The Dual Foundation of Cybersecurity Legislation

Abstract A number of countries have hastened to pass legislation that protects their cybersecurity, with a consequent trend of cyberspace nationalization. However, as this trend intensifies, the contradictions inherent in the cybersecurity order become more striking. This stems from the fact that the legislative purpose of closed national legislation is difficult to achieve in the face of trans-personal, trans-national and trans-spatial cyberspace. What underlies these contradictions is the dualistic thinking of physical space vs cyberspace. The differences in the understanding of data between the Cybersecurity Law of the PRC (2016) and the Data Security Law of the PRC (2021) are heavily influenced by this line of thinking. Therefore, we need to return, inter alia, to the trans-personal, trans-national, trans-spatial nature of cyberspace itself to reflect on current cybersecurity legislation in China. On the basis of clarifying the dialectical relationship between sovereign states and the community with a shared future in cyberspace, we should establish the dual foundation of cybersecurity legislation and construct a set of fundamental norms for such legislation that contains legislative ideas, basic principles, and legislative system components.