PRC Cyber Security Law --- How does it affect a UK business? Xun Yang Of Counsel, Commercial IP and Technology

Transcription

1 PRC Cyber Security Law --- How does it affect a UK business? Xun Yang Of Counsel, Commercial IP and Technology 24 October 2017

2 Content Overview of Cyber Security Law Observations on Implementation of Cyber Security Law Key Issues in Cyber Security Protection Practical Suggestions in Protecting Cyber Security 1 / L_LIVE_APAC1: v1

3 Overview of Cyber Security Law 2 / L_LIVE_APAC1: v1

4 Overview of Cyber Security Law Historical Review Concept of cyber security Historical attitude towards cyber security Balance between development and control Speeding up the legislation process 3 / L_LIVE_APAC1: v1

5 Overview of Cyber Security Law Nature of the Cyber Security Law National Security Law Industry-specific rules Supporting Laws Piecemeal Data Protection Rules Practice Cyber Security Law Ministerial Rules Industrial Standards 4 / L_LIVE_APAC1: v1

6 Overview of Cyber Security Law Content Development of cyber security technology Security duties of network operators Extra duties of operators of critical information infrastructure Personal data protection Obligations to cooperate with government against cyber crimes 5 / L_LIVE_APAC1: v1

7 Overview of Cyber Security Law Features To bring cyber security and personal information protection onto a state interest level To harmonize existing rules on cyber security matters To engage and authorize government agencies to enact and implement cyber security rules To have extra-territory effect 6 / L_LIVE_APAC1: v1

8 Overview of Cyber Security Law Regulatory bodies MPS CAC MIIT Industry Regulators 7 / L_LIVE_APAC1: v1

9 Observations on Implementation of Cyber Security Law 8 / L_LIVE_APAC1: v1

10 Observations on Implementation of Cyber Security Law New legislations since the promulgation of Cyber Security Law 9 / L_LIVE_APAC1: v1

11 Observations on Implementation of Cyber Security Law New legislations since the promulgation of Cyber Security Law Macro-policy National Cyber Space Security Strategy Big Data Development Scheme Market Entrance for Network Product and Services Notice on Cleaning and Normalizing Internet Access Service Market Encryption Law (draft) Network Product and Service Security Examination Measures Data Exportation Security Assessment Measures for Exporting Personal Information and Important Data (draft) Guidance for Data Exportation Security Assessment (draft) 10 / L_LIVE_APAC1: v1

12 Observations on Implementation of Cyber Security Law New legislations since the promulgation of Cyber Security Law (Cont d) Network Securities Regulation on Protection of Critical Information Infrastructure Measures for Monitoring and Handling Security Threats to Public Networks Personal Data Protection General Provisions of Civil Law Information Security Techniques and Personal Information Protection Guidance (draft) Guidance for Depersonlization of Personal Information (draft) Content Censorship Procedural Rules on Administrative Actions on Internet Content Administrative Rules on Internet Public Account Information Services Administrative Rules on Internet Discussion Group Information Services 11 / L_LIVE_APAC1: v1

13 Observations on Implementation of Cyber Security Law Key government actions To cleaning up VPN market To close down social media accounts To inspect ICP filings To prosecute against serious personal data infringement To investigate privacy policies and practice To carry out IT security inspections 12 / L_LIVE_APAC1: v1

14 Observations on Implementation of Cyber Security Law Key Messages Encouragement of industrial informationalisation Systematical enforcement of cyber security rules Strengthened protection of personal information Learning process for both government and business 13 / L_LIVE_APAC1: v1

15 Observations on Implementation of Cyber Security Law Encouragement of industrial informationalisation Security products Equipment Service Technology Data business Big data Cloud business 14 / L_LIVE_APAC1: v1

16 Observations on Implementation of Cyber Security Law Systematical enforcement of cyber security rules Include cyber security into existing laws Data protection requirements Network security requirement Upgrade of legislative levels Encryption requirement Consolidation and clarification of existing rules Market access permissions Rules on using VPN 15 / L_LIVE_APAC1: v1

17 Observations on Implementation of Cyber Security Law Strengthened protection of personal information Scope of coverage Specific coverage to comprehensive coverage Detailed rules Definition Standard Process Methodology Remedies Administrative Civil Criminal 16 / L_LIVE_APAC1: v1

18 Observations on Implementation of Cyber Security Law Learning Process for both the government and the business Government From principles to detailed rules Item by item legislation Multiple regulators Business Understand and following meaning of cyber security rules Lobby with government Cyber security as an ongoing matter 17 / L_LIVE_APAC1: v1

