Toward Compatibility of the EU Trade Policy with the General Data Protection Regulation

Abstract

The European Union's (EU) negotiating position on cross-border data flows, which the EU has recently included in its proposal for the World Trade Organization (WTO) talks on e-commerce, not only enshrines the protection of privacy and personal data as fundamental rights, but also creates a broad exception for a Member's restrictions on cross-border transfers of personal data. This essay argues that maintaining such a strong position in trade negotiations is essential for the EU to preserve the internal compatibility of its legal system when it comes to the right to protection of personal data under the EU Charter of Fundamental Rights (EU Charter) and the recently adopted General Data Protection Regulation (GDPR).

The Algorithmic Learning Deficit: Artificial Intelligence, Data Protection, and Trade

“…64 However, for these negotiations to result in concrete WTO legal norms, members will have to reach a consensus on how to balance the economic gains of free data flows with multiple competing interests, which include not only the protection of privacy and personal datathe main point of contention for the EUbut also other fundamental rights, as well as industrial policy, cybersecurity and economic development interests of other countries involved in the negotiations. 65 In contrast to the position taken both by the United States and the EU that data flows should be free (unless their restriction can be justified by an exception), when it comes to the protection of the source code, or algorithms expressed in that source code incorporating the learning derived from processing of datathe position is the exact opposite. As explained in the introduction, learning, or digital intelligence, is where the real economic value of personal and other data lies.…”

Panta Rhei

“…We have concluded elsewhere that 'unreservedly committing to free cross-border data flows likely collides with [the EU's] approach of affording a high level of protection of personal data as is called for by Article 8 of the Charter and as implemented by the GDPR'. 58 With eminent cross-border trade in AI, individual and societal implications can be critically larger and more pervasive. 59 The circulation of AI raises the stakes for human rights-based governance given that the technology can be deployed fairly location-independent.…”