Key Points of Singapore’s New Cybersecurity Act 2018

On 5 February 2018, the SG Parliament has passed the Cybersecurity Bill after it is significantly revised based on results of public consultation.  Below is a note of key points in the new law:

Critical Information Infrastructure (“CII”)

The new law limited the definition of CII to computers or computer systems that have been expressly designated as such by the Commissioner of Cybersecurity (“Commissioner”).

Its owner is defined to be legal owner or co-owner, which does not include someone who effective control or responsibility for its continuous functioning.  However, the Act introduces a mechanism allowing a person who has received a notice from the Commissioner designating a computer or computer system as a CII to request that the notice be instead sent to a third-party after showing that only that person has effective control over and the right to change the system.

Any change in beneficial or legal ownership (including any share in such ownership) must be reported not later than seven days after the date of change in ownership.   This is more practical than the bill, in which the change of ownership should be reported 90 days prior to the change.

The Act requires audits at least once every two years and risk assessments once a year.

The Cybersecurity Act requires owners of CII to report “prescribed” cybersecurity incidents or any other incidents specified by the Commissioner.

The Act removes vaguer reference to “recommended technical standards” in the context of the standard of performance expected from owners of CII.

Under the Cybersecurity Act, penetration testing and managed security operations centre (“SOC”) monitoring services cannot be performed without a licence.  A company does not require a separate license if a related company already has such a license.

A licensee must now only keep records for three years.

Any person to whom a notice for information is issued (by the Commissioner) is not obliged to disclose information protected by law, contract, or the rules of professional conduct.

 

 

Data Privacy under the PRC Network Security Law and the Draft PRC E-Commerce Law

First, here are some slides for quick reference if you are lazy and don’t want to read.

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The PRC Network Security Law (“NS Law”) has come into force on June 1, 2017. This law provides certain provisions in relation to the data privacy. Some of them appear to be beneficial to the individual data owners, whilst some others may be counter-productive to the protection of data privacy.

In parallel, the legislative branch of the Chinese government has published a draft PRC E-Commerce Law (“Draft EC Law”) for public consultation in December 2016.  This draft law has not yet to be passed by the PRC National People’s Congress (NPC) to become effective. However, its provisions have reflected some basic attitudes of the Chinese authority towards the protection of data privacy.

This essay sets out and provides my comments on the key provisions with respect the data privacy under the NS Law and the Draft EC Law.  In order to make readers digesting these laws easily, I will apply Daniel J. Solove’s theory of categorization of the data privacy issues.

1. Data Collection and Aggregation

“Aggregation” means the gathering of a person’s data from different sources and then combining them to form a clearer image of the person.

  • Art. 22.3 of the NS Law: ISP cannot collect its users’ personal information without the expressive consent. Art. 41 of the NS Law: ISP shall publish the rules, purpose, method, and scope of collection of personal information. No collection without users’ consent.[Comments: (i) These provisions do not distinguish “collection” and “aggregation”.  (ii) As a result, although these provisions have clearly required an operator to obtain consent before collecting its users’ information, they did not address the issue whether a third party can search and aggregate personal information (either from the public domain or from the first-hand data collectors.)]

2. Surveillance

Surveillance means the act or system enabling the government or a company to monitor user’s activities (“Big brother is watching you”).

  • Art. 51 of the Draft EC Law obliges E-commerce business operators to provide data to government authority (although it also said that the government authority should adopt “necessary measures” to protect data security).
    [Comments: (i) This provision legitimized (rather than prohibited) the surveillance practice.]
  • Art. 21.3 of the NS Law: ISPs are obliged to monitor and record user’s activities and should keep records for no less than 6 months.
    [Comments: (i) this could be counter-productive to protecting privacy from the individual data owner’s perspective; (ii) the 6 months storage obligation is not new in China, but the NS Law makes the compliance to be a necessity (at least on paper). ]

3. Identification

Identification means to identify a particular person or a particular group of persons by data analysis.

  • Art. 42.1 of the NS Law: No sharing of identifiable personal data without consent. Art. 50 of the Draft EC Law: an E-commerce business entity is obliged to take protection measures to ensure anonymity before it shares the e-commerce data with another E-commerce business entity.[Comments: Article 42 of the NS Law first prohibits business operators from divulging personal information to a third party. Then it says that if the data cannot identify a particular person, then it is fine to transfer without the data owner’s consent. Article 50 of the Draft EC Law has generally kept consistency with the NS Law on this regard. ]
  • Art. 45 of the Draft EC Law confirms that the buyers have autonomy over their personal data; it also defines the personal data with a detailed list, such as name, ID certificates number, address, contact details, information of geographical location, bank card info, transaction records, payment records and records of accepting logistic services.[Comments: The Draft EC Law did not distinguish the “private personal data” and the “business personal data”.  In some countries, use and aggregation of the business contacts (e.g. office telephone numbers, office email address and other info shown on a business card) may enjoy certain exemptions.]
  • Art. 46 of the Draft EC Law first provides that collection of personal data requires user consent; then it prohibits the denial of service due to the user’s refusal of providing personal data.

