The Rise of Artificial Intelligence, Big Data, and the Next Generation of International Rules Governing Cross-Border Data Flows and Digital Trade
45 min read
Cross-border data flows are central to international commerce and innovation and will become increasingly important as the digital economy continues to grow and mature.
Government measures that prohibit or impede international data transfers are also increasing in response to shifting national economic policy priorities, rising geopolitical tensions and national security concerns, and the effect of emerging technologies like artificial intelligence (AI).
The efficacy and functionality of the current mix of legal regimes regulating international data transfers remains to be seen, and the future international legal architecture governing digital trade and cross-border data flows will be shaped by many factors.
The wide range of stakeholders and states implicated by current rules and the various initiatives at play may make it challenging to achieve significant outcomes on a global level.
National policy makers and trade negotiators need to bridge two gaps for meaningful international rules: (1) whether trade agreements should include data flow obligations or not; and (2) determining the appropriate regulatory space for states to accommodate legitimate public policy and national security objectives.
In the current climate, reaching consensus and then forging the particulars of agreements that calibrate the appropriate balance will be difficult.
- Section 1: Introduction and Overview
- Section 2: Emergence of Trade Policy for AI
- Section 3: Barriers to Cross-Border Data Flows
- Section 4: WTO Rules and Initiatives Relevant to Digital Trade Barriers
- Section 5: Modern Trade Agreement Disciplines on Digital Trade
- Section 6: New Digital Trade Initiatives
- Section 7: US Political Dynamics, Lack of Trade Promotion Authority, and the Future Path of Negotiations
1. Introduction and Overview
Developing international rules for cross-border data flows and digital trade.
Cross-border data flows are integral to the modern economy, enabling communications, financial transactions, access to a vast array of services, efficient manufacturing, medical research, and so much more. Cross-border data flows are even more important now with the rapid growth of new artificial intelligence (AI) applications, which depend on massive amounts of data. International trade rules governing the digital economy have advanced significantly in recent years, facilitating this foundational feature of modern trade and innovation. Agreements like the United States-Mexico-Canada Agreement (USMCA), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and the recent emergence of digital-specific trade agreements reflect early efforts by major economies to establish comprehensive trade rules to address barriers to cross-border data flows and trade in digital goods and services.
Enabling and facilitating open data flows between participating parties is likely to remain a core objective of future trade arrangements. While Western economies are generally guided by the principle of "Data Free Flow with Trust" (DFFT), which aims to foster openness in cross-border data transfers between participating nations, there is increasing pressure to balance this with other policy objectives, including privacy concerns, national security considerations, and industrial policy. A wide and diverse range of stakeholders have competing and sometimes overlapping interests related to the collection, storage, analysis, processing, and movement of data. There is no guarantee that new rules will mirror those that came before.
The trade environment has changed considerably in the years since the early digital trade disciplines were negotiated. New trade initiatives will be influenced by major shifts in US domestic politics, rising geopolitical tensions, an emerging bipartisan focus on US-China relations, supply chain disruptions, and technology advances, including the meteoric rise of AI and accompanying concerns about AI safety. These change agents affect business strategies, trade flows, and the regulatory calculus for balancing policy objectives and security concerns against the removal of barriers that disrupt commerce and stifle innovation. These debates could slow the development of trade disciplines or even lead to a further bifurcation or fragmentation of the global digital economy.
This paper discusses the proliferation of barriers to cross-border data flows and the current global legal architecture that governs the digital economy, including current World Trade Organization (WTO) and trade agreement disciplines applicable to such barriers. The paper also addresses new digital trade initiatives and concludes with an outlook regarding ongoing US efforts to negotiate new agreements that aim to strike an appropriate balance between facilitating digital trade and international data flows and preserving the space of governments to regulate in the public interest.
2. Emergence of Trade Policy for AI
Artificial intelligence and its reliance on massive datasets, underscores the importance of data flow obligations in trade agreements and raises new questions for regulators.
