鄂ICP备09005423号-7版权所有：中国法制发展战略研究院
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中南财经政法大学代表团《依法治国与互联网立法》专题研讨会
发布时间：2016年08月08日
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点击次数：515次
Session Information
Rapporteur Name(s): Catherine Alexandrina Nakayenga, Obioma Uchechi
Interpreter Name(s): Fan Wang; Huishi Hu; Liying Zhang; Yuan Zhang; Marwa Mhamdi; Eman AlSharkawi; Raquel de Pazos Castro; Eva Pacios Santamaria
Approximate Number of Attendees: 50
Summary: Session 203: Rule of Law and Internet Legislation. Reflections on Web Security Legislation in the Big Data Era - Professor Xu Han-ming. I. Challenges to China’s internet security legislation in the big data era. It refers to information asset that has high volume, high growth rate and high diversity and that requires new processing mode to satisfy the need for decision making, insightful discovery and procedural improvement. It bears basic characters of high volume, diversity, low value density, and fast speed. Ever since Gartner Group raised the concept of “Big Data” in a study report in 2001, the concept has gone through the stages of logical judgment, systematic thinking and wide use in the human society’s various areas of politics, economy, culture, military and social life. It started a new era of human society’s use of information, production of information tools, progressing from modern industry to information society, and building information civilization. Big data is changing people’s life, appearance, conduct, decision making mode, and is even influencing and changing a state government’s governance and social service concerning its purpose mode, conduct policy and technology measures. It has become a key element to enhance a state government’s creditability, and has also become a basic and indispensable tool to handle the international affairs among the states to achieve “mutual connection, mutual link, mutual enjoyment, and mutual administration”. Big Data is like a two-edged sword, and its adverse impact is also worth noting. (1) At the national information security level. Controlling rights over huge volume of information are in the hands of only a few developed countries, and it becomes a phenomenon threat to other countries’ national security. Many countries have consequently upgraded national information security to national strategy and have taken actions. (2) At economic and trade security level. Under economic globalization, big data is widely used in the areas of international goods trading, investment, intellectual property, and finance. It has become a key platform for international economy and even business trading. Quite some multinational companies conduct cyber spying to obtain business intelligence due to fierce international market competition, and caused distorted market competition and brought threat to enterprise security in the areas of manufacture, investment and trade. (3) At citizens’ personal data and property safety level. On the one hand, big data has brought more options for citizens to fully realize their rights and protect their properties. On the other hand, big data presents challenges to citizens’ personal data and property security. With wide spreading of internet, it changed people’s living and brought new platform for economy, culture and social life. At the same time, it also brought big challenges to national governance system and modern governing competence. The weakness of cyber space security law barrier has become a more
significant issue, mainly in the following aspects: Firstly, cyber space infringement spreads without restriction. Secondly, unfair competition on the cyber space has become more and more serious. Thirdly, illegal online behavior caused serious threat to national security. (4)Weakness in internet security core technology has become the weakness of internet security barrier. Fifthly, internet security legislation is comparatively lagged behind, and the boundary in internet production, transaction, regulation, service and user norms are weak and unclear. In China, on the one hand, the basic internet laws and statutes established include over 20 laws particularly regulating the Internet. All those are great progress that attracts world’s attention. On the other hand, the laws and statues on internet security are not of high priority. how can international communication and cooperation be strengthened concerning internet security system construction through internet technology, and how can internet security be further promoted through information elements, technology elements, modernization and internationalization. II、Comparison and revelation of the international internet security legislation in Big Data Era. The developed countries took advantage of technology development and application, with the initiative of safeguarding national security, timely studied the introduction of the national information security strategy and relevant laws. The internet security management of developed countries has changed, from policy guidance to the legal regulation, policy adjustment, technical specifications, control---using, personnel support and comprehensive strategies. It showed standardized, institutionalized and systematic modern features, which provided guideline and path to developing countries to improve their legislation. In order to implement the decision of the Fourth Plenary Session of the eighteenth Central Committee of the Communist Party and materialize its solemn commitment to the world that government promote open government information, strengthen construction of government information Internet Data Services platform and convenient service platform, curbing internet security breaches, On 19 November, 2014, China held the first World Internet Conference in Wuzhen, Zhejiang province. More than 1,000 global Internet leaders from nearly 100 countries and regions attended. The conference established the "interoperability share cohabitation" theme, and express the will to the world that we hold mutual respect, mutual trust principle to deepen international cooperation, respect for the sovereignty of the internet, maintain internet security, work together to build the peaceful, safe, open and cooperative internet space, set up multilateral, democratic and transparent international Internet governance system. With national internet security perspective，focusing on the international community of internet security incident response way and our legal mode of internet public emergencies disposal, we find two paths. On the one hand, we should, actively involved in project cooperation within the legal framework of the United Nations. In order to promote the development and progress of human beings and safeguard the equalization of the human inherited right to subsistence and development, international organizations should speed up the legislation and norms of internet security. Legal norms of internet security should be formulated, which should include “clear right and responsibilities, compact structure,
