Decrypting China's first crack at a Cryptography Law

On 13 April 2017, the Office of the State Commercial Cryptography Administration ("OSCCA") published the People's Republic of China Cryptography Law (draft for seeking comments) ("Draft Cryptography Law") on its website.   The Draft Cryptography Law marks a clear stepping up of the regulatory emphasis in the area of encryption and will, once passed, serve as the most authoritative source of law in the area of cryptography in China.

Prior to the newly released Draft Cryptography Law, the main PRC rules governing encryption equipment and technology in the People's Republic of China ("China" or the "PRC") were the Commercial Encryption Administration Regulations (the "Commercial Encryption Regulations"), which are now 18 years old, and four major relevant sets of rules passed by OSCCA between 2005 and 2007 governing commercial encryption manufacturing, sales, use and scientific development, respectively.

Since then, the need for further legislation has been recognized, and this year the State Council listed the promulgation of a Cryptography Law in its 2017 legislative work plan as one of the "items with an immediate and urgent need for comprehensively deepening reform".  In other words, a high strategic priority. 

The Draft Cryptography Law defines "cryptography" as the items and technologies which are used to encrypt or certify the data and other information through the application of certain algorithms. The scope of the law is broad, covering all aspects of the development and supply chain for cryptographic products and services, from scientific research, manufacturing, use in business operations, importation and export, testing, certification, supervision and management and other such like activities.

OSCCA and its respective local branches are tasked with administering all aspects of cryptography related work under a system of unified leadership, which the Draft Cryptography Law makes a specific point of stating is ultimately vested with the Chinese Communist Party, underscoring the somewhat heavy political and state security overtones of this area.

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