Cross-Border Data Dynamics : An Analysis of China's Cybersecurity Law under TBT Compliance
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This paper examines the controversies surrounding China’s Cybersecurity Law and evaluates whether this law violates the provisions of the Technical Barriers to Trade (TBT) Agreement. The primary reason countries consider China’s Cybersecurity Law as a TBT is due to its restrictions on cross-border data flows. The analysis reveals that the core issue behind differing national attitudes towards cross-border data flows lies in the significant differences in how key stakeholders define cybersecurity. Therefore, leading cyber powers should prioritize reaching a consensus on defining cybersecurity terms. Countries should enhance their cybersecurity strategies by issuing and refining relevant administrative regulations, departmental rules, and normative documents to provide a solid implementation foundation for network operators and law enforcement agencies. Additionally, given its significant economic relationship with China, the Korean government emphasizes the need for a balanced approach to data localization and cross-border data flow policies to ensure both national security and economic growth.
Abstract
This paper examines the controversies surrounding China’s Cybersecurity Law and evaluates whether this law violates the provisions of the Technical Barriers to Trade (TBT) Agreement. The primary reason countries consider China’s Cybersecurity Law as a TBT is due to its restrictions on cross-border data flows. The analysis reveals that the core issue behind differing national attitudes towards cross-border data flows lies in the significant differences in how key stakeholders define cybersecurity. Therefore, leading cyber powers should prioritize reaching a consensus on defining cybersecurity terms. Countries should enhance their cybersecurity strategies by issuing and refining relevant administrative regulations, departmental rules, and normative documents to provide a solid implementation foundation for network operators and law enforcement agencies. Additionally, given its significant economic relationship with China, the Korean government emphasizes the need for a balanced approach to data localization and cross-border data flow policies to ensure both national security and economic growth.
참고문헌 (51)
- Aaronson, Susan Ariel, "What Are We Talking About When We Talk about Digital Protectionism?", World Trade Review, 18(4), pp.541~577 (2019)
- Borgogno, Oscar, "Chinese Data Governance and Trade Policy : From Cyber Sovereignty to the Quest for Digital Hegemony", Journal of Contemporary China, 33(148), pp.578~602 (2024)
- Burri, Mira, "The regulation of data flows through trade agreements", Georgetown Journal of International Law, 48(2), pp.407~448 (2017)
- "Notice the Cyberspace Administration of China on the Public Consultation on the ‘Regulations on the Security Protecti on of Critical Information Infrastructure (Draft for Comment)’. (CN)" (2017)[URL]
- "Notice from the Cyberspace Administration of China o n the Public Consultation on the 'Measures for the Security Eva luation of the Exit of Personal Information (Draft for Comments)’ (CN)" (2019)[URL]
- Chung, Chan-Mo, "Data Localization: The Causes, Evolving International Regimes and Korean Practices", Journal of World Trade, 52(2), pp.187~208 (2018)
- Cihon, Peter, "Standards for AI Governance: International Standards to Enable Global Coordination in AI Research &Development", Future of Humanity Institute, 40(3), pp.340~342 (2019)
- "Jo int Statement for the Record to the Senate Armed Services Co mmittee Foreign Cyber Threats to the United States" (2017)[URL]
- "Data Protection"[URL]
- "The Interests of China and South Korea Are Intertwin ed, and the People of Both Countries Are Connected at Heart;No One Can Separate Us! (CN)" (2024)[URL]
- Fleuter, Sam, "The Role of Digital Products Under the WTO:A New Framework for GATT and GATS Classification", Chicago Journal of International Law, 17(1), pp.153~177 (2016)
- Cybersecurity and Trade: National Policies, Global and Local Consequences, "Friedman, Allan A", Center for Technology Innovation at Brookings, 1~18 (2013)
- Gagliani, Gabriele, "Cybersecurity, Technological Neutrality, and International Trade Law", Journal of International Economic Law, 23(3), pp.723~745 (2020)
- "US expert: China and the US have very different definitions of ‘cybersecurity’ and misunderstand each other (CN)" (2015)[URL]
- "U.S. Privacy Laws: The Complete Guide" (2023)[URL]
- "Overall Plan for the Construction o f Hainan Free Trade Port (CN)" (2020)[URL]