AI has increasingly attracted political attention in 2023 following high-profile advances in the field,1 highlighting both the nascent state of the regulatory environment in which it is evolving2 and the significant role AI may play in future negotiations over digital trade and cross border data flows.3 AI requires processing massive volumes of data for training and to produce useful insights, reinforcing the relevance of the rules for managing cross-border data transfers.4 AI also relies heavily on other data-intensive cross-border activities that are subject to digital trade rules, including cloud computing services and data collection from the internet of things (IoT). Beyond its need for data and digital services, AI development depends on use of hardware, such as the most advanced semiconductors, which have also been the source of recent trade policy measures.5
Restrictions on cross-border data transfers could slow AI development by limiting access to training data and important commercial services. Beyond the foundational level of accessing training data, open cross-border data flows also enable access to commercial services and foreign talent. Cloud computing services, for example, provide an important resource for training models and opens the industry to smaller companies that may not have the resources to invest in building their own hardware.
At the same time, the lack of a sufficient regulatory framework raises concerns that are emerging alongside the rapid growth of AI, like the weaponization of AI, misinformation, surveillance, bias, and intellectual property protection. These risks are prompting regulators to look more carefully at how the sector uses data. As regulators consider how developers manufacture, acquire, or use advanced semiconductors, gather data, develop algorithms, and own or utilize the output, any targeted new rules could also have more general implications for cross-border data flows. That wider regulatory system for AI is still under development, as can be seen in the AI Act6 emerging in the EU and the Voluntary AI Commitments7 recently unveiled in the United States. Managing the tension between openness and risk management in an already globalized industry will present challenges for regulators,8 and international coordination is only just beginning.9 The input and participation of the private sector, and particularly the key technology companies at the center of the AI revolution, will be critical to the creation, operation, and maintenance of emerging international legal frameworks governing cross-border data flows.
3. Barriers to Cross-Border Data Flows
Various government measures around the world increasingly target cross-border data flows, creating new obstacles to trade and competition in the age of digital commerce.
The digital economy, which is comprised of both digital goods and digital services, has grown rapidly in recent years. In the United States alone, digital value-added output increased from $1.3 trillion in 2010 to $2.4 trillion in 2021, with digital services such as e-commerce, cloud services, telecommunications, and internet and data services accounting for nearly two-thirds of this total.10 International trade in the digital economy has grown at a similar speed.11 US two-way trade in information and communication technology (ICT) services grew from $90 billion in 2010 to $147 billion in 2021.12 Cross-border data flows have played a critical role in enabling this growth, and data volumes have increased exponentially during the same time period.13 Companies continue to increase their reliance on technologies like AI and machine learning, which require access to massive amounts of data. Seamless cross-border access to data will help spur continued economic growth and innovation.
As the scale and importance of the digital economy has grown, so has government regulation of international data transfers. Requiring data localization is one of the primary tools adopted by various governments.
These measures can take a variety of forms, including the following:15
- "Data mirroring" rules, which require firms to store copies of certain data locally before transferring a copy out of the country;
- Explicit local data storage rules, which require firms to physically locate data in the country where it originates (and which may or may not allow foreign processing);
- "De facto" local storage and processing requirements, in which firms choose to store data locally because of stringent conditions on transferring the data out of the country;
- Restrictions to transfer of certain data outside the country, except to specific countries deemed to provide adequate data protection;
- Outright prohibitions on the transfer of certain data to other countries; and
- The use of regulatory requirements (e.g., licensing and certification schemes) to require local data storage and exclude foreign firms from managing and processing data.