4. Disclosure and Insecurity

Disclosure means the data holder’s own act of disclosing the private facts. Insecurity means the situation that the data is attacked and stolen.

  • Art. 21. 2 and 21.4 of the NS Law request ISP to take technical measures to protect its system from attack; ISP also needs to classify, backup and encrypt data.
  • Art. 22.1 and 22.2 of the NS Law request ISP to take remedial actions when its system is in risk; provide security maintenance during the term of service. These provisions also generally requested the producer of network security products or services to report the authority about the data breach.
  • Art. 27 of the NS Law generally prohibits hacking acts. It also prohibits the assistance of hacking practice, such as tech support, advertising, and settlement of payment.
    [Comments: The provision did not clarify if the “assistance” means knowingly assistance. It also did not clarify if “constructive knowledge” also applies to this provision.]
  • Art. 42.2 of the NS Law requests ISP to take technical measures to protect data from disclosure, damages or loss. It also mentioned that the data holder shall report the data breach to the relevant authority.
  • Art. 49 of the Draft EC Law provides that e-commerce business entities must establish rules and technologies to prevent disclosure of data. It also provides if there is a data breach, the e-commerce business entity is obliged to (i) take remedial measures, (ii) notify the users and (iii) report to government authorities.

5. Exclusion 

Exclusion means the act/rule disabling/excluding a user from maintenance and deletion of his personal data from the system. The reason for deletion can be either those data are objectively outdated or the data owner simply changed its mind of disclosing the data.

  • Art. 43 of the NS Law: User has right to request deletion if the service provider’s collection or use of personal information in breach of the law/agreement; or there are mistakes in the personal information.[Comments: According to this provision, if there is no mistake in the personal information and the service provider does not breach the contract, then the data owner will not have right to remove the data he/she has provided to the service provider. It is not clear whether “mistake” herein includes “outdated”.  However, it seems clear that data owner would have lost an absolute right of deletion.]
  • Art. 47 of the Draft EC Law: provides that when a user requests correction or supplement of his/her personal information, the E-commerce business entity should correct or supplement the information accordingly.
  • Art. 48(3) of the Draft EC Law: provides that a user has right to delete its personal information. However, such right of deletion only arises (and is only mentioned) upon lapse of agreed / statutory term of preservation of personal data.

6. Increased Accessibility

Increased accessibility means, without the consent of the personal data owner, making the information that is already available to the public EASIER for a wider scope of the audience to access.

E.g., a buyer’s review of a particular product is usually made available to the public.  However, the buyer might not want his friends or colleagues to know that he purchased such product.

Neither the Draft EC Law nor the NS Law has provision preventing increased accessibility of data.

7. Blackmail, which means using a person’s personal data to blackmail him/her.

In e-commerce scenarios, it is possible that an e-commerce vendor may blackmail a buyer with the buyer’s personal records when the vendor gives a negative review of the vendor’s product. The Draft EC Law has no provision preventing such blackmails.

8. Distortion

Distortion: means disseminating false and misleading information to manipulate the way a person is perceived and judged by others.

  • Art. 42.1 of the NS Law provides that service providers cannot distort personal information. But this appears to be too general.
  • Art. 52 of the Draft EC Law stipulates that the state should promote all e-commerce business entities to ensure that information is accurate and reliable etc.

9. Second Use

Second use means the use of data for purposes unrelated to the purposes for which the data was initially collected without the data subject’s consent.

  • Art. 52 of the Draft EC Law provides that the State shall establish public data sharing mechanism. Such mechanism necessarily involves the second use of data. However, no guidance or rules are provided in relation to second use except to the extent that the State should ensure e-commerce business entities shall protect the liability, security, and authenticity of aggregated data.

 

Draft PRC E-Commerce Law: Compliance Check

Below are a few slides reflecting the result of a compliance check of the leading e-commerce service providers’ user terms or privacy policies (sorry I will not disclose their names).  The survey was conducted under the assumption that the provisions in Draft PRC E-Commerce Law (as published for public comments on December 27, 2016) will be effective.

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Integrating the Cultural Diversity into the Welfare Theory: What We Should Acknowledge in the Debates

IP & Creative Industry Series:

Integrating the Cultural Diversity into the Welfare Theory: What We Should Acknowledge in the Debates

Executive Summary

Other than listing out the “advantages” and “disadvantages” of each school of the IP theories, this essay tries to apply the theories into two controversial topics: (a) traditional knowledge and (b) copyright reform.

This essay argues that, while each of the four mainstream IP theories has their “functions” in policy forming, the welfare theory brings a platform for stakeholders in different sectors and countries. However, without appreciating the diversity of culture and the variety of people’s demands to the good life, it would be hard to reach consensus on basic aspects of the IP law reform, not to say building a legal system that is adaptive to the fast-developing technologies.

