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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 30 June 2017 Related reading: Australia and Chinese Taipei join APEC's Cross-Border Privacy Rules System

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Greetings from Brussels!

As big data and AI continue to lend themselves to all areas of life, from optimizing business to improving health care and education, they continue to throw a light on the central value of the resource itself — the data. With the emergence of the GDPR, coupled with the Trump administration’s take on international policy, the probability of trade tensions resulting from cross-border data flows remains high. From an industry perspective, this threatens to hold back the very technology that could bring about so much good.

Christopher Smart, who formerly served as special assistant to President Obama on the National Economic Council, as well as on the National Security Council and who served as a Treasury official, has some interesting observations on this subject at the macro level. Currently at the Harvard Kennedy School of Government, he is working on a report for the Chatham House on data regulation and the idea for a charter for data privacy to find areas of consensus among European and U.S. policymakers and industry.

His view is that the focus does not lie solely with the question of privacy but with the data itself, which he sees as an increasingly powerful and determining driver of economic growth (and innovation) around the world. More than just a problem of protecting personal privacy, there is the challenge of balancing that requirement with one of national security. While both these issues are at the forefront of the privacy debate, there is a third and equally vital interest, which is in protecting the value of the data itself in driving greater efficiencies in world economies, particularly in the U.S. and the EU. He observes that where growth in the traditional global trade of goods and services has potentially leveled off, cross-border data flows continue to expand rapidly, and the challenges of developing policies that protect privacy, security and innovation are already tremendous. This is possibly the greater of challenges facing our economic systems in modern times.

Christopher Smart maintains that policymakers need to engage more on common understandings — geopolitics and interests aside — and speaks of the need for a trans-Atlantic charter for data mobility and privacy that would allow European and U.S. officials to agree on basic principles. A fundamental premise of such a charter would be consensual recognition that there's more to it than just the "trade-off" between the two fundamental areas of privacy and security to consider, that there is the third imperative — the data — that needs protection, as well. For example, in looking to apply a given rule of privacy, you would analyze how that would impact national security concerns but by extension also how much it might restrict and limit the ability for companies to use data for commercial purposes, including in the areas of research and innovation. Moreover, Smart also cites the enormous potential for improvement to public policy (and services) from data processing. From an industry viewpoint, such a charter could provide the basis for firms, whether in manufacturing or financial services or health care, to draft their own voluntary standards on how they protect data even as they develop new algorithms that improve productivity, safety and customer satisfaction.

On specifics, Smart would like to see mechanisms on both sides of the Atlantic for designated officials to regularly dialogue and engage with one another, whether that be in the criminal justice, personal privacy or industrial and trade regulation levels. Additionally, he talks about the relevance for legislators across the pond to share their thoughts on the law as a catalyst for improvement.

In conclusion, while acknowledging such a charter would hardly resolve all concerns — or indeed contradictions — around the fundamental traditions on both sides of the Atlantic, Smart holds that it could provide the basis for a better cooperation and framework to help deliver on the promise of the digital age.

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