In addition to measures related to data localization objectives, other common barriers include restrictions on the provision of digitally-enabled services, requirements to allow governments' access to data, and restrictive technology requirements, such as forced disclosure of software source code and algorithms.16 Governments have offered a range of policy justifications for digital trade barriers, including privacy and data protection, intellectual property rights protections, regulatory control or audit purposes, and national security.17 In some instances, however, the measures amount to nothing more than old-fashioned protectionism or efforts to build domestic champions in a particular sector. Successive US administrations have taken the view that regulation lacking a legitimate public policy purpose poses a significant threat to the growth of the modern economy and have sought to develop trade disciplines that discourage such barriers.
4. WTO Rules and Initiatives Relevant to Digital Trade Barriers
The WTO's services commitments predate the development of digital trade but still include measures relevant to digital trade and data flows, while WTO members are negotiating new commitments through the Moratorium on Customs Duties on Electronic Transmissions and the E-Commerce Joint Statement Initiative.
Cross-border data flows are far more pervasive and deeply embedded in international commerce today than when the WTO agreements entered into force nearly three decades ago in 1995. Understandably, the WTO agreements lack dedicated provisions on emerging digital trade issues such as cross-border data flows and localization measures. Nevertheless, certain provisions of the WTO's General Agreement on Trade in Services (GATS) are relevant to government measures that restrict cross-border data flows, where such measures affect trade in services. This is important given that much of the rise in global data flows over recent decades is associated with the digital delivery of services.18
Also, since 1998, WTO Members have agreed to refrain from imposing customs duties on electronic transmissions. However, this agreement has taken the form of a temporary moratorium that Members must periodically extend by consensus, rather than a permanent prohibition.
Finally, in January of 2019, the United States and 75 other WTO Members launched negotiations for a plurilateral agreement on "trade-related aspects of electronic commerce" to "seek to achieve a high standard outcome that builds on existing WTO agreements and frameworks with the participation of as many WTO Members as possible."19 To date, the E-Commerce Joint Statement Initiative negotiations among the participating states has made progress on less controversial issues, but reaching consensus on an agreement will be difficult.
4.1 GATS Commitments.
Unlike other GATS obligations, which apply to all services sectors, Members are required to accord market access and national treatment only in the services sectors in which they have taken specific commitments to do so. Each Member has inscribed its market access and national treatment commitments for each sector in its Schedule of Specific Commitments. Members' schedules further delineate these commitments along the four "modes" of service supply recognized by the GATS.21 For example, a Member may pledge not to restrict market access for a particular service supplied by "mode 1" (which concerns the cross-border provision of services from one Member's territory into another Member's territory, through means such as electronic delivery), while reserving the right to restrict market access for the same service supplied by "mode 3" (which covers the supply of services through a supplier's commercial presence in the export market).
Sector-specific commitments under the GATS can constrain a WTO Member's ability to impose data localization requirements or restrictions on cross-border data flows, particularly where the commitments apply to modes 1 and 3. The WTO panel recognized that "a market access commitment for mode 1 implies the right for other Members' suppliers to supply a service through all means of delivery, whether by mail, telephone, Internet etc., unless otherwise specified in a Member's Schedule."22 This ruling affirmed the principle of "technological neutrality" of the GATS (i.e., that sector-specific commitments apply regardless of the technology through which the service is supplied). This means that, where a Member has taken a market access commitment for supply of a service by mode 1, restricting cross-border transfers of data that are necessary to supply that service could run afoul of the commitment.
WTO panels have also recognized that the ability to supply certain services for which a Member has made mode 3 market access commitments may be fully contingent on the ability to transfer data into and out of that Member's territory. For example, "a mode 3 commitment on data processing services would allow a foreign company established in the territory of a Member to supply data processing services to a consumer located in the territory of another Member."23 Certain digital trade barriers (e.g., data localization measures) could therefore run afoul of a Member's mode 3 commitments, where they prohibit outbound transfers of data necessary to supply a service from that Member's territory.
