Study On Extraterritorial Data Jurisdiction In China

Currently,the digital economy has entered a new stage of integrating market-oriented allocation of factors with resource utilization,and the control over data will become another core asset of the country beyond sea power,land power,and air power.Cloud computing technology has facilitated the normalization of the separation of data storage and processing equipment locations,and traditional jurisdictional rules are fundamentally incompatible with the ubiquitous manifestations of data.Therefore,the unilateral expansion of countries’ extraterritorial data jurisdiction has become a new trend,and the data field will become a "new chess game" for major powers to play.Extraterritorial data jurisdiction refers to the ability of governments or other legal entities to exercise jurisdiction over data stored outside their borders,which can be divided into three types: legislative,law enforcement,and judicial.The EU GDPR is based on the "principle of effectiveness" as its legislative basis,expanding administrative law enforcement jurisdiction while also indirectly promoting the further extension of judicial jurisdiction.The Cloud Act marks the transition of the United States from a "data storage location" to an extraterritorial criminal law enforcement jurisdiction under the "data controller" standard,and the "California model" represented by CCPA also sets a model for expansion in the United States.Unilateral expansion poses a risk of infringing on the data security of other countries,so the construction of foreign-related rule of law requires higher requirements for maintaining China’s data sovereignty.In terms of legislation,although China uses the "protection principle" and "effect principle" as the connecting points to provide legitimacy endorsement for China’s extraterritorial data jurisdiction,there are issues such as unclear priority order under jurisdictional conflicts,loopholes in application rules,and unclear specific meanings;In terms of law enforcement: due to the territorial restrictions of law enforcement,the natural defects of the representative system,and the difficulty in reconciling the contradiction between traditional evidence collection and data timeliness,the feasibility of cross-border law enforcement is limited,and only relying on unilateralism and ignoring the needs of other countries can not achieve a healthy "sustainable cycle";Judicially,there are still significant differences in the data protection concepts of various countries,and Chinese court judgments may not be effectively implemented due to conflicts with the public order values of other countries.There is no general rule of international law that requires one form of normative jurisdiction to give way to another form.Based on this,China’s extraterritorial data jurisdiction rules should clarify the priority application of protection jurisdiction under major interests,adopt the "establishment standard" to supplement,and issue specific judicial interpretation to improve the application of provisions;Extracting data evidence online does not require law enforcement agencies to enter the territory of other countries directly,and does not necessarily violate national sovereignty.Therefore,China can first target countries along the "the Belt and Road",strengthen law enforcement cooperation among data protection agencies,coordinate cross-border data forensics with the classification and grading system,establish effective accountability and supervision rules,and gradually build a cross-border data law enforcement cooperation mechanism based on multilateral treaties;Finally,in order to ensure the effective implementation of China’s judgments overseas,"market disruption measures" and "negative credit records" can strengthen the internal and external coercive power against illegal enterprises,and ensure the extraterritorial implementation of judicial judgments.In short,we need to reconstruct China’s extraterritorial data jurisdiction to meet the requirements of foreignrelated legal construction.