Last year, the government of US President Joe Biden angered lobbyists for megatech companies and other companies that profit from our personal data, when it repudiated a proposal that would have invalidated data privacy, civil liberties and rights in internet and the protection of competition at the local level. Now, Biden’s new executive order on the security of Americans’ data reveals that lobbyists had good reason to worry.
After decades of unrestricted and unmonitored exploitation of Americans’ personal information by data traders and technology platforms, the Biden administration has announced that it will ban the transfer of certain types of data to China and other problematic countries. It’s a small but important step toward protecting Americans’ sensitive information, along with government data. Furthermore, the measure is likely to be a precursor to other policies in this regard. Americans have well-founded concerns about what happens on the Internet, and these extend beyond violations of privacy to include a host of other digital evils such as misinformation, social media anxiety disorders in teens, and hate speech. racial hate.
Companies that profit from our data (including personal medical, financial, and geolocation records) have been trying for years to equate the free flow of data with freedom of expression. They will try to present any public interest protections proposed by the Biden Administration as an attempt to prevent access to news websites, limit the internet, and empower authoritarian governments. But that doesn’t make sense.
Technology companies know that in an open and democratic debate, consumers’ interest in instituting protections for the digital world will prevail over their interest in profit margins. That’s why industry lobbyists have gone to great lengths to circumvent the democratic process. One of their methods has been to push for the approval of obscure international trade rules that would limit the personal data protection measures that the United States and other countries can take.
It should seem obvious that the US government must protect Americans’ privacy and national security; Both can be at risk depending on where and how the huge amounts of data that all users generate are processed and stored. But strangely enough, the administration of former President Donald Trump attempted to prohibit the United States from imposing restrictions on the “cross-border transfer of information, including personal information” to any country, if that transfer relates to the business of investors or service providers. that operate in the United States or in other countries that sign the agreement.
It is true that the Trump Administration’s proposal that the World Trade Organization institute this rule includes an exception, which would ostensibly allow some degree of regulation “necessary to achieve a legitimate public objective”; but that rule was designed not to work in practice. Although megatechs cite it to refute criticism of the broader proposal, its wording is copied from a WTO “general exception” that failed in 46 of 48 attempts to use it. Banning the regulation of cross-border data flows was just one of four proposals that Trump tried to introduce into the new version of the North American Free Trade Agreement and into the WTO negotiations at the behest of lobbyists. The proposed rules, written in incomprehensible jargon and hidden among hundreds of pages of trade clauses, were misleadingly presented as “digital international trade” rules.
With their restrictions on government policies, the new rules drafted by the industry jeopardized attempts by congressmen from both parties in the United States to oppose megatech abuses against consumers, workers and small businesses. They also undermined the ability of U.S. regulatory agencies responsible for protecting privacy, civil rights, and antitrust laws. Indeed, if the WTO had approved Trump-era rules against government imposition of restrictions on data flows, the Biden Administration would not be able to implement its new data security policy.
The existence of the Trump-era proposal went unnoticed by almost everyone (apart from the lobbyists who secretly pulled the strings of the negotiations). Never before has a US trade agreement included clauses that prevented the Executive and Congress from exercising authority over data regulation; From one day to the next, digital platforms obtained a special right to secrecy. The rules would have prohibited the implementation of algorithmic analysis and AI preselections that Congress and various executive branch agencies consider essential to protecting the public interest.
Trump’s defeat in the 2020 election did not deter industry lobbyists from seeking passage of these anomalous rules. His plan was to get them included in the Indo-Pacific Economic Framework, an agreement proposed by the Biden Administration. But instead of listening to lobbyists, Biden administration officials and lawmakers determined that the Trump-era proposals were inconsistent with congressional and executive branch goals on digital privacy, competition, and regulation. .
It’s now easier to understand why tech lobbyists were so infuriated by the Biden Administration’s decision to withdraw support for the Trump-era proposal. They realized that by scrapping the “digital international trade” rules promoted by megatechs, the Biden Administration was reaffirming its authority to regulate the big platforms and data traders that, for many Americans across the political spectrum, have amassed too much power. Trade agreements have gotten bad press precisely because of this kind of behavior by business lobbyists.
The United States needs a good debate on the best way to regulate megatech companies, and on how to defend competition by avoiding the digital evils that today encourage political polarization and weaken democracy. It is obvious that the debate should not be subject to restrictions surreptitiously imposed by megatech companies through trade agreements. US Trade Representative Katherine Tai is absolutely right when she says that setting trade rules that limit action on these issues before the US government has decided on its own strategy at the local level would be “malpractice.” policy”.
Whatever your position on regulating megatech companies—whether or not to restrict their anti-competitive practices and the social harm they cause—anyone who believes in democracy should applaud the Biden Administration for having refused to put the cart before the horse. The United States, like other countries, has to decide its policy for the digital area democratically. And if that happens, I suspect the result will be very different from what the megatechs and their lobbyists were trying to achieve.