A Differentiated Approach to Cross-border Data Flows in the Hainan Free Trade Port: A Comparative Perspective with the Guangdong-Hong Kong-Macao Greater Bay Area

Abstract

In the process of constructing a data governance system with Chinese characteristics for free trade ports, Hainan faces the dual challenge of balancing national data security with the highest level of openness. Unlike the Guangdong-Hong Kong-Macao Greater Bay Area (GBA)—which operates under the “one country, two systems, three legal jurisdictions” framework and centers its cross-border data strategy on “data crossing the river” (i.e., data flows among Guangdong, Hong Kong, and Macao)—Hainan’s island-wide customs closure and the legislative authorization granted by the Hainan Free Trade Port Law of the People’s Republic of China enable it to pioneer a more holistic and flexible regulatory model characterized by a “data customs” regime. Through comparative analysis, this paper examines the fundamental differences between Hainan and the GBA in institutional foundations, regulatory units, and core policy objectives. It argues for the legal legitimacy and practical feasibility of a differentiated path for Hainan—one grounded in a robust data classification and grading system, centered on a “certified data processor” regime, and piloted through a “cross-border data regulatory sandbox.” This approach aims to provide a systematic legal blueprint for Hainan to develop a secure, free, and efficient “Free Trade Port Model” for cross-border data flows.