complete system, full function”, and should be able to ensure the efficient and authoritative legal protection of internet security . The legislative mode and system design is to build the law framework according to the Socialist legal system with Chinese characteristics and accelerate “four modernizations”: standardized and institutionalized, systematic and legalized construction, and in turn form a internet security legal system with Chinese characteristics. To build a internet security system needs to grasp certain core elements of its legal aspects. (1) Strengthening the regulation of the critical infrastructure internet vulnerability monitoring; (2) Enhance the ability of the government and society to deal with the cyber threats. (3) Encourage private enterprises, social organizations, and grass-roots community to get involved in internet security practice. (4) Insist on the protection of privacy, civil liberties and rights of nation. (5) Focus on the top-level system design, make long-term national information security strategy, and form internet security polymeric system with the following core elements: ①Information security technology standard certification system; ①Self-regulatory system of information security; ①Information security access, use, and protection system; ① Enforcement and supervision mechanism against infringement; ①Information security standard system of laws and regulations. Only through the building of the national security legal system, a complete system with reasonable structure, multi-level functionality, and effective-safeguard, can the national internet security become legalized and modernized. III. Purpose, structure and mode selection of Internet Security legislation in the Big Data era. (I) Broaden study perspective on internet security legislation. (II) Establish network security management model. (III) Clarify the focus of internet security legislation. (IV) Choose legislation path of internet security. (V) Build the frame of the Network Security Law, which mainly includes the following aspects: 1. General provisions. It is necessary to define the legislation’s objective, regulatory goals, jurisdictional limit and basic principles of enforcement. Basic principles include principles for coordination and balance between national security protection and personal freedom, grade protection, cooperation for joint governance, and technical innovation, etc., which can highlight scientific features of the network security law. 2. Establishment and responsibilities of network security administration. 3. Definition of behaviors endangering internet security and internet order. It is involved in not only distinguishing between legitimacy and non-legitimacy, compliance and non-compliance, legality and illegality. 4. Internet suppliers’ obligations for maintaining internet security and internet order. 5. Legal liabilities. Internet law violation and even internet crime have their own legal subject and object. The components of subjective factors and behavior mode are the qualification elements in assumption of legal liabilities for internet law-breaking behaviors and even internet crimes. With the lack in any of the aforesaid elements, the subject assuming legal liabilities should not be constituted. It is hard to be evaluated by law and to be held liable by law enforcement organs and judicial organs. The experience in protecting the dignity and authority in rule by law in internet governance and in promoting legalization of internet governance provides people with a new prospect and
implementing mechanism for internet source governance, systematic governance and multi-level governance. These measures restrict the power exercising subject provided in internet security law by systems and prevent power abuse by the subject. Accordingly, internet security law should focus on governance, prevention and control of illegalities for personal gains, abuse of power for personal gains and misuse of authority, etc. by law executors and judicial practitioners. If the working personnel of internet security supervision department misuse authority, misconduct in office, commit illegalities for personal gains or disclose national secret, business secret or personal information that are known to them during law enforcement, which constitute a crime, such situation should be included in normative system of the internet security law which should contain clauses regarding investigation of administrative liabilities and criminal liabilities in accordance with the law, so that law executors will conscientiously abide by law and become constructors, promoters and protectors of internet governance by law. (VI) Promote international cooperation in internet security. Internet security and law guarantee is a new topic across the world, which requires close international cooperation for interconnection, sharing and joint governance. Chinese Chairman Xi Jinping has proposed the establishment of a multilateral, democratic and transparent international Internet governance system, which symbolizes Chinese government’s definite attitude towards protection of state sovereignty, security and interest development, reflects China’s sincere desire to commit itself to the international community’s construction of a “peaceful, safe, open and cooperative internet space”, and displays the favorable responsibility-taking image of China as a responsible great power. China is one of the members of the global village. Observing the UN’s international pact for utilization and security of the Internet is the persistent standpoint of Chinese government, which is also the responsibility that should be assumed by China as a sovereign state of Internet agreement. Positively participating in the draw-up of internet technology application rules as organized by the United States and international organizations and in the stipulation of internet security rules indicates China’s responsibility assumption during its evolution from a big internet country to a powerful internet country; participating in disposal of international internet security accidents and judicial assistance as well as punishment and prevention of internet crimes especially internet terrorist activities are the inevitable choice for international cooperation in internet security, joint promotion of international internet governance, sharing of internet development achievements, protection of the new order of international internet governance, enhancement of global human civilization, and promotion of the internationalization level of internet governance. They will also become the “new ordinary state” of China’s participation in international internet affairs. We will spare no efforts to follow Chinese government’s claim in the First World Internet Conference and expect that all governments, experts, scholars and outstanding entrepreneurs will positively respond to the claim: all villagers in the global village in this macro-data era should, from both concepts and actions, “promote interconnection of internet space, respect all countries’ internet sovereignty, jointly maintain internet
