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Monday, January 29, 2018

China Issues Personal Information Security Specification

On January 2, the Standardization Administration of China published the final text of its Information Security Technology – Personal Information Security Specification, which will come into effect on May 1, 2018. While the data protection standard it establishes is not strictly obligatory, it sets forth a set of best practices that regulators will clearly reference as they audit companies, with drafts of the specification already used for this purpose.  The specifications incorporate the comprehensive privacy principles found in most omnibus data protection laws, addressing the collection, use, disclosure, retention and safeguarding of personal information, as well as data subject rights.  The specification closely aligns with the General Data Protection Regulation in many areas, such as:  the definition of personal information; the data controller-data processor distinction; obligations relating to consent; the principles of transparency, purpose limitation, minimization and proportionality; notice requirements; data breach notification; and privacy impact assessments.  At the same time, it deviates from the GDPR in a number of regards, such as:  a broader definition of sensitive data; the absence of legitimate interests as a basis for processing; a stronger right to be forgotten; requirements of separate notices for collection and for sharing of personal data; and more granular security requirements.  Notably, the specification leaves details about international data transfers to separate regulations and standards expected in the future.

We now are witnessing watershed moments in the development of comprehensive privacy protections in the EU, with the May 2018 implementation of the General Data Protection Regulation; in India, with its Supreme Court’s recognition of a constitutional right to privacy; and in China, with its steady adoption of internationally accepted principles of information privacy.  The contrast with the lack of legislative progress at the national level in the US could not be starker.

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