The Global Data Alliance has issued its Cross-Border Data Policy Principles. These Principles are intended to inform international negotiations regarding the movement of data in international commerce. Stated simply, the Principles urge governments to:
- Recognize the importance of, and continue to favor, the seamless and responsible international movement of data; and
- Ensure that any rules impacting the international movement of data be:
- Developed in a transparent and accountable manner;
- Non-discriminatory;
- Necessary to achieve a legitimate objective; and
- Designed to be interoperable with other countries’ legal frameworks.
COVID-19 has highlighted the importance of sharing data across borders – whether to develop and distribute medical treatments worldwide; to maintain remote connectivity for work, study, and access to goods and services; or to prepare for a return to more interactive working and social lives after the pandemic has receded. Digital networks lie at the heart of today’s interconnected global economy: They support jobs in every country, across every sector, and at every stage of the value chain in billions of transactions every day.
For these reasons, the Principles first recognize the reality of global digital connectivity. Data must move seamlessly and securely across global IT networks that do not match up neatly with national boundaries. Cross-border data policy frameworks must be grounded in this reality.
Accepting this reality does not mean that governments cannot regulate. As connectivity and data have become integrated into every aspect of our lives, appropriate data-related regulation has become common in many areas that implicate data: data privacy, cybersecurity, intellectual property, online health services – to name a few. Globally, the incidence of data-related regulations has grown by over 800% between 1995 and 2015, totaling some 250 rules in 2019.
Because the Principles are focused on the cross-border aspects of data regulation, they do not address the substance of such data regulations. The Principles explicitly respect each government’s freedom to take necessary measures to achieve its legitimate policy objectives. Such measures should be non-discriminatory, should be developed in a transparent and accountable manner, and be designed to be interoperable with other countries’ legal frameworks.
In this respect, the Principles reflect longstanding tenets of international law and practice – freedom to pursue necessary regulatory objectives, the renunciation of discrimination, a commitment to accountability, and consideration of trading partner laws. These tenets reflect the shared perspective of the founding members of the General Agreement on Tariffs and Trade (GATT) – the predecessor to the World Trade Organization (WTO) – as they sought to rebuild after World War II and the preceding decades. And these tenets have been carried forward in other international organizations (including the OECD and APEC) and in practically all multilateral trade rules today, including those relating to goods, services, investment, technical regulations, and customs procedures. At their core, these tenets embody the essence of the rule of law in international commerce.
Now is the time to explicitly extend these core tenets to trade rules specific to data transfers. Data transfer restrictions impose costs on governments, workers, consumers, and enterprises alike. They are not tenable as global economies around the world are looking to recover from the far-reaching impacts of COVID-19. It is time for like-minded governments to act.
Whether in the WTO Joint Statement Initiative e-commerce negotiations, at the G7 or OECD, or in any of the many other ongoing negotiations that address cross-border data issues, governments should take action to bring data transfers within the ambit of the international economic rule of law – reaffirming and respecting the freedom of governments to regulate when necessary, their renunciation of discrimination, their commitment to accountable trade governance, and respect for each other’s legal frameworks.
