Addressing China’s Technology Policies: Beyond the Whiplash of a ZTE Deal



Samm Sacks | The Lawfare Institute

Among the many crises that have defined this last week has been the whiplash over whether or not the United States and China can come to a deal to avert a trade war. Optimism rose last weekend when Treasury Secretary Steven Mnuchin announced that tariffs on as much as $150 billion in Chinese goods would be put on hold while the two sides negotiated a framework with unspecified “structural” reforms for protecting American technology and to help American companies compete in China. But by Wednesday, hopes were dashed when President Trump announced, “There is no deal.” Meanwhile, congressional opposition intensified to using ZTE—with its irrefutable violation of U.S. law—as a bargaining chip in the broader trade dispute. But by Friday afternoon, Reuters reported that the Trump administration had announced a deal allowing ZTE to resume business with U.S. companies, preventing ZTE from shutting down.

Yet, such an accord is unlikely to address the deeper structural challenges posed by China’s technology policies—particularly for information and communication technology (ICT) sectors—in a lasting, comprehensive way. To be sure, the agreement is tremendously significant for U.S companies and their employees who sell to ZTE. But it does not move us forward on the broader issues, so much as it takes us back to the status quo, while undermining U.S. credibility by indicating that U.S. sanctions are open for bargaining.

For example, maybe a reprieve to ZTE will cause Beijing to restart a review of Qualcomm’s proposed $44 billion deal to buy Dutch chipmaker NXP Semiconductors—a deal that would help Qualcomm’s growth at a moment when the company is positioning itself as a leader in 5G amid growing concerns over Huawei’s dominance. Beijing could also make a concession by rolling back tariffs on U.S. farm products. But ultimately, all this would accomplish would be to get Beijing to walk back its response to the misguided U.S. tariff plan. In short, any ZTE deal will not solve the larger policy questions that remain in front of us.

Last week, I testified before the House Energy and Commerce Committee, Communications and Technology Subcommittee in a hearing entitled “Telecommunications, Global Competitiveness, and National Security.” I discussed the Chinese government’s approach to cyber and ICT policy and what the U.S. government should do about it. Below is an adaptation of my statement for the record.

The Challenge

The Chinese leadership is in the midst of building the most extensive governance system for cyberspace and ICT of any country in the world. A blend of national strategies, laws, regulations, and standards make up President Xi Jinping’s vision of building China into a “cyber superpower” and “science and technology superpower.” Recognizing that technology has advanced more quickly than the government’s ability to control it, Beijing has moved rapidly to construct a policy and legal framework that will strengthen the Communist Party’s hand not just over online content, but also over the digital economy and the hardware and software that undergirds the internet. Xi has repeatedly stressed the need to bolster China’s domestic ICT industry in order to reduce reliance on foreign core technologies.

The build-out of China’s ICT governance system has implications for U.S. companies operating in China, as well as for Chinese investment flowing into the United States and globally. As this system takes shape, U.S. policymakers must have an accurate understanding of its elements and practical effects in order to calibrate the right response. There are substantial challenges from a national security and commercial perspective.

Yet, U.S. and Chinese technology development, supply chains and commercial markets are tightly intertwined in such a way that the United States risks undermining its own economic prosperity and its ability to maintain leadership in technology innovation without a targeted approach. I have three recommendations. First, Beijing is not going to change its ICT policies because of unilateral U.S. pressure. The United States needs to work with U.S. allies and partners to create international pressure on Beijing. Second, Chinese industry is not monolithic. Some Chinese companies are aligned with U.S. partners on regulation that undermines global interoperability and can be local advocates. This means the United States needs to foster channels for engagement with some Chinese commercial companies. Third, since China is going to invest in being a technological leader regardless of U.S. actions, so we need to also play offense by investing in ourselves.

What Beijing Requires of ICT Companies in China

China’s Cybersecurity Law (which took effect in June 2017) is the centerpiece of a much broader ICT regulatory system made up of dozens of interlocking parts. There are three main ICT regulatory concerns for U.S. companies operating in China: “black box” cybersecurity reviews, restrictions on cross-border data transfer, and an overall trend toward localization under the guise of security.