The next section of this essay addresses the hype in the protection of “traditional knowledge”. I will argue that, while the “fairness” theory and the “personal hood” are used to support their arguments, parties of debates appear to cite these theories with utilitarian purposes. The platform of conversation was actually built on the base of welfare theory.

The third section discusses the copyright reform by reviewing the history of Chinese copyright laws. I will argue that he driving force of copyright reform in developing countries are utilitarian purposes. Personhood and fairness theories are used by policy makers to decorate their arguments. Social welfare integrated with cultural perspectives is indeed the driving force of legal reforms.

Debates on Traditional Knowledge

Among others, debates relating to traditional knowledge focus on two aspects of sub-topics. One is about the protection or using of traditional culture heritages in contemporary arts or entertainment contents; the other focuses on using certain community’s knowledge in medical or other scientific developments.

To support their arguments in “creating new laws to protect” the indigenous communities from free use of traditional knowledge by current content industry and pharmaceutical industry, people cite theories from different schools of IP theories. For examples:

  • using labor-desert theory to argue that the culture heritages should be owned by the original group of people and their descendants;
  • using distributive justice theory to argue that enabling indigenous people with certain IP protection to their cultural expressions is a mechanism of redistribution of wealth;
  • using personhood theory to argue that because traditional knowledge manifests the personalities of their creators, the IP laws should admit the interest of the descendant’s of the creators.
  • On the other hand, people against the new exceptions and laws for the traditional knowledge also cites various theories purposely (if not randomly). For examples,
  • using the “public domain” theory (which derives from the Lockean theory) to argue that traditional knowledge protection will “encroach the public domain” and thus prevents freedom of idea and discourage the innovation;
  • using personhood theory to argue that, because all persons must be enabled to express themselves artistically, the low should recognize increasing dependence of creativity upon re-use of existing knowledge;
  • using the welfare theory to argue that, because it is hard to identify the ownership of traditional culture, creating new laws for them will not provide welfare to the whole society; and
  • using the autonomy theory under the culture school to argue that people should not be bound to choose a particular traditional culture.

By observing the above arguments, one may find that arguers on both sides appear to flip their positions on various IP theories and cite “useful” ones to support their arguments respectively. In particular, a very interesting phenomenon is that the “public domain” theory, whose arguers are generally opposing restriction of the public use of the traditional knowledge, is controversially preferred by developing countries in their arguments in favor of the exceptional IP rules for the traditional knowledge. In my view, this flipping of positions per se shows that the arguers are largely base their arguments with utilitarianism.

Then, if people are indeed mostly relying on the welfare theory, why different people have conflicting views on the protection/restriction/exception of the traditional knowledge? The answer can be found from the culture version the IP theory. Different countries have different interest given their regime, geographic location, and history. Within one country, a different group of people also have different interest as well as the preference for good life. Such matrix of diversity makes debates on the traditional knowledge complicated.

Copyright Reform

Similar to the debates on traditional knowledge, the discussion (and legislative practice in many countries) for copyright reform is also complicated due to diversity of interest and the different culture traditions, but on its surface, arguers tend to not acknowledge this reason but like to utilize the social welfare theory (as a tool but not a guiding philosophy), the fairness theory and the personhood theory to justify their positions.

This leads to flips among theories too. For example in the recent discussion on amendments to the PRC Copyright Law, arguers for a stronger power of collective management societies cite the theory of social welfare to support their points. In the meantime, the same group of people may utilize the personhood theory to support the right of lending and the right of withdrawing (with an updated version of work). The fairness theory is particularly popular in arguing that the “remuneration” right is more important than the right to prohibit public from using a work (i.e. the injunctive reliefs).

There are researches showing that even in European countries, incentive theory, instead of the “personhood rights”, is the main power driving the creation and development of copyright laws. Respect to moral rights is largely a tradition derived from the logic of the continental civil acts. In other words, traditions and cultural factors are more important in forming the social views on copyright protection and the scope of fair use.

This is also the case in China, historical evidence shows that Chinese culture does not have a tradition of “property” that stresses the prohibition rights. In the meantime, providing high remunerations to the authors (either by the government or private users) is a continuous tradition. This explains why the injunctive reliefs are less supported in Chinese courts and why China has developed remuneration rules even during the years of 1960s-1970s. This also explains why in the regulations on protection of the right of communication through information networks, the law makers have provided generous fair use exceptions to use of works for remote education and for poor regions.

Conclusion

By observing the debates in traditional knowledge and the driving force in copyright reform, this essay concludes that the social welfare theory derived from utilitarianism is the actual driving power in the legal reform.  In addition, diversity of culture and tradition brings different views on the function of the IP regime.  Acknowledging these two points will bring all the arguers to the same table and thus enable us to find the essence of debates more efficiently.