The GATS sets out several exceptions to Members' general obligations and specific commitments, subject to the satisfaction of certain requirements. The general exceptions set out in Article XIV allow members to impose certain types of measures (e.g., those "necessary to protect public morals or to maintain public order;"24 "necessary to protect human, animal, or plant life or health;"25 or "necessary to secure compliance with laws or regulations which are not inconsistent with" the GATS, "including those relating to" fraud prevention, privacy, and safety).26 To be justified under Article XIV, such measures may not be "applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services[.]"27 Separately, the security exception set out in Article XIV bis allows a Member to take, among others, "any action which it considers necessary for the protection of its essential security interests. . .taken in time of war or other emergency in international relations."28 Governments could invoke these exceptions in an effort to justify digital trade restrictions that might otherwise violate their GATS commitments, especially where the restrictions purport to further objectives such as privacy protection and cybersecurity, as is often the case with modern digital trade barriers.
Although GATS commitments can prohibit countries from imposing barriers to cross-border data flows in certain circumstances, they may be insufficient to address the full spectrum of those barriers that have emerged over the past decade. This is due in part to the scope of the GATS (which is limited to services), as well as the sector-specific nature of the GATS market access and national treatment commitments. The coverage and level of ambition of these commitments vary widely among Members and service sectors, and, in the absence of specific commitments in the relevant sector, the GATS provides little protection against barriers to cross-border data flows. These limitations, combined with substantial changes in technology and government regulation of the digital sphere, have generated the need for more comprehensive rules that target the full spectrum of modern digital trade barriers. Given the obstacles to establishing such rules at the multilateral level, like-minded Members have taken the first steps toward addressing the issue in bilateral and regional FTAs.
4.2 Moratorium on Customs Duties on Electronic Transmissions.
Since 1998, WTO Members have agreed to refrain from imposing customs duties on electronic transmissions. However, this agreement has taken the form of a temporary moratorium that Members must periodically extend by consensus, rather than a permanent prohibition.29 Members typically have agreed to extend the moratorium in two-year increments, with the most recent extension scheduled to last until the WTO's 13th Ministerial Conference (scheduled for February 26-29, 2024 in Abu Dhabi),30 or at the latest until March 31, 2024, unless it is extended further.31 Efforts to replace the moratorium with a permanent prohibition have encountered opposition from certain developing countries, which argue that the moratorium disadvantages them by denying them customs revenue on e-commerce transactions and preventing them from protecting their domestic industries against overseas competition. For the same reasons, even temporary extensions of the moratorium have become controversial in recent years.32 This is another digital trade issue that like-minded countries have sought to address through bilateral and regional FTAs.
4.3 E-Commerce Joint Statement Initiative (JSI).
The JSI negotiations focus on the following six key areas:
- enabling electronic commerce,
- openness and electronic commerce (which includes issues of cross-border data transfers),
- trust and digital trade,
- cross-cutting issues,
- telecommunications, and
- market access.33
As of February of 2023, participation in the initiative has grown to 89 Members, which accounts for 90 percent of global trade.34 These Members include several parties that have already taken comprehensive digital trade commitments in regional FTAs (e.g., Japan, Singapore, Australia, Canada, and Mexico), as well as parties that have not (e.g., China). So far, participants have made progress on less controversial issues such as electronic signatures, spam, and open government data, but the more difficult issues of cross-border data flows, data localization, and source code still require "greater convergence" among negotiating parties.35 Also, a proposed inclusion of services market access commitments has proven to be "challenging,"36 and there are multiple proposed approaches to data privacy commitments still under discussion. The parties intend to substantially conclude the agreement in 2023 and completion may require compromises on these more controversial issues,37 showing how far governments are from finding global consensus on managing data.
5. Modern Trade Agreement Disciplines on Digital Trade
Disciplines relevant to data flows and digital trade have emerged in modern trade agreements, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA).
