Research On The Applicability Of National Security Exception Clauses In Cross-border Data Flow

In the area of data cross border flow,different countries in the world have taken measures such as data localization and security assessment before data transmission in data governance to regulate for the sake of ensuring national security.The national security exception clause is an exemption reason for taking restrictive measures on data transmission.The application of this clause has both advantages and disadvantages.On the one hand,the national security exception clause can indeed play a role in protecting national data security,but on the other hand,in practice,individual countries will use national security as a pretext to conduct trade protection,and excessively restrict data transmission by abusing the national security exception clause,ultimately damaging the legitimate interests of other countries or their enterprises.In China’s legislation,Article 2 of the National Security Law gives a preliminary definition of “national security”.Laws such as the Cyber Security Law,the Personal Information Protection Law and the Data Security Law,as well as the regulations and standards issued by relevant departments,also further stipulate the national security exception clauses in the cross-border flow of data,but these clauses still have problems such as vague wording of the text.In this context,how to improve the national security exception provisions for cross-border data flow according to China’s national conditions to enhance the level of data protection in China is the core issue to be discussed in this paper.This thesis summarizes the significance of extraterritorial legislation for China’s relevant legislation by studying the legislation and precedents of the national security exception clauses in the EU,the United States,WTO and other existing international free trade agreements,and put forward suggestions on the improvement of national security exception clauses in cross-border flows.The text can be divided into four parts as follows:The first part starts with the Chinese legislation situation,and points out the issues of security exception clauses in China by sorting out the national security exception clauses involved in China’s domestic laws,regulations and free trade agreements concluded internationally: first,the concept of“national security” is vague;second,in the field of cross-border data flow,there are disputes about directly invoking national security exceptions;third,the safeguard mechanism of national security exception clauses in crossborder data flow is lack of operability.The second part defines the identification and interpretion of so-called national security by analyzing the origin and legislative evolution of the concept of national security in the exception clause of national security,and combining the legal interpretation of the concept of “national security” in the specific cases of the WTO dispute settlement expert group and the different implications presented in the context of trade war.The third part analyzes the applicable conditions of national security exception clauses in the cross-border flow of data.On the one hand,it analyzes the legitimacy of a country’s regulation of WTO national security exception clause through evolutionary interpretation and purpose interpretation;On the other hand,citing the opinions of the WTO Dispute Settlement Expert Group in the adjudication report,this paper analyzes the applicable standards of the national security exception clauses in specific cases,with a view to making suggestions for the applicable standards of the national security exception clauses in the cross-border flow of data in China.The fourth part analyzes the safeguard mechanism of applying the national security exception clause.The key to ensuring the application of China’s national security exception clauses in the cross-border flow of data is to improve the rules and regulations for the cross-border flow of classified data and improve the data exit security evaluation system.