data Security Law of the People’s Republic of China,” and the “Critical Information Infrastructure Security Protection Regulations,” these measures are formulated.
Article 2: Critical information infrastructure operators procuring network products and services and online platform operators conducting data handling activities that influence or may influence national security shall conduct a cybersecurity review according to these measures.
Critical information infrastructure operators and online platform operators as mentioned in the previous Paragraph are jointly referred to as parties.
Article 3: Cybersecurity reviews persist in the integration of preventing cybersecurity risks and the application of advanced technology; the integration of a fair and transparent process and the protection of intellectual property rights; the integration of prior review and ongoing supervision; and the integration of enterprise commitment and social supervision; and they conduct reviews on aspects such as the security of products, services and data handling activities, and the national security risks they could bring about.
Article 4: Under the leadership of the Central Commission for Cybersecurity and Informatization, the Cyberspace Administration of China, with the National Development and Reform Commission of the People’s Republic of China, the Ministry of Industry and Informatization of the People’s Republic of China, the Ministry of Public Security of the People’s Republic of China, the Ministry of State Security of the People’s Republic of China, the Ministry of Finance of the People’s Republic of China, the Ministry of Commerce of the People’s Republic of China, the People’s Bank of China, the State Administration for Market Regulation, the National Radio and Television Administration, the China Securities Regulatory Commission, the National Administration of State Secrets Protection, and the State Encryption Management Bureau, establishes the cybersecurity review work mechanism.
The Cybersecurity Review Office resides in the Cyberspace Administration of China with the responsibility of formulating cybersecurity review systems and standards and organizing cybersecurity reviews.
Article 5: CII operators that purchase network products and services shall anticipate the potential national security risk of products and services after they enter operation. If they influence or could influence national security, a cybersecurity review shall be reported to the Cybersecurity Review Office.
CII protection security work departments may formulate guidelines [for anticipating risk] in their industry or sector.
Article 6: Regarding purchasing activities that are to undergo cybersecurity review, CII operators shall require product and service providers to cooperate with the cybersecurity review through procurement documents or agreements, etc., including a commitment not to exploit the supply of products and services as a convenient way to illegally gain access to user data, illegally control and operate user equipment, or break off product supply or necessary technical support without reasonable grounds.
Article 7: Online platform operators holding the personal information of more than 1 million users and newly listing on foreign markets must report for cybersecurity review with the Cybersecurity Review Office.
Article 8: Parties submitting to a cybersecurity review shall submit the following materials:
- A written declaration;
- An analytic report on the influence or possible influence on national security;
- A procurement document, agreement, contract to be signed, Initial Public Offering (IPO) materials prepared for submission, and other such listing application documents;
- Other materials required for cybersecurity review work.
Article 9: The Cybersecurity Review Office shall determine whether a review is needed and provide written notice to the party within 10 working days of receiving the review declaration materials compliant with Article 8 of these Measures.
Article 10: The cybersecurity review process focuses on assessing the following factors in the potential national security risks brought about by related counterparts or circumstances
- The risk that the use of products and services could bring about the illegal control of, interference with, or destruction of CII;
- The harm to CII business continuity of product and service supply disruptions;
- The security, openness, transparency, and diversity of sources of products and services; the reliability of supply channels, as well as the risk of supply disruptions due to political, diplomatic, and trade factors;
- Product and service providers’ compliance with Chinese national laws, regulations, and department rules;
- The risk that core data, important data or large amounts of personal information are stolen, leaked, damaged, or illegally used or illegally exported;
- The risk existing that due to listing, CII, core data, important data, or large amounts of personal information are affected, controlled, or maliciously used by foreign governments, as well as cybersecurity risks;
- Other factors that could harm CII security, cybersecurity and data security.
Article 11: If the Cybersecurity Review Office deems it necessary to launch a cybersecurity review, it shall complete a preliminary review within 30 working days of issuing written notice to the party, including forming suggested review conclusions and transmitting them to the cybersecurity review work mechanism member units and relevant departments for opinions. In cases involving complex situations, the review may be extended an additional 15 working days.
Article 12: The cybersecurity review working mechanism member units and relevant departments shall respond with their opinions in writing within 15 days of receiving the suggested review conclusion.
If the member units of the cybersecurity review mechanism and relevant departments are in agreement, the Cybersecurity Review Office will formally notify the party of the review conclusion in writing. If the opinions are inconsistent, the special review procedures shall be followed and the party shall be notified.
Article 13: In accordance with the special review procedures, the Cybersecurity Review Office, after listening to the opinions of relevant work units and departments, conducting an in-depth analysis and evaluation, once again forming a review conclusion and recommendation, soliciting the opinions of the cybersecurity review mechanism member units and reporting to the Central Commission for Cybersecurity and Informatization for approval according to procedure, shall form the conclusion of the review and notify the party in writing.
Article 14: The special review procedure shall generally be completed within ninety working days, if the situation is complicated, it can be extended appropriately.
Article 15: If the Cybersecurity Review Office requests the provision of supplementary materials, parties and product and service providers shall cooperate. The time for submitting supplementary materials is not included in the review time.
Article 16: Network products and services as well as data handling activities that the cybersecurity review work mechanism member units believe affect or could affect national security shall, after being submitted to the Central Commission for Cybersecurity and Informatization for approval, be reviewed by the Cybersecurity Review Office in accordance with the provisions of these Measures.
In order to prevent risks, parties shall, during the review period, adopt risk prevention and mitigation measures according to cybersecurity review requirements.
Article 17: Relevant institutions and personnel involved in cybersecurity review shall strictly protect intellectual property rights, and shall undertake confidentiality obligations for commercial secrets and personal information they learn during review work, the unpublished materials submitted by operators and product and service providers, and other unpublished information; without the consent of the information provider, it may not be disclosed to unrelated parties or used for purposes other than review.
Article 18: If a party or a provider of network products and services believes that the review personnel are unfair and impartial, or that they fail to undertake the obligation of confidentiality of information learned during the review, they may report to the Cybersecurity Review Office or relevant department.
Article 19: Parties shall urge product and service providers to fulfill the commitments made in the cybersecurity review.
The Cybersecurity Review Office strengthens pre-event, in-progress, and post-event supervision by accepting reports and other forms.
Article 20: Parties who violate the provisions of these Measures shall be dealt with in accordance with the provisions of the “Cybersecurity Law of the People’s Republic of China” and the “Data Security Law of the People’s Republic of China.”
Article 21: The “network products and services” mentioned in these Measures primarily refer to core network equipment, important telecommunications products, high-performance computers and servers, large-capacity storage devices, large-scale databases and application software, cybersecurity equipment, cloud computing services, and other important network products and services that have important influence on the security of CII, cybersecurity and data security.
Article 22: Where information related to state secrets is involved, the relevant national secrecy protection provisions apply.
Where the State has issued other provisions on data security review and foreign investment security review, those provisions shall be complied with simultaneously.
Article 23: These Measures take effect on Feb. 15, 2022. The "Cybersecurity Review Measures" passed on 13 April 2020 (Cyberspace Administration of China, National Development and Reform Commission, Ministry of Industry and Information Technology, Ministry of Public Security, Ministry of State Security, Ministry of Finance, Ministry of Commerce, People's Bank of China, State Administration of Market Supervision, State Administration of Press, Publications, Radio, Film and Television, China Securities Regulatory Commission, State Secrets Bureau, and State Cryptography Administration Decree No. 6) is abolished at the same time.
CHINESE LANGUAGE ORIGINAL