Cybersecurity Reviews

U.S. companies in China now face at least seven different ICT security reviews that can be used for political purposes to delay or block market access. These reviews are conducted by different Chinese government agencies with unclear jurisdictions, with conflicting jurisdiction even within individual reviews. The specific criteria and metrics used in evaluations remain unclear, and in some cases even the entities conducting the evaluations are unknown. As several U.S. industry representatives put it, the reviews are essentially a “black box”: We do not know what they entail and what is required to pass them. Some companies have lobbied the Chinese government to accept international security certifications (such as through International Organization for Standardization) as a basis for compliance, but so far it is not clear if Chinese authorities will recognize these certifications or still require their own reviews. Since there is no transparency into the process, these reviews can easily become political tools, as well as channels for the government to gain access to source code.

The different cybersecurity reviews are as follows:

The Multi-level Protection Scheme (MLPS):

1. MLPS is managed by the Ministry of Public Security (MPS) and has existed since 2006. MLPS will likely undergo revisions as part of the new ICT legal regime, but the nature of the coming changes—as well as how MLPS will be coordinated with other similar security reviews—remains unknown. This review involves ranking networks by level of sensitivity, and then assigning certain compliance obligations.

2. Cybersecurity Review Regime: Among the new reviews with which MLPS will interact is the Cybersecurity Review Regime (CRR) or Cybersecurity Review Measures of Network Products and Services. Issued in “interim” form in June 2017, the measures require network products and services used in critical information infrastructure (CII) to undergo a cybersecurity review administered by the Cyberspace Administration of China (CAC) and other sector-specific regulators. Some industry experts believe that the CRR will involve inspections of the backgrounds and supply chains of network and service providers. The final definition of CII is still pending, and the full criteria for assessments and list of those conducting them are unknown. Without these pieces of the puzzle, the practical implications of this system remain murky. The Chinese government has begun to issue several other documents meant to provide more clarity on the scope of the new review regime. These include the “Public Announcement on Issuing Network Key Equipment and Cybersecurity Special Product List (First Batch),” which outlines a list of products and services subject to the review and certification. There are also at least three relevant standards that have not yet been officially published. Yet, the follow-on product list and standards do little to narrow the far-reaching scope of the CRR. The “interim” document establishing the CRR states that the review will focus on “other risks that could harm national security”— essentially preserving government authority to interpret the scope of reviews however it wants. Again, this is a channel that opens the door for political whim to determine market access.

3. Reviews of Cross-border Data Transfer: There will also be separate security review of data that companies seek to transfer outside of mainland China. The government is in the process of refining the process and conditions under which data would undergo a security assessment under two draft regulations: Personal Information and Important Data Cross Border Transfer Security Evaluation Measures and Guidelines for Data Cross-Border Transfer Security Assessment. The specific scope is not yet clear, but according to industry sources inside China, it is likely that Chinese authorities will take a broad and ambiguous approach to enforcement of this particular review.

4. Cross-border Communications: Although not a security review per se, companies operating in China must have authorization from the Ministry of Industry and Information Technology (MIIT) for using internal company VPN (virtual private network) services. In practical terms, this means that the government reviews and approves the channels that companies use for all of their international connectivity. Requirements issued by MIIT in 2017 mandate that companies only use internal VPN services from licensed providers, which include the three state-owned telecommunications carriers. Cloud service platforms must route communications with their overseas facilities through channels approved by MIIT.

5. Internet Technologies and Apps: New technologies and apps used in internet news/information services also have a new security review process. Service providers must conduct security evaluations before the introduction of new technologies or applications on their platforms, but details are also murky.

6. A Possible Chinese Version of CFIUS: Much less is known about another possible kind of security review of foreign investment that has yet to emerge. China’s National Security Law (released in 2015) suggested in broad language there could be a new body perhaps akin to CFIUS. Though the government has yet to provide further clarification.

Data Localization

Many U.S. firms in China already assume that data localization requirements will become the de facto reality for their China operations. While specific scope of data localization requirements is still in flux, some Chinese companies have already stopped sending their data to foreign companies that had the ability to store and process data within mainland China, despite there being no set requirement for them to do so. There are provisions still in draft form that would require certain kinds of data to be stored within mainland China and require approvals for cross-border data transfer.

