This translation was produced by Rogier Creemers and edited by Graham Webster based on DigiChina's translation of the Draft for Comment of October 2021 by Creemers, Samm Sacks, Webster, and Lorand Laskai.
Outbound Data Transfer Security Assessment Measures
Cyberspace Administration of China
July 7, 2022
Article 1: In order to regulate outbound data transfer activities, protect personal information rights and interests, safeguard national security and the social public interest, and promote the secure and free cross-border flow of data, and on the basis of the “Cybersecurity Law of the People’s Republic of China,” the “Data Security Law of the People’s Republic of China,” the “Personal Information Protection Law of the People’s Republic of China,” and other such laws and regulations, these Measures are formulated.
Article 2: These Measures apply to the security assessment of data handlers providing abroad important data or personal information that was collected or produced through operations within the (mainland) territory of the People’s Republic of China. Where laws or administrative regulations provide otherwise, those provisions are to be followed.
Article 3: The security assessment of outbound data transfer is to persist in integrating prior assessment and continuous supervision, and integrating risk self-assessment and security assessment; prevent outbound data transfer security risks; and ensure the lawful, orderly, and free flow of data.
Article 4: Data handlers providing data abroad shall, in any of the following circumstances, apply for outbound data transfer security assessment with the national cybersecurity and informatization department through their local provincial-level cybersecurity and informatization department:
- Where the data handler provides important data abroad;
- Critical information infrastructure operators and data handlers handling the personal information of over 1 million people providing personal information abroad;
- Data handlers providing abroad the personal information of more than 100,000 people or the sensitive personal information of more than 10,000 people since January 1 of the previous year;
- Other circumstances where the State cybersecurity and informatization department provides data export security assessment must be applied for.
Article 5: Before data handlers apply for a data export security assessment, they shall first conduct an outbound data transfer risk self-assessment, focusing on assessing the following matters:
- The legality, propriety, and necessity of the purpose, scope, method, etc., of the outbound data transfer and data handling by the foreign receiving party;
- The scale, scope, categories, and degree of sensitivity of the data transferred abroad; the risks that the outbound data transfer may engender to national security, the public interest, and the lawful rights and interests of individuals and organizations;
- The responsibilities and duties undertaken and borne by the foreign receiving party, as well as whether or not the security of data transferred abroad can be ensured through management and technical measures and capabilities, etc., to fulfill their responsibilities and duties;
- The risk of alteration, destruction, leak, loss, transfer, or illegal acquisition, illegal use, etc., during and after data is transferred abroad, and whether or not the channels to uphold personal information rights and interests are open, etc.;
- Whether or not the data outbound transfer–related contract intended to be concluded with the foreign receiving party or another document with legal effect (hereafter jointly named legal documents) fully stipulates data security protection responsibilities and duties;
- Other matters that may influence the security of data provision abroad.
Article 6: To apply for outbound data transfer security assessment, the following materials shall be submitted:
- An application letter;
- An outbound data transfer risk self-assessment report;
- The legal document intended to be concluded between the data handler and the foreign receiving party;
- Other materials necessary for security assessment work.
Article 7: Provincial-level cybersecurity and informatization departments shall, within five working days from receiving application materials, finish an inspection for completeness. Where the application materials are complete, the application materials are submitted to the national cybersecurity and informatization department; where the application materials are not complete, they shall be returned to the data handle, who is notified once on materials that require amendment.
The national cybersecurity and informatization department shall, within seven working days from the date of receiving the application materials, determine whether or not the assessment is accepted, and notify the data handler in writing.
Article 8: Outbound data transfer security assessment focuses on assessing the risks that outbound data transfer activities may bring to national security, the public interest, and the lawful rights and interests of individuals and organizations, and mainly includes the following matters:
- The legality, propriety, and necessity of the purpose, scope, method, etc., of outbound data transfer;
- The effects on the security of the data transferred abroad of the data security protection policies, laws, and regulations, and the cybersecurity environment of the country or region where the foreign receiving party resides; whether or not the foreign receiving party’s data protection level reach the requirements of the laws, administrative regulations, and mandatory national standards of the People’s Republic of China;
- The scale, scope, categories, and degree of sensitivity of the data transferred abroad; and the risk of alteration, destruction, leak, loss, transfer, illegal acquisition, illegal use, etc., during or after outbound transfer;
- Whether or not data security and personal information rights and interests are fully and effectively ensured;
- Whether or not the legal document intended to be concluded between the data handler and the foreign receiving party fully stipulates data security protection responsibilities and duties;
- The degree of compliance with Chinese laws, administrative regulations, and departmental rules;
- Other matters that the State cybersecurity and informatization department determines should be assessed.
