Issues on the Free Flow of Data, ICT Products and Services in a Digitally Connected World

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Free flow of data between different jurisdictions is a central concern for the digital economy and for the trade agreements of the future. While some point to the benefits of allowing unrestricted cross-border data flows, others raise arguments related to national security and data protection in order to defend restrictions on outward flows of data and to support data localisation.

The G20 Digital Task Force has been engaged in discussions focussed on how to emphasise the importance of digitalisation to G20 members and the rest of the world. One of the most important topics was Society 5.0: the concept of building a human-centred digital society in order to make the best use of digitalisation and digital technologies not only to boost economic growth, but also to develop the whole of society. The discussion stressed the importance of promoting the free flow of data while respecting each country’s policy objectives and data protection legislation. By continuing to address challenges related to privacy, data protection, intellectual property rights, and security, we can further facilitate the free flow of data and strengthen consumer and business trust. According to Mr Yoichi Iida (Director for International Research and Policy Coordination, Global ICT Strategy Bureau, Ministry of Internal Affairs and Communications, Japan) the group has not reached a concrete result or agreement, however.

At the G7 Digital Council discussions, countries argued that large Internet companies should not decide on the future for their citizens and the Internet. They felt that it is essential to have discussions in spaces such as the G7 where governments and other decision makers can engage in dialogue with civil society. The G7 Digital Council discussions stressed the general responsibility not to give up on multilateral dialogue, especially related to the Internet. Only through dialogue and the inclusion of all voices can digital technologies be built in a way that puts them at the service of the sustainable development goals. Ms Salwa Toko (President of the Conseil National du Numérique) highlighted three basic rights that must be guaranteed: equality, transparency, and accountability.

Increasingly, there is no distinction between the digital economy and the economy. Mr Tilman Kupfer (Vice President, Trade and International Affairs for BT Group) believes that there will be an explosion of data transfers, most of which will be non-personal. The legal regime that protects the data moves with the data even when it is transferred across borders, a reason to support the European Union’s General Data Protection Regulation (GDPR), which cannot be considered a trade barrier. The GDPR offers several tools for moving data while ensuring it is protected.

According to Ms Lidia Stepinska-Ustasiak (Deputy Director, Department of Foreign Affairs at Urząd Komunikacji Elektronicznej), at least three elements of the discussion about the free flow of data are challenging. The first is the multistakeholder approach: regulations should reflect the different needs of different stakeholders. The second important component is the pace of development of emerging technologies, which tends to be faster than the development of regulations. The third element is a deep understanding of interactions between different regulations.

World Trade Organization (WTO) member countries have been collaborating to develop principles on a wide number of aspects of electronic commerce, from customs and processing issues to cybersecurity-related principles. One of the most controversial and challenging discussions is that on trade principles for data flows. Another difficult topic is the principle of free cross-border flows of information; the idea that restrictions requiring data to be requiring data to be maintained or processed locally are undesirable, as explained by Ms Lee Tuthill (Counsellor, World Trade Organization).

How can countries propose global solutions for cross-border data flows without having a global discussion? Ms Luiza Brandão (Director at the Institute for Research on Internet and Society) believes there is a lack of diversity, dialogue, and transparency in the procedures for establishing global solutions. As already agreed, there is a need to go further as a global community, towards global solutions on Internet jurisdiction and on data flows. It is unsure, however, whether diverse stakeholders are taking part in the process, and one starting point is for negotiations to be more transparent and to have a diverse approach to solutions. Often, initiatives that address important issues such as data protection, cybersecurity, and intellectual property rights and aim to be global are not preceded by global debate before they come into force.

Impediments to data flows, localisation measures, and other fragmentation measures have economic consequences and can deter market access for exporters. Increased coordination for global rules on data flows is critical to address trade implications of national regulations and to ensure different approaches to data governance. Ms Rachel Steely (Policy Counsel of the Computer and Communications Industry Association) points out how some forums have tried to address the challenges, including the Organisation for Economic Co-operation and Development (OECD) and the Asia-Pacific Economic Cooperation (APEC), which established principles on enabling cross-border data flows. These principles have influenced national and multilateral frameworks for digital trade.

The Internet was originally conceived to be borderless, and Mr Sebastian Bellagamba (Regional Bureau Director, Latin America and The Caribbean, Internet Society) claims we should preserve the basic principles that guide the Internet. The objective must be to reconcile a network that was created without consideration of borders and the actual existence of borders. The free flow of information is critical to the Internet, and four factors that need to be considered are user trust, technologies for trust, trusted networks, and a trustworthy ecosystem.

No matter how global and diverse the discussion, however, it may be hard to achieve a universal agreement on the free flow of data because of extreme differences and contradictions between the policies and goals of different countries all across the world. Mr William Drake (International Fellow and Lecturer, University of Zurich) believes that the best countries can achieve is a form of agreement similar to the OECD, including developed and a few friendly developing countries, but not much more.

By Pedro Vilela

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