The United States and the European Union announced in February their intent to launch negotiations this year on a far-reaching trade and investment partnership agreement. Negotiations on the treaty, known as “TTIP”, should commence in June following a Congressional and public consultation period in the United States, and a parallel process in the EU whereby the European Commission will obtain a formal mandate from the 27 EU member states. Differences in data privacy and protection between the US and EU have already arisen as an issue of contention as governments labor to construct a bilateral negotiating agenda.
Senior U.S. officials, including outgoing U.S. Trade Representative Ron Kirk and Deputy National Security Adviser Michael Froman have both commented publicly that rules on cross-border data flows should be up for negotiation in the TTIP, responding to interest from US industry to liberalize data flows not only across the Atlantic Ocean, but also between various EU member state markets.
The European Union Commissioner for External Trade, Karel De Gucht, however, has stressed that while the US and EU should work on data privacy reforms, such negotiations must run parallel to the TTIP on a separate track. Proponents of rationalizing data privacy policies between the two markets, however, appear to fear that negotiations relegated to a separate track would lack the political impetus of TTIP, stressing that linkage to the large market access deal is the only way to ensure conclusion of a deal on data privacy.
Senior European data privacy officials, including the European Parliament rapporteur on the General Data Protection Regulation, Jan Philipp Albrecht MEP (Greens), and Germany’s federal commissioner for data protection Peter Schaar, meanwhile, reportedly desire data protection to be an issue subject to the TTIP negotiations, but have effectively placed preconditions on European participation which would include the US adopting new privacy protections in multiple areas. These include addressing inconsistencies in privacy regulations between US states and expanding the coverage of data protection to sectors other than healthcare. EU officials have also expressed interest in reforming the 2000 US-EU Safe Harbor Agreement.
Consumer groups, meanwhile, have also entered the fray. The Transatlantic Consumer Dialogue, an umbrella group of consumer organizations, argues that data privacy rules should not be discussed under TTIP, preferring the development of independent, national regulations more sensitive to consumer protection.
To be clear, the scope of the TTIP negotiations has not been set. The months between now and June will serve to develop a robust negotiating agenda covering virtually the entirety of the US-EU economic relationship. Interested parties in the US should take the opportunity to respond to requests for public comments by the Office United States Trade Representative and the White House Office of Management and Budget, as well as members of Congress on key committees of jurisdiction. The initial step in the US consultative process is already underway, as the USTR will hold public hearings April 10-11. Interested parties may respond via guidelines in the attached Federal Notice.