Article 9: The legal document that the data handler shall conclude with the foreign receiving party is to fully stipulate data security protection responsibilities and duties, and is to include at least the following content:
- The purpose (目的), method, and data scope of data outbound transfer, and the purpose (用途), method, etc., of the foreign receiving party's data handling;
- The location and time limit of data storage abroad, as well as measures to handle the data transferred abroad when the storage time limit is reached, the agreed purpose is completed, or the legal document is terminated;
- Restraining requirements on the foreign receiving party on retransferring the exported data to other organizations or individuals;
- The security measures that shall be adopted when a substantive change occurs in the foreign receiving party's actual control powers or scope of operations, or when changes in the data security protection policy and regulation, or cybersecurity environment of the country or region in which they reside, or other force majeure conditions, lead to difficulty to ensure data security;
- The remedial measures, liability for breach, and dispute settlement methods for violation of the legal document’s data security protection duties;
- When alteration, destruction, leak, loss, transfer or illegal acquisition, illegal use or other data export risk occurs, requirements on the appropriate launching of emergency response measures, and ensuring individuals have open channels to uphold their personal information rights and interests.
Article 10: After the national cybersecurity and informatization department accepts the application, it is to organize, on the basis of the application situation, relevant State Council departments, provincial-level cybersecurity and informatization departments, and specialized agencies, etc., to conduct the security assessment.
Article 11: Where, during the process of the security assessment it is discovered that application materials submitted by data handlers do not conform to requirements, the national cybersecurity and informatization department may require supplement or correction. Where data handlers to not supplement or correct these without proper reason, the national cybersecurity and informatization department may terminate the security assessment.
As for data handlers’ responsibility for the veracity of submitted materials, where they willfully submit false materials, the matter is to be handled as not passing security assessment, and relevant legal liability is to be prosecuted according to the law.
Article 12: The national cybersecurity and informatization department shall complete the outbound data transfer security assessment within 45 working days from the date of issuance of the written acceptance notice to the data handler; if the situation is complicated or supplementary or corrected materials are needed, this may be appropriately extended, and the data handler is to be notified about the estimated time extension.
The results of the assessment shall be notified to the data handler in writing.
Article 13: Where data handlers object to the assessment outcome, they may request reconsideration with the national cybersecurity and informatization department within 15 working days of receiving the assessment outcome. The reconsideration outcome will be the final verdict.
Article 14: Positive outbound data transfer security assessment results are effective for two years, to be calculated from the date of issuance of the assessment outcome. During their period of validity, if one of the following circumstances occurs, data handlers shall re-apply for assessment:
- The purpose, method, scope, or category of data provided abroad, or the purpose and method of data handling by foreign receiving party change, affecting outbound data security, or the time limit for storage abroad of personal information or important data is extended;
- Circumstances that affect the security of data transferred abroad, such as changes in the data security protection policies and regulations, and the cybersecurity environment of the country or region where the foreign recipient party is located as well as the occurrence of other force majeure conditions, changes to the actual control powers of the data handler or the foreign receiving party, changes to the legal document between the data handler and the foreign receiving party, etc.;
- Other circumstances that may affect the security of data transferred abroad.
If the validity period expires and it is necessary to continue the outbound data transfer activities, data handlers shall re-apply for assessment 60 working days before the validity period expires.
Article 15: Relevant agencies and personnel participating in security assessment work shall preserve the secrecy of State secrets, personal privacy, personal information, commercial secrets, confidential commercial information, and other such data they learn of while fulfilling their responsibilities; they must not leak or illegally provide it to others, or illegally use it.
Article 16: Where any organization or individual discovers that data handlers are providing data abroad in violation of these Measures, they may file a report with the provincial-level or higher cybersecurity and informatization department.
Article 17: If the national cybersecurity and informatization department determines that, in the actual data handling process, outbound data transfer activities that have passed assessment no longer meet outbound data transfer security management requirements, it shall notify the data handler in writing to terminate the outbound data transfer activity. If it is necessary for the data handler to continue to carry out outbound data transfer activities, they shall make corrections in accordance with requirements and re-apply for assessment after the corrections are complete.
Article 18: Violations of the provisions of these Measures is to be handled in accordance with laws and administrative regulations such as the Cybersecurity Law of the People’s Republic of China, the Data Security Law of the People’s Republic of China, and the Personal Information Protection Law of the People’s Republic of China; where a crime is constituted, criminal responsibility is to be investigated according to the law.
Article 19: Important data, as mentioned in these Measures, refers to data that, if it is altered, destroyed, leaked, illegally acquired or illegally used, etc., may harm national security, economic operations, social stability, public health or security, etc.
Article 18: These Measures are implemented beginning September 1, 2022. Where outbound data provision activities that already took place before these Measures took effect do not conform to the provisions of these Measures, they are to make corrections within six months of the implementation of these Measures.
Archived copy: https://web.archive.org/web/20220708014822/http://www.cac.gov.cn/2022-07/07/c_1658811536396503.htm