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Research On Legal Regulation Of Cross-border Data Flow

Posted on:2020-11-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y Y YuanFull Text:PDF
GTID:2416330578473682Subject:Economic Law
Abstract/Summary:PDF Full Text Request
With the popularization and development of big data technology,the large-scale growth of cross-border data flow promotes the development of international trade and increases the risk of data transmission and leakage,even the national data sovereignty and security are endangered,cross-border data flow regulation is therefore subject to renewed attention at the level of domestic law and international law.It is of great theoretical and practical significance to study the content and characteristics of cross-border data flow in other countries and international organizations.Based on normative analysis,comparative analysis and other methods,the paper firstly analyzes the goal of legal regulation of cross-border data flow.Secondly,the different methods of cross-border data flow regulation in domestic laws and the rules related to cross-border in international treaties are analyzed in detail to reveal the development characteristics and trends of cross-border data flow rules.Finally,according to the current situation of the regulation of cross-border data flow in China,we can draw on the international experience,and put forward some specific suggestions to perfect the legal regulation in China.In addition to the introduction and conclusion,the paper is divided into five parts.The first part is the analysis of goals of legal regulation of cross-border data flow.Cross-border data flow regulation is not only to safeguard national data sovereignty and security,but also to protect personal data rights,and to promote the development and growth of international trade.How to maintain a proper balance among the three is a problem that must be paid attention to when formulating cross-border data flow rules.The second part discusses the domestic laws and regulations of cross-border data flow.The adequate protection model of EU member states attaches importance to the protection of individual data rights and privacy,and requires that the data-flow countries can provide adequate protection orappropriate safeguards for data.The United States encourages the free flow of data across borders and advocates industry self-regulation.The data localization model represented by Russia tends to protect national data sovereignty and security.Through the signing of The U.S.-EU Safe Harbor Framework and The EU-U.S.Privacy Shield,the United States and Europe have provided legal reasons for the cross-border data flow between each other,and provided reference for the cooperation of cross-border data flow supervision between countries adopting different regulatory models.The third part discusses the international law rules on cross-border data flow.The WTO rules have no direct regulation on cross-border data flow.OECD Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data and the APEC Privacy Framework have obvious characteristics of U.S.regulation,encouraging the free cross-border flow of data,emphasizing the role of industry self-regulation.The U.S.-Korea Free Trade Agreement and the Trans-Pacific Partnership Agreement have served as a model for cross-border data flow rules incorporated into international trade agreements.In general,cross-border data flow rules at the international law level encourage the free flow of data for the development of international trade,at the same time set certain exceptions to ensure data security.The fourth part is to analyze the characteristics of the current legal regulation of cross-border data flow.First of all,the form of regulation is the coexistence of domestic laws and international laws,mainly domestic laws,and there is no effective link between domestic laws and international regulations.Secondly,the goals of regulation have obvious tendency,or focus on the protection of national data sovereignty and security,or the protection of personal data rights and privacy,or tends to promote the development of international trade.Thirdly,the binding force is limited,most of the existing rules are aimed at personal data and rarely contain other types of data;the provisions of international organizations and international trade agreements are regional,and some of them even have only reference significance.Finally,the rules lack of practical operation,and the implementation rules need to beconcreted.It is difficult to obtain the consent of the data subject and sufficient protection authentication or cross-border privacy authentication and so on.The fifth part discusses the current situation and perfection of the regulation of cross-border data flow in China.The legal framework of cross-border data flow has been initially established in China,mainly by the Cybersecurity Act,supplemented by the Measures for Safety Review of Web Products and Services(Trial),and other supporting legal documents,such as the Information security technology-Personal information security specification.There are still some problems,such as legislation decentralization and fragmentation,obvious imbalance of regulatory goals,imperfect data protection regulatory mechanism,lack of international cooperation mechanism,and so on.Therefore,at the domestic law level,China should speed up the formulation of the Personal Information Protection Law,reduce the rules of data localization,establish data classification protection system,introduce the industry self-regulation and further improve the safety supervision mechanism and relief mechanism.At the level of international law,China should promote its own ideas in international organizations such as WTO and APEC,strengthen bilateral regulatory cooperation with countries at the same level of development on cross-border data flow,actively participate in the formulation of international bilateral and multilateral trade agreements,and carry out its own cross-border data flow policy in China-led RCEP.
Keywords/Search Tags:cross-border data flow, data sovereignty, data security, data localization, data protection
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