Three Data Realms: Convergence or Competition

This article compares the narratives underlying the EU’s approach to governing cross-border data flows and their reflection in the EU’s trade policy with those of the US and China. Using this comparison, this article makes three points. First, it elucidates the limitations of the EU’s focus on data protection when it comes to international governance of cross-border data flows. Second, it demonstrates that, although the policy concerns behind the EU, US and China’s restrictions on data flows are different, the degree of regulatory autonomy these jurisdictions are willing to give up in order to promote cross-border data flows is converging around the autonomy typically reserved for national security. This article then discusses possible explanations of this finding, reflecting on the possibilities and risks it creates for the future of the multilateral trading system. Third, it argues that the diffusion of the US model for the governance of transnational data flows in various bilateral and regional trade agreements around the world could undermine the EU’s ambition to export its values (most importantly, personal data protection) in the area of data governance.