Below are the relevant laws, measures, and standards on the issue:

According to article 37 of China’s cybersecurity law: “Personal information and other important data gathered or produced by critical information infrastructure operators during operations within the mainland territory of the People’s Republic of China, shall store it within mainland China.” At the moment, the government is still defining “personal information and other important data” or what sectors fall under “critical information infrastructure” under separate measures and guidelines, but early indications suggest even follow-on directives will be vast and ambiguous. This also underscores the fact that China’s ICT legal framework is best understood as a matrix of overlapping parts. Recently, Chinese officials have been asking U.S. government and business leaders for advice on how to define critical information infrastructure, suggesting the parameters are still in flux and open to interpretation.

Following on the Cybersecurity Law, the Chinese government issued a measure and standard meant to clarify the scope of how restrictions on cross-border data transfers will be implemented. But these follow-on directives are equally vague and leave issues unresolved as different stakeholders within the Chinese system debate their meaning.

First is the “Measures on Security Assessment of Cross-border Transfer of Personal Information & Important Data (Draft for comment),” with which companies have until December 2018 to comply. Several internal versions of the draft have been quietly circulated in the past few months. According to the latest publicly available draft, all “network operators” will be subject to assessments before exporting data out of China. In practice, this could mean anyone who owns and operates an IT network; industry sources report the government may have walked this back recently to focus just on CII operators, but there is still tremendous regulatory uncertainty given that the definition of CII itself is up in the air.

In addition, the National Information Security Standardization Committee (TC260)—China’s cybersecurity standards body—issued a standard to flesh out technical guidelines assessing cross-border data transfers. Yet the language even of this technical standard is extremely vague and far-reaching. The May 27, 2017 version gives a sweeping definition of “important data” that echoes the National Security Law, spanning that which can “influence or harm the government, state, military, economy, culture, society, technology, information … and other national security matters.” “Network operators” could mean anyone who owns and manages an IT network, raising the possibility that e-commerce could be deemed CII given all the personal data held by companies like Alibaba and Tencent. Depending on how CII is ultimately defined, many companies that are not in ICT sectors could potentially fall in scope.

Chinese regulators are now studying how countries like the United States define CII through numerous Track 1.5 dialogues. While regulators are showing a willingness to engage and dialogue, it is not clear how these exchanges will ultimately impact Beijing’s policy trajectory, particularly since Beijing views this as primarily a national security rather than trade issue.

While China’s regulatory regime for data flows looks bleak, it is important to keep in mind that there are also competing voices in China advocating for more alignment with international practices, which should not be disregarded by U.S. policymakers. Key players in China think that cutting off cross-border data flows will hurt the country’s global economic goals; in fact, one of the main reasons why Beijing has yet to finalize the cross border data flow measures is that there has been so much pushback from Chinese industry. For national tech champions like Alibaba seeking global markets and Chinese financial institutions facilitating global transactions, cross-border data flows are a core operational reality..

These voices also exist within the Chinese government as well. For example, Hong Yanqing, who leads the personal data protection project for TC260, writes: “A fundamental consensus has emerged today that data naturally flows across national borders, that data flows produce value, and that data flows can lead to flows of technology, capital, and talent.” These players could be important allies for the United States.

Localization Push under “Secure and Controllable”

Even in the absence of specific regulation, U.S. companies face de facto localization pressures in China. The Xi Jinping administration has emphasized through multiple channels that it seeks to bolster China’s domestic ICT industry to reduce reliance on foreign core technologies, and a report by the National People’s Congress in December underscored the need for China to develop “indigenous and controllable core cybersecurity technology by 2020.” While there is official definition of what the government means by “core technologies,” authoritative documents indicate that the government is doubling down on indigenous development in fields such as advanced semiconductors, operating systems, cloud system, and the hardware and algorithms behind artificial intelligence systems.

