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The privacy battle over cross-border data flows just went up a notch

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Until the election of Donald Trump last year, multilateral trade deals were a key element of global politics, and affected many aspects of the digital world. Indeed, as the Internet moves ever-closer to the heart of commercial activity, so the importance of digital business has increased, and trade deals have become an important forum for governments to lay down global rules in the online world.

One example is the Trans-Pacific Partnership (TPP), which aimed to bring together 12 countries around the Pacific in a wide-ranging agreement about how trade would be conducted. It included a number of measures affecting digital trade, among them “enabling cross-border data flows”. Although technically such flows are straightforward – it’s what the Internet does – problems can arise because of privacy considerations. Jurisdictions with high levels of privacy protection are often unwilling for personal data to flow to other countries where protections may be lower.

The US withdrew from TPP as part of a general re-evaluation of trade deals by the new administration. The status of two other major trade negotiations involving the US, both which include data flows, is currently unclear. One is the Transatlantic Trade and Investment Partnership. The most recent report from the US Trade Representative, published in January this year, notes: “We still have significant work to do to resolve our differences in several important areas of the negotiations”. One of those is “how to structure commitments on data flows that will reinforce the essential electronic commerce and digital infrastructure of our economic relationship while respecting legitimate concerns about protecting privacy”.

The other major deal is the Trade In Services Agreement (TISA). This, too, is currently in limbo, waiting for a

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