Extraterritorial Jurisdiction Of U.S. And European Data Legislation And China’s Response

In the "big data" era,countries have gradually realized the application dilemma of traditional jurisdiction theory in the field of data governance.Therefore,some countries try to extend the jurisdiction of their data-related laws to outside the territory.Among them,the US "Cloud Act" and the EU GDPR have far-reaching effects.Interpretation and evaluation of the relevant provisions of the above two laws will help our country’s rational understanding and effective response to the extraterritorial jurisdiction of the US and European data laws.The United States expanded the jurisdiction of the "Cloud Act" through the "Data Controller Standards",and set restraint clauses such as the data acquisition of "qualified government" and the "comity analysis" of provider motion to maintain the "balance" of data retrieval between the United States and other countries.However,the restraining effect of the above clauses cannot restrain the jurisdictional expansion effect brought by the "data controller standard".Although the United States has extended the jurisdiction of the "Cloud Act" to extraterritoriality,although it does not constitute a violation of international law,it is suspected of deviating from the concept of data governance in relevant international law documents.The EU has extended the jurisdiction of GDPR to extraterritorial through the "establishment standards" and "target-oriented standards",and at the same time has made useful attempts to define the reasonable boundaries of extraterritorial jurisdiction.This method of clarifying the boundaries of the exercise of power by enhancing the certainty of the law has certain merits,but its role is still limited.Putting GDPR under the analytical framework of international human rights law shows that the EU’s behavior has a certain forward-looking significance.The impact of the extraterritorial jurisdiction of the US and European data law is a sufficient condition for other countries to take legal responses to safeguard their own data sovereignty and improve their own data governance path.This kind of influence has two sides.While it infringes the data sovereignty of other countries,it also provides room for reference for data governance in other countries.In order to deal with the influence of the extraterritorial jurisdiction of the United States and Europe,China starts from both positive and negative perspectives,places localization restrictions on data and adds extraterritorial validity clauses to the data-related laws.However,the above-mentioned countermeasures have caused a series of practical dilemmas,which are mainly reflected in three aspects: the development of digital trade is blocked,the efficiency of cross-border evidence collection needs to be improved,and the issue of legislative limits should be paid attention to.Therefore,in future responses,my country should take into account the maintenance of data sovereignty and the development of digital trade cooperation.While improving the traditional forensics model,it also pays attention to improving the efficiency of forensics.At the same time,it should rationally refine relevant provisions and promote the construction of bilateral law enforcement cooperation mechanisms.