With the perceived relevance of the WTO's functions for rule making and dispute resolution diminishing, the importance of regional and bilateral initiatives increases.38 Digital trade rules have been a feature of US FTAs for nearly two decades. All US FTAs signed since 2003 have included chapters on electronic commerce, starting with the US-Singapore FTA. Disciplines on digital trade set forth in this first generation of FTAs covering digital trade rules, however, were limited in scope, in most cases dealing only with customs duties and discriminatory measures targeting digital products such as software and videos.
The first FTA to include a robust digital trade chapter was the Trans-Pacific Partnership (TPP), which the United States and 11 other countries signed in 2016. The TPP included groundbreaking new disciplines addressing data localization, cross-border data flows, and forced technology transfer, while also updating e-commerce disciplines found in prior agreements. The United States withdrew from the TPP in 2017,39 but the 11 remaining parties implemented the agreement (which is now known as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)).40 Since its conclusion in 2016, China, Costa Rica, Ecuador, Taiwan, Ukraine, the United Kingdom, and Uruguay have applied to join, and numerous other countries have expressed interest.41 In July 2023, the United Kingdom became the first new country to sign the agreement since its original negotiation.42
As it grows to cover a wider swath of the global economy (and the United States continues to build on its provisions in other agreements), the principles in the CPTPP's digital trade chapter will become increasingly central to how governments manage digital trade. The CPTPP's digital trade chapter served as the template for subsequent US agreements, including the USMCA and the US-Japan Digital Trade Agreement (US-Japan DTA), both of which updated the CPTPP rules in important ways. An emerging class of digital trade agreements and upgrades to older FTAs that build the digital trade language of the CPTPP is also emerging in parallel to the US-led work, mostly in the Asia-Pacific (discussed in Section 5).43
This second generation of digital trade agreements addresses a wide range of issues, from electronic signatures to online consumer protection and cybersecurity. The most commercially significant provisions deal with the core issues of cross-border data flows, localization, forced technology transfer, and treatment of electronic transmissions:
5.1 Prohibiting customs duties on "electronic transmissions" and underlying content.
The CPTPP prohibits the imposition of customs duties on "electronic transmissions" among the CPTPP Parties.44 This provision goes beyond the WTO moratorium by making the prohibition permanent, and by clarifying that the prohibition extends to "content transmitted electronically" (not only to the transmissions themselves). Commitments of this kind can play an important role in ensuring the seamless global flow of data, software, media, and other digital content. Earlier FTAs such as the Korea-United States Free Trade Agreement (KORUS) included similar prohibitions but applied them only to "digital products" (e.g., computer programs, videos, and sound recordings), rather than extending them to all electronic transmissions and their contents.45 The US-Japan DTA mirrors the CPTPP's approach, whereas the USMCA reverts to the earlier FTA practice, applying the prohibition only to "digital products" produced for commercial sale.46
5.2 Cross-border data flows.
The CPTPP requires Parties to "allow the cross-border transfer of information by electronic means, including personal information," when such transfers are for business purposes.47
However, the CPTPP's data flow obligation contains an exception that allows Parties to restrict cross-border data flows "to achieve a legitimate public policy objective," provided that the measure (1) is not applied in a manner that would constitute arbitrary or unjustifiable discrimination or a disguised restriction on trade; and (2) does not impose restrictions greater than are required to achieve the objective. The CPTPP does not define what constitutes a "legitimate public policy objective" and governments could potentially seek to justify a wide range of restrictions under this exception.
The USMCA and the US-Japan DTA include similar data flow obligations. However, these agreements go further by providing that Parties may not "prohibit or restrict" cross-border data flows (whereas the CPTPP merely requires Parties to "allow" such data flows).48 The scope of prohibited conduct therefore appears broader under the USMCA and the US-Japan DTA (i.e., these agreements arguably prohibit measures that impose limits or conditions on international data transfers but fall short of an outright ban on such measures). These agreements also extend obligations related to cross-border data flows in the financial services sector.49 However, both the USMCA and the US-Japan DTA replicate the CPTPP's