China’s legislature approved its Cybersecurity Law this past November, solidifying China’s regulatory regime for cyberspace and potentially disrupting foreign companies that use or provide telecommunications networks in China. The law takes effect June 1, 2017, and reflects China’s desire for “cyber-sovereignty” (regulating the Internet in China according to national laws, despite the global nature of the World Wide Web). As the Chinese Communist Party (CCP) faces pressure from slowing economic growth and foreign influence, the Cybersecurity Law is one in a series of laws the Chinese government has implemented recently to uphold state security.
Significant Provisions of the Law
Though the wording of the law is vague, it formalizes many current practices and aims to consolidate cybersecurity authority under the Cybersecurity Administration of China. While the government is expected to offer more clarification on the law through implementation rules, how the law is played out in practice will be the ultimate indicator of the law’s severity. These three aspects of the law have the greatest potential to affect multinational companies (MNCs) doing business in China, according to an NACD analysis:
1. Data localization: Article 37 of the law is one of the most contentious and requires that “critical information infrastructure” (CII) operators store personal information and other important data they gather or generate in mainland China to be storedin mainland China. CII operators must have government approval to transfer this data outside the mainland if it’s “truly necessary.” The definition of CII is a catch-all, including public communication and information services, power, traffic, water, finance, public service, electronic governance, in addition to any CII that would impact national security if data were compromised.
Impact: The broad applicability of the CII definition raises the concern that any company using a telecommunications network to operate or provide services in China would be required to store data in mainland China, possibly even affecting those that store data to clouds with servers located outside mainland China.
2. Support for Chinese security authorities: Article 28 requires “network operators” to provide technical support to security authorities for the purposes of upholding national security and conducting criminal investigations. Network operators are broadly defined as those that own or administer computer information networks or are network service providers, which may include anyone operating a business over the Internet or networks.
Impact: The loose definition of “technical support” creates the concern that MNCs will be required to grant Chinese authorities access to confidential information, compromising private information and intellectual property that may be shared with state-owned competitors. Although not stated in the final version of the law, there is also the possibility that companies may be required to provide decryption assistance and backdoor access to authorities upon request.
3. Certified network equipment and products: For network operators, Article 23 indicates that “critical network equipment” and “specialized network security products” must meet national standards and pass inspection before they can be sold or supplied in China. A catalogue providing more specification on these types of products will be released by the government administrations handling cybersecurity. Under Article 35, CII operators are also required to undergo a “national security review” when purchasing network equipment or services that may affect national security.
Impact: Chinese companies and government agencies have historically relied on computer hardware and software manufactured by foreign companies, although this is now shifting in favor of domestic IT products. Opportunities for hacking and espionage put China at risk of losing sensitive information to foreign governments or companies, and China has already started conducting reviews of the IT security products used by the central levels of government. This provision of the Cybersecurity Law demonstrates China’s resolve to mitigate this risk and may pose a significant barrier to foreign IT equipment manufacturers selling products in China.
How Directors Can Prepare
China’s Cybersecurity Law has been criticized by the foreign business community, and, depending on the law’s implementation, it may make doing business in China for MNCs not only more complex but also riskier. Tom Manning, a China specialist at the University of Chicago Law School and director of Dun & Bradstreet, CommScope, and Clear Media Limited, advises boards to consider the effect of the Cybersecurity Law in the greater context of China’s rise: “The Chinese economy is increasingly more self-sufficient. Domestic companies are growing stronger and are more capable, while multinational companies are finding it more difficult to compete.”
Manning suggests boards conduct an overall China risk assessment, with the Cybersecurity Law as the focal point. While some companies may determine the risk of doing business in China is too high, Manning says, others might decide they need to invest more in China to be profitable. Ultimately, creating alliances with domestic firms, who have a greater influence over the government’s implementation of the law, may be key. “Leading domestic companies have a stake in seeing a better definition of the law, and their interests aren’t unaligned with multinational companies,” Manning says. “Chinese Internet companies can explain to the government how the law will affect their business models and be more effective in doing so than Western companies.”
