Safe Passage Through the Cross-Border Data Minefield

Abstract

Companies, governments, and individuals are using data to create new global sectors that depend on information economies of scale and scope and the free flow of information across borders.

These new sectors need clear rules and exceptions to the rules governing cross-border data flows. At the same time, people need to trust in these rules and believe that their personal data will be protected.

The current approach to governing cross-border data flows through trade agreements has not led to binding universal nor interoperable rules.

Language in trade agreements built on e-commerce-where there is a direct transaction, but this is not true for data driven sectors. Moreover, most trade agreements include a privacy or data-protection floor but do not include clear and universal personal data protection rules.

Policymakers must devise a new approach to regulating trade in data because so much of this data is personal data. Given the import of the data-driven economy, people won’t trust it if they don’t gain greater control over their personal data.

In this article, I propose a path through the data minefield. Such an approach would be built on giving people greater control over how their data is monetized and utilized. I also present a set of ideas about what any international agreement on data should include. A different path may also empower developing countries where citizens have lots of data to sell but are not yet able to create data-driven firms.