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Mar
27

Did China Quietly Authorize Law Enforcement to Access Data Anywhere in the World?

From: Lawfare

By Susan Hennessey, Chris Mirasola

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Article 9 of the 2016 regulations provides that the police or prosecutors may extract digital data from original storage media (e.g., servers, hard drives) that are located outside of mainland China (i.e., including servers in Hong Kong, Macau, and Taiwan) “through the Internet” and may perform “remote network inspections” of such computer information systems. Remote network inspections are helpfully defined, in Article 29, as “investigation, discovery, and collection of electronic data from remote computer information systems related to crime through the Internet.” The only caveat to this grant of authority is a requirement that investigations be subject to “strict standards.” No guidance is provided as to what “strict” means.

On its face, the regulation indicates that Chinese officials have authorization to remotely search or extract data anywhere in the world, subject only to the limitations of domestic law. This is a dramatic departure from the US view that the ordinary prohibitions on law enforcement operating in a foreign territory without permission apply to the remote search of electronic evidence.

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