Although how the law will be enforced remains to be seen, boards can consider the following questions when evaluating the impact of China’s Cybersecurity Law:
Are we storing information generated or gathered in mainland China on servers in mainland China? Do we need to create separate IT systems for China-specific data? Are we reliant on cross-border data transfers, and how would we approach this need with the Chinese government?
What is our risk exposure stemming from the potential loss of intellectual property or encryption information as a result of this law? How would our business be affected should our Chinese competitors gain access to this information?
For computer hardware or software manufactures, are we willing to share our source code with the Chinese government?
For technology firms, how does the law alter the playing field for our company to compete in China against domestic firms?
What additional investments do we need to make in order to comply with this law?
The second plenary session this morning addressed an issue that has pervaded nearly every other presentation about doing business at home and abroad. The session, “Doing Business in China,” included three people very familiar with the U.S.-China relationship and they provided some guidance on what an American company may expect when doing business abroad.
Ambassador J. Stapleton Roy, former ambassador to China and head of the Kissinger Institute on China at the Woodrow Wilson Center, began the session with an overview about the “fastest growing economy in the world.” Roy said that China was transitioning in a positive direction, but stressed that the government was still an active player in business relationships there. Due to that active relationship, U.S. government policy and engagement with its Chinese counterparts can have significant effects on a company’s business prospects. Barbara Hackman Franklin, former U.S. Secretary of Commerce, added that the “relationship between the two governments sets a tone for doing business.”
The conversation also touched on several difficulties companies face while doing business in China. John Frisbie, president of the U.S.-China Business Council, offered a list of problems that companies may face, including inadequate enforcement of intellectual property rights; finding and maintaining top talent; and government preference for Chinese companies. On the subject of intellectual property rights, the panelists said that while no company is currently immune from the weak enforcement of rights, especially software and movie companies, the situation is gradually improving. Roy pointed out that China wants to increase their own intellectual property creation and government officials understand that better protection and enforcement is essential to this.
The panelists left the audience with an understanding that the Chinese market has huge potential but there are many complex aspects that must be thoroughly considered and explored before doing business there.
Assumptions about the geopolitical and regulatory environments are critical inputs into strategy-setting. If one or more assumptions prove invalid, the strategy and business model may require adjustment, and whether the organization is proactive or reactive is often a function of the effectiveness of its monitoring process. Protiviti recently met with 22 active directors during a dinner roundtable. The discussion revealed directors’ oversight concerns amid escalating geopolitical tensions and significant regulatory shifts.
The jury is still out regarding what the Trump administration and Congress can accomplish on major policy fronts. What has become evident is that there are many policy initiatives that could have significant impacts on business at home and globally. These initiatives include tax reform, fair trade, energy independence, immigration policy (including H-1B visas), infrastructure investment, employment and labor, and streamlining of governmental agencies, among others.
Regulatory shifts are also possible, including healthcare reform, dismantling Dodd-Frank, and a scaling-back of the Environmental Protection Agency. Regulations could be impacted by cutbacks at several agencies.
Some directors expressed concern over the short-termism of thinking inside the Beltway, as well as longer-term sustainability issues such as income inequality, student debt levels, and pay-for-performance. They also voiced concern about policy decisions that could create talent shortages.
What role does the board play in overseeing developments in policy and regulatory reform, and how often is the board briefed on fresh developments? How are significant geopolitical developments considered?
Several concepts for sound oversight were discussed.
1. A process is required to navigate the effects of policy, regulatory, and geopolitical shifts. This process should include monitoring legislative, regulatory, and global market developments through hiring insiders and consultants; tracking developments in published sources; monitoring geopolitical hot spots; and keeping close tabs on special interest groups. The process also entails engaging legislators, regulators, and policymakers through a variety of communications tactics, and continues with responses to new legislation and regulations through performing impact assessments, updating policies, and modifying existing and implements new processes and systems.
