In November 2013, Malcolm Crompton, CIPP/US, and I suggested in a short IAPP article for The Privacy Advisor that the challenge for global data flows was interoperability but that there was reason for optimism between the world’s two largest economic entities: the EU and the Asia-Pacific Economic Cooperation (APEC) (EU and APEC: A Roadmap for Global Interoperability?).
In brief, we suggested that if the results of a comparison between the EU’s Binding Corporate Rules (BCRs) framework and APEC’s Cross-Border Privacy Rules showed substantial similarities, the two systems may provide a potential roadmap for connecting two of the world's largest economic powers. This was followed the next month by a well-attended panel presentation at IAPP’s Data Protection Congress in Brussels that included Florence Raynal of the CNIL and Josh Harris, then of the Department of Commerce. At the presentation, the first but unofficial comparison of the two systems was released, conducted by Crompton and Information Integrity Solutions.
Last week, officials of the Article 29 Working Party and the APEC Data Privacy Subgroup released their review, which they have described as a “common referential.” The review went largely unreported in privacy circles but the full opinion can be read here: Opinion 02/2014 on a referential for requirements for Binding Corporate Rules submitted to national Data Protection Authorities in the EU and Cross-Border Privacy Rules submitted to APEC CBPR Accountability Agents.
This may be one of the EU’s most significant developments in the area of cross-border data transfers and potentially positive news for companies operating in both the EU and APEC region.
While the Article 29 Working Party was careful to note that the aim of the review was not to achieve mutual recognition, it did mention that the opinion could serve as a basis for what it called “double certification.” The opinion is clear that such a certification by an applicant company operating both in the EU and the APEC areas would have to be approved respectively by authorities in the EU and APEC. The opinion centers on a list of 26 elements outlining “common blocks” or similarities between BCR and CBPR and “additional blocks” that have different or additional elements specific to one or the other. The list was supplemented by an appendix that outlined the type of documentation necessary to apply under each system.
Yes, like the previous analysis that we reported in Brussels, the Working Party notes that differences exist between the requirements imposed by EU DPAs for BCR approval and the CBPR system for certification and on the scope of each system. The overall result is an informal pragmatic checklist for organizations applying for approval under the EU’s BCR system and the APEC CBPR system. And no, this does not establish mutual recognition or to use the new term, “interoperability,” but it is certainly a definite, practical start in that direction.