security, jointly carry out internet anti-terrorism, promote development of internet technology, vigorously develop Internet economy, widely transmit positive energy, care for teenagers’ healthy growth, and stimulate sharing and joint governance of internet space”. We are absolutely convinced that a macro-data era that benefits the human society will be bound to accelerate the leap-forward development of economy, politics, culture, society and ecological civilization of all countries, and endow this era with implantation of brand-new concepts, growth in great fortunes, integration of colorful cultures, development of diversified civilizations, and acquisition of multi-dimension human welfares. Laws on Protection of Personal Property - Professor Mei Xia-ying Personal information abuse affects our society in a negative way. The "Theory of Information Protection" suggests if personal information is not protected, it will have a negative impact. Some of the key factors of Information Protection are the "Degree of Relevance" and "Influence of Age of Subject of Information". We can establish/formulate the International Protection Law by knowing that internet security is relative and not absolute, so a law that works for one country may not work for another. China has come up with a framework of internet legislation laws that are a framework for other laws. Intelligent Governance: Innovative Social Governance Mechanism in an Information Society-Dr. Zhang Ziyi School of Public Administration of Zhongnan University of Economics and Law Intelligent governance of community pays more attention to the governing status of community members in governance, the introduction of intelligent governance concept, realization of constructing an open community involving participation and services, realization of trans-regionally cooperative and shared governance with more openness, interaction, and de-identification, though it relies on government organization and information construction during the course of providing service. The value orientation of community intelligent governance is democracy and good governance. Intelligent governance drives community governance to shift from being driven by traditional government functions to being guided by citizen personal demands. Mode selected by community intelligent governance maybe the shared governance. Community intelligent governance empower individuals, which makes citizens turn into governing body from being governed, and underlines the timely response to individualized demands of citizens. Technique support the function realization of community intelligent governance. Virtual community is featured with intangibility, anonymity, freedom from region and time. In a virtual community, interaction is realized through transmission vehicles such as texts, pictures, videos, etc. other than traditional face-to-face verbal communication. Voices can be heard timely, cost of interaction between people greatly reduced. However, information can be of varying quality, even fake, due to virtual governing bodies on internet and explosive information spread.Therefore, the government shall timely diagnose and control, and enhance public opinion guidance at the same time to ensure that online public opinion evolves in the right and reasonable direction during community intelligent governance. The value and vigilance of the “Right to be forgotten” Dr. Lin Biheng "The right to be Forgotten" is a right to have an individuals personal information deleted permanently
from an information controller and to be forgotten by the internet unless there are legitimate reasons for keeping that information. The right to be forgotten has two sides, a positive side and a negative side. On the positive side, the right to be forgotten helps to protect individuals privacy and enhances their freedom of speech. On the negative side, the right to be forgotten may remove information that governments and intelligence organizations use to track down terrorists and crime-doers. The Path Selection of the Legislation of the "Right to be Forgotten" - Ms. Hu Ting The topic is the path to the legislation of the right to be forgotten in China. Base on the national condition of China, five aspects of its subject, object, content, applicable exception and legal liability should be considered. China ought to bring more clarity and legality to the right to be forgotten, to cope with the urgent demands of personal information protection in the era of big data and adapt to the rule of law. We should establish a governance system through multiple angles that coordinates the legal, technological and market measures, ensuring the right to be forgotten can be properly realized, and contribute to the protection of personal data.
Subjects the session will cover:
Cyber Crime
Justice Reform
Rule of Law
Summary of the Meeting:
Desired Interpreter Languages:
English
Chinese
Speakers
Moderator
Name: Eduardo Vetere
Email: eduardo@vetere.info
Resume: Vice President of the International Association of Anti-Corruption Authorities, Former Director of the Division for Treaty Affairs, United Nations Office on Drugs and Crime (UNODC)
Speaker
Name: Hanming Xu
Email: 1951105888@qq.com
Picture:
Resume:
Dean of Centre for Legal Development and Judicial Reform of Zhongnan University of Economic And Law, Dean of Hubei Strategic Academy of the Rule of Law & Development, China
Speaker
Name: Xiaying Mei
Email: mxying2002@aliyun.com
Picture:
Resume:
Professor, Chief Expert of Centre for Legal Development and Judicial Reform of University of Economics an Law, P.R. China
Speaker
Name: Zi-yi Zhang
Email: 827488300@qq.com
Picture:
Resume:
Assistant Professor, Tutor for Graduate, School of Public Administration,Zhongnan University of Economics and Law, P.R. China
Speaker
Name: Biheng Lin
Email: linbiheng@qq.com
Picture:
Resume:
Phd Candidate, Procedural Law, Law school of Zhongnan University of Economics and Law, P.R. China
Speaker
Name: Ting Hu
Email: shirley.tinghu@gmail.com
Picture:
Resume:
Junior Research Fellow,Centre for Legal Development and Judicial Reform, Zhongnan University of Economics and Law, P.R. China
Publication
ContactName: Hu Ting
Organization Name: Zhongnan University of Economics and Law, China
Email: shirley.tinghu@gmail.com
File Title: Rule of Law and Internet Legislation - Powerpoint Presentation
File Description: Reflections on Web Security Legislation in the Big Data Era
Tags:
Cyber Crime
Rule of Law
Justice Reform
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http://www.un-congress.org/Sessions/View/54ef754d64ceab3090ad443d