During the roundtable, several directors expressed concern about fair trade and risk of protectionist policies. The new administration appears to be committed to a reset of the North American Free Trade Agreement (NAFTA) and the Trans-Pacific Partnership. It is also focused on addressing trade issues with China. How these policy initiatives play out can significantly affect companies’ operations in or exports to these foreign markets and even transactions with suppliers in these markets.
2. Evaluate strategic assumptions. Every organization’s strategy has underlying explicit or implicit assumptions about the future that represent management’s “white swans,” or expectations about the regulatory environment and global markets. In these times of uncertainty, it makes sense for the board to assess the underlying strategic assumptions in light of likely policy actions by the executive or legislative branches that can impact the regulatory and geopolitical landscapes. If it’s possible that one or more assumptions might be rendered invalid, senior management should assess the ramifications to the strategy and business model.
3. Consider the implications of scenarios germane to the sectors in which the organization operates and prepare accordingly. Management should define plausible and extreme scenarios. The impact of various policy initiatives on the company’s markets, channels, customers, labor pool, supply chains, cost structure, discretionary spend, and business model should be considered. Scenario planning can be useful for formulating response and contingency plans. One major Japanese automaker spent three months following the 2016 election evaluating alternative scenarios resulting from Trump’s policies and their impact on U.S. and global sales. The company formulated contingency plans to pivot should a disruptive change occur, while also embracing the incoming administration as a market opportunity.
4. Prepare for more discretionary spending capacity. The Trump administration is looking to reduce the corporate tax rate significantly, make it easier for U.S. firms to repatriate profits earned and taxed abroad. It also seeks to eliminate the corporate alternative minimum tax and provide special deductions for firms engaged in domestic manufacturing. While these proposals have a long road to being passed, companies should consider how to deploy the hypothetical additional cash flow. Some examples include undertaking new investments, reigniting deferred projects, enhancing compensation to retain employees, and increase dividend rates, among other options.
5. Pay attention to sovereign risk. The primary objective of managing sovereign risk is to protect company investments from risks of impairment and sustain returns on investment (ROI). Investment impairments from confiscatory actions such as nationalization of the business or expropriation of assets may occur. ROI reductions may arise from discriminatory actions directed to the company, a targeted industry, or companies from certain countries in response to American policy. Actions could include additional taxation, price or production controls, and exchange controls. In addition, investment impairments and ROI reductions may occur due to circumstances such as violent political unrest or war. These risks must be addressed by understanding the driving forces of change in countries where the company does business and taking proactive steps to manage exposures.
When high risk of confiscation or discrimination emerges, your company might consider repatriation of cash to the extent allowed by controls and currency conditions. Look at managing down the investment by avoiding additional capital investments, cessation of inventory replenishment from abroad, and financing payroll and other operational functions through local cash flow. Initiating an exit by divesting assets is an option if a willing buyer is available. If necessary and feasible, moving tangible and nontangible assets out of harm’s way may be appropriate. Entering into joint ventures with local and foreign partners may reduce exposure to confiscation risk since the presence of nationals can take a multinational under the radar. If cost-effective, political risk insurance is another option covering the risks of confiscation, political violence, insurrection, civil unrest, and discrimination.
6. Diversify if revenue mix is dependent on government funding. Defense contractors can capitalize on defense spending and materials companies; heavy equipment manufacturers and construction contractors can focus on infrastructure spending opportunities. However, companies and nonprofit organizations with a high dependency on government contracts and federal funding may want to evaluate opportunities to deploy their core competencies in markets other than the public sector. It is not unreasonable to surmise that the new administration and the current Congress will restrain growth in budgets in areas that are not deemed a priority.
As priorities and policy direction become clearer over time, companies can firm up their responses to potential changes in the operating environment. Meanwhile, it is never too early to start thinking about alternatives. Directors should ensure that their companies’ boards are paying attention.
Dig into deeper insights from Protiviti by visiting their Board Perspectives piece on emerging geopolitical and regulatory challenges.