- Hathaway, Melissa E., "National Cyber Security Framework Manual", ATO Cooperative Cyber Defence Centre of Excellence, ~ (2012)
- Hufbauer, Gary Clyde, "19-14 Global E-Commerce Talks Stumble on Data Issues, Privacy, and More", Peterson Institute for International Economics, ~ (2019)
- ITU, "Guide to developing a national cybersecurity strategy:Strategic engagement in cybersecurity (2nd edition)", ~ (2021)
- Kim, Young-do, "Major Issues of the National Cyber Security System in South Korea, and its Future Direction", Korean Journal of Defense Analysis, 25(4), pp.435~455 (2013)
- Li, Yi, "An Analysis of China’s Requirement for Data Localization in the Context of the WTO (CN)", Journal of Chongqing University of Posts and Telecommunications (Social Science Edition) (2019)
- Li, Yuxiao, "Analysis and enlightenment on the cybersecurity strategy of various countries in the world (CN)", Chinese Journal of Network and Information Security, 2(1) (2016)
- "How to Accurately Understand the Management Requirements for Cross-Border Data Flow in Article 37 of the ‘Cybersecurity Law’? (CN)" (2022)[URL]
- A Study on Cyber Security Policy and Governance in the ICT Convergence Environment: Focused on Authentication, "Lyu, H. S", Korea Institute of Public Administration, 58~89 (2015)
- Maness, Ryan C., "The Impact of Cyber Conflict on International Interactions", Armed Forces &Society, 42(2), pp.301~323 (2016)
- Marjit, Sugata, "Virtual trade between separated time zones and growth", International Journal of Economic Theory, 13(2), pp.171~183 (2017)
- Meltzer, Joshua P., "Governing Digital Trade", World Trade Review, 18(S1), pp.S23~S48 (2019)
- "U.S. Criticism of China’s Cybersecurity Law and the Nexus of Data Privacy and Trade Law" (2017)[URL]
- Mishra, Neha, "Privacy, Cybersecurity, and GATS Article XIV:A New Frontier for Trade and Internet Regulation?", World Trade Review, 19(3), pp.341~364 (2020)
- Mitchell, Andrew D., "Don't Fence Me in: Reforming Trade and Investment Law to Better Facilitate Cross-Border Data Transfer", Yale Journal of Law and Technology, 19, pp.182~237 (2017)
- Mitchell, Andrew D., "Regulating Cross-Border Data Flows in a Data-Driven World: How WTO Law Can Contribute", Journal of International Economic Law, 22(3), pp.389~416 (2019)
- "The ‘Electronic Commerce Law of the People's Republi c of China’" (2018)[URL]
- "The ‘Encryption Law of the People’s Republic of China’" (2019)[URL]
- Oddenino, Alberto, "Digital standardization, cybersecurity issues and international trade law", Questions of International Law, 51, pp.31~51 (2018)
- OECD, "Cybersecurity Policy Making at a Turning Point:Analysing a New Generation of National Cybersecurity Strategies for the Internet Economy" (2012), OECD Publishing
- Next generation non-tariff measures: Emerging data policies and barriers to digital trade, "Pasadilla, Gloria", ARTNeT, ~, pp.ARTNeT Working Paper Series (187) (2020)
- Peng, Shin-yi, "Private cybersecurity standards: Cyberspace governance, multistakeholderism, and the (Ir)relevance of the TBT regime", Cornell International Law Journal, 51(2), pp.445~470 (2018)
- Poscher, Ralf, "Oxford Handbook on Language and Law" (2011), Oxford University Press
- "Cybersecurity Law of the People's Re public of China (full text) (CN)" (2016)[URL]
- Selby, John, "Data localization laws: trade barriers or legitimate responses to cybersecurity risks, or both?", International Journal of Law and Information Technology, 25(3), pp.213~232 (2017)
- "U.S., China trade criticisms at WTO over cybersecurity measures" (2018)[URL]
- "China Adopts New Data Secu rity Law" (2021)[URL]
- "Weathering China’s Cloud Co mputing Regulations" (2016)[URL]
- Tan, Wenling, "National Security as the Trump Card:Assevnssing China's Legal Regime on Cross-Border Data Transfer", Information & Communications Technology Law, pp.1~16 (2024)
- "TC26, The latest version of GB/T 35273 ‘Information Securit y Technology Personal Information Security Specification’ for so liciting comments (with full text)" (2019)[URL]
- "Of Privacy, EU and of Human Rights - 75 years After" (2020)[URL]
- "China adopts cybersecu rity law in face of overseas opposition" (2016)[URL]
- "Members debate cybersecurity and chemicals at techn ical barriers to trade committee" (2017)[URL]
- "South Korea data localization shaped by conflict" (2018)[URL]
- Zhou, Sijia, "Clarification of the relationship between personal data rights and personal information rights (CN)", Journal of East China University of Political Science and Law, (2) (2020)
- Zhao, Shuyu, "The 'Network Security Law of the People's Republic of China' has achieved remarkable results in three years: building a solid network security barrier with the rule of law (CN)", Internet Broadcast, pp.34~37 (2020)
