The Organisation for Economic Co-operation and Development (OECD) considered the common elements of regulatory approaches to cross-border data transfers. The organisation also analysed the information flows that underpin today's digitalised and globally interconnected world, but which raise a range of concerns, including privacy and intellectual property protection, regulatory scope, competition and industrial policy.
The trade policy document entitled “Mapping commonalities in regulatory approaches to cross-border data transfers” highlights the ways in which countries create “trusted” environments to enable cross-border data flows and finds the following findings:
- There is no single mechanism that enables what has been called “trusted free flows of data.” He argues that governments are pursuing different, multiple and complementary approaches.
- There is a range of unilateral mechanisms to safeguard cross-border transfers. These vary according to whether the safeguards require public sector approval prior to the transfer (pre-authorised safeguards), or whether they leave discretion on how to safeguard transfers to the private sector. Thus, the analysis reveals that pre-authorised safeguards, such as public accommodation decisions and ex ante legal guarantees are most common (65%). However, open safeguards, including accountability principles, assessments and private sector adequacy contracts, are also used (54%). That is, most countries incorporate some form of protection into their data transfers, but they do so in different ways.
- There are plurilateral agreements which aim to build consensus around privacy and personal data protection, including in relation to international transfers, have been widely adopted (including by 97 economies). Accordingly, the OECD says that 68% of the elements covered in existing national privacy and data protection regulations in a sample undertaken overlap. This suggests that there is a high degree of similarity in existing frameworks and therefore some common ground on which to build to enable data transfers.
- There are trade agreements Among 72 economies that have included provisions on data flows since 2008, 45% of these agreements include binding commitments on data flows (for all types of data). Of those with binding provisions, almost all include exceptions that allow data flows to be restricted to meet “legitimate public policy objectives”.
- Hay technology-driven standards and initiatives, such as ISO standards and privacy-enhancing technologies, including cryptography and sandboxes, which are increasingly being used by organizations to protect and control access to data.
In light of this, the analysis suggests that the specific instruments adopted by countries to enable “trusted” data flows are diverse. However, there are commonalities between and within instruments. For example, unilateral mechanisms, trade agreements or plurilateral agreements all share the objective of safeguarding data and enabling its flow across borders. While it remains the prerogative of governments to establish the mix of instruments or mechanisms that best serve their political interests and objectives, greater understanding, discussion and agreement on these instruments can lead to greater overall trust and “confidence” in the environment that underpins global data flows and that supports an increasing share of our economies and societies.
Finally, the OECD concludes that there is a high degree of complementarity between instruments. Taken together, this can be seen as indicating the emergence of an architecture aimed at harnessing the benefits of data flows while allowing governments to meet legitimate public policy objectives. It invites governments to establish the combination of instruments or mechanisms that best serve their interests and policy objectives, considering that greater understanding, discussion and agreement on these instruments can lead to greater “trust” that underpins the global flow of data.
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