19 Key Issues in Cyber Security Protection 18 / L_LIVE_APAC1: v1

20 Key Issues in Cyber Security Protection Is a foreign business governed by the cyber security laws? Presence Website Source of Information WFOE Rep Office Offshore company Server location Operating term Target audience Data subjects Data collecting activities Data sovereignty 19 / L_LIVE_APAC1: v1

21 Key Issues in Cyber Security Protection Does China prohibits data exportation? State secret? Administrative restrictions? Threshold Security measures National interest National sovereignty Population and healthcare Financial data Achieve CII Industry Possibility of being misused Volume Selfcensorship Government screening 20 / L_LIVE_APAC1: v1

22 Observations on Implementation of Cyber Security Law Is VPN allowed to be used for business reasons? Personal Terminal Company Server Access Network Internet 21 / L_LIVE_APAC1: v1

23 Observations on Implementation of Cyber Security Law Is VPN allowed to be used for business reasons? (Cont d) Personal Terminal Company Server Access Network Internet 22 / L_LIVE_APAC1: v1

24 Observations on Implementation of Cyber Security Law Is VPN allowed to be used for business reasons? (Cont d) Personal Terminal Company server Offshore server Access Network Internet 23 / L_LIVE_APAC1: v1

25 Key Issues in Cyber Security Protection Can we outsource data processing? Business reasons Data risks Purpose of outsourcing Legal restrictions Prohibited Restricted Technical Financial Legal Vendor due diligence Conditions Informed consent Technical restrictions 24 / L_LIVE_APAC1: v1

26 Key Issues in Cyber Security Protection How the cyber security laws affect negotiation of outsourcing contracts? Due diligence Warranties on the compliance with licensing requirement Periodical risk assessment Service levels compliance with statutory requirements and good industrial practice Consistence among various service providers Data location Location of data processing; remote access Cloud based services Risk management Contingency plan Drills Step-in right 25 / L_LIVE_APAC1: v1

27 Key Issues in Cyber Security Protection Are we required to procure only domestic network products / services? Licensing Requirements Security Considerations Telecoms services Network access device Encryption Security levels Supply chain risks Back door risks Excessive Reliability 26 / L_LIVE_APAC1: v1

28 Practical suggestions in protecting cyber security 27 / L_LIVE_APAC1: v1

29 Practical suggestions in protecting cyber security Hints To establish proper risk assessment procedures IT risk governance and management plan Management of business process from an information governance aspect Privacy policy and informed consent Incident management Cyber security as an ongoing process 28 / L_LIVE_APAC1: v1

30 Practical suggestions in protecting cyber security To establish proper risk assessment procedures Procurement of network products and services Data exportation risk assessment Personal data risk assessmeny 29 / L_LIVE_APAC1: v1

31 Practical suggestions in protecting cyber security IT risk governance and management plan (1) External service provider Directors and senior management IT Business Legal HR 30 / L_LIVE_APAC1: v1

32 Practical suggestions in protecting cyber security IT risk management plan (2) Understand the business process Data classification Information flow Human inference Risk identification Technical risks Behavioural risks Risk mitigating measures Proactive measures Remedial measures Policy implementation Consultation and publication Policy management Training Policy Documentation To be consistent with global policy Translation Policy Review To address business concerns To meet statutory requirements 31 / L_LIVE_APAC1: v1

33 Practical suggestions in protecting cyber security Management of business process from an information governance aspect Informed consent, consistence with purpose? Need to know? Business usage Information collection /acquisition Information processing Outsourcing Data storage Management of service levels / IP rights Data disposal IT Infrastructure IT risk management Storage requirement 32 / L_LIVE_APAC1: v1

34 Practical suggestions in protecting cyber security Privacy policy and informed consent Content to be informed Scope; Manner Technology communication channels Necessity for current and future use Do we need to cover all possible future use? Depersonalization Clarity and flexibility including but not limited to all other legitimate purpose Manner of description and display Accuracy vs. plain language Manner of display and consent Communications Right to access Right to report 33 / L_LIVE_APAC1: v1

35 Practical suggestions in protecting cyber security Incident management Incident appraisal Communication management Adoption of remedial measures Allocation of resulting liabilities Team formation 34 / L_LIVE_APAC1: v1

36 Practical suggestions in protecting cyber security Cyber security as an ongoing matter Development of the law Change of industrial practice Evolution of new business processes 35 / L_LIVE_APAC1: v1

37 Q&A WeChat: Xun Yang Of Counsel, Shanghai T: M: E: Linkedin Account: Xun advises on commercial, regulatory and intellectual property matters with a particular focus on life science, financial services and telecoms sectors. He has significant experience in advising on technology transactions, IT services, outsourcing, IP protections, data privacy, and investment in sensitive sectors. 36 / L_LIVE_APAC1: v1

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