| With the development of Internet technology,the data is also growing explosively,and the security of data,especially in the process of data flow,is increasingly required.In the era of big data,the cross-border flow of data has become the norm.At the same time,problems such as data theft,data abuse,national data surveillance,privacy invasion,jurisdiction conflict and increased difficulty of judicial assistance also come along.The gradual advance of technology makes social risks more difficult to detect and detect,and the bad effects of dangerous outbreaks will be difficult to bear and clear.Therefore,"data localization measures" as the main means to regulate the cross-border data flow is favored by most countries in the world.As a major Internet country,China is also a latecomer to Internet technology,so it is more inclined to apply data localization measures to protect cross-border data flow and data security.The Internet economy relies on free management and regulatory measures,and the development of digital trade also requires a unified market and free data flow,which are contrary to the restrictive effect of data localization measures.However,this does not deny the function and value of data localization measures.It is necessary for China to take appropriate measures to localize the flow of data across borders in order to gain a dominant position in the digital economy,protect national security,and protect human rights.The WTO is the most important system of multilateral trade rules in the current international order.As a major trading country,China is also an important member of the WTO.The relevant rules of the WTO certainly apply to China.Since the data localization measures do not involve the trade in goods,and the trade in services is mainly affected,this paper focuses on the rationality and legality of China’s data localization measures under GATS.In terms of rationality,first of all,as the largest developing country,it is necessary and reasonable for China to take appropriate measures of data localization in order to promote its economic development,especially to protect its own industry in the emerging technology fields such as the Internet and to promote digital trade.Secondly,the goal of China’s data localization measures is consistent with the "security exception" clause allowed by GATS.The occurrence of "Snowden" incident has also sounded an alarm to all countries in the world.National security is not only China’s pursuit,but also the common demand of all countries in the world.China’s national security on the Internet is the performance of "network sovereignty",and the data localization measures are an important means to achieve this value.Finally,respect for human rights and the protection of personal privacy cannot be separated from the supervision and management of personal data.One of the functions of data localization measures is to achieve the protection of personal data in a controlled manner.China’s relevant measures are not only consistent with the position of other countries in the world,but also consistent with the reasonable practice given by the "privacy exception" in the GATS.In terms of legality,firstly,the two modes of commercial presence and crossborder delivery in service trade are mainly affected by data localization measures,so GATS rules apply to data localization measures.Secondly,for China,it is mainly about whether the data localization measures violate China’s specific commitments in the WTO,specifically whether there is a violation of the "domestic law obligations","market access principles" and "national treatment principles" in the GATS.Finally,in the case of violation of relevant rules,the article analyzes the conditions that the exception clause should be invoked and interpreted,and discusses whether there is a possibility to invoke the exception clause in GATS.Data localization measures should be an important tool to implement data security measures,but should not be the purpose to achieve data security.Data localization initiatives can only serve as a link to other important considerations.China should consider the reality of its own country,pursue the goal of "giving priority to national security and data sovereignty,placing equal emphasis on individual privacy protection and trade development" in terms of legislative value,adopt data classification and classification for supervision and management,and strengthen the punitive measures for cross-border data flow.At the same time,we should strengthen the compliance requirements of China’s data localization measures in GATS and improve the contents of relevant measures.In the process of actively participating in and promoting the WTO reform,we can refer to the rules in TRIMs to improve the rules in the field of service trade. |