For several years, the government has used the phrase “secure and controllable” or “indigenous and controllable” in national strategies and directives as a way to link localization with security. Chinese companies have a competitive advantage when it comes to meeting these new security standards, which puts foreign ICT companies in a weaker negotiating position and adds to pressure that they cooperate with local partners, rather than attempt to go it alone in the market.

The phrase “secure and controllable” has appeared in separate rules and strategies for cyberspace and the ICT industry, including in sector-specific insurance, medical devices, and the Internet Plus sectors (i.e., smart technology, cloud computing, mobile technology, and e-commerce). A requirement for banking-sector IT to be “secure and controllable” was technically suspended, but many report that it still had a negative impact on market share. The phrase is also sprinkled throughout national-level blueprints for ICT development. For example, the 13th Five Year Plan for Informatization calls for “building a secure and controllable IT industry ecosystem.

Because this standard has no single definition, the government and Chinese industry have broad discretionary authority to launch intrusive security audits or reject foreign suppliers altogether as not secure. And while many of these regulations are still pending, Chinese government and industry are already moving forward with informal implementation of the standard, by asking foreign vendors to certify that they are “secure and controllable.”

Why the China Market Matters

Why do U.S. companies stay in such a high-risk and restrictive market? The answer is the size of the market—which accounted for $23 billion of U.S. ICT exports in 2017—and its importance in the global supply chain. In addition, if major U.S. companies cannot operate and offer services in China, then they cede ground to Chinese companies, since customers need to operate globally.

China is not closed to all U.S. ICT firms or those with a digital footprint in the market. But the costs required to operate in China are increasing, particularly in high-tech sectors. Issues include ICT infrastructure—from trouble using corporate VPNs to the need to build local data centers—and lack of transparency around new licensing and security certifications that can be used to delay or block market access. Taken together, these new regulatory risks are now leading companies to reassess the tradeoffs required to make it in this important market.


There are substantial national security and commercial risks to the United States posed by China’s ICT policies and approach to developing its domestic industries. We are correct to address these issues and seek areas where we have substantial leverage with the Chinese government. After all, Beijing does not change its behavior absent external pressures.

The challenge is that U.S. and Chinese technology development, supply chains, and commercial markets are tightly intertwined. A unilateral approach that isolates the United States will undermine U.S. economic prosperity, our technological leadership, and capacity for innovation. In confronting China, the United States must have a clear understanding about the consequences of our actions, and where there will be costs to ourselves.

First, the United States should coordinate with allies and partners to create international pressure on Beijing. Multilateral pressure has proven successful in the past. For example, in 2009 a coalition including the United States, Japan, and Europe combined efforts to pressure the Chinese government to suspend a requirement that screening software (“Green Dam Youth Escort”) with surveillance capabilities be installed on computers sold in China.

Unilateral action will not only compel China to retaliate against U.S. companies, it will make Beijing double down on the very structural problems we want to address. Indeed, the Chinese government has drawn up retaliation lists of U.S. companies in China. U.S. companies with viable domestic competitors in China will be particularly vulnerable, and may see licenses canceled or denied under the umbrella of cybersecurity reviews and certifications, particularly of network products and services. This is not just a commercial issue but a matter of security: many multinationals in China would be forced to rely on Chinese ICT companies for their business operations if US ICT companies left the market.

Second, the United States needs channels to work with those Chinese private sector players whose interests are actually more aligned with those of the U.S. than some may expect. In multiple cases, Chinese industry has been an important ally to U.S. companies on pending regulatory issues. Companies like Alibaba looking to expand into global markets have an interest in allowing data to flow across borders. Because much of China’s ICT regulatory system is still in draft form, the United States now has an important window to work with Chinese industry to push Beijing toward alignment with international best practices. The Chinese government cannot meet its goal of having “big and strong Chinese internet companies” that can compete globally if these players are hindered by their own government. These local champions will become less helpful as trade tensions spill over to affect the broader bilateral relationship.

Third, the United States must play offense by investing in its own research and development (R&D), infrastructure, STEM education, and a capital market that rewards investment. China will continue to invest in closing the technology gap with the United States regardless of our actions, so the U.S. must be able to compete through its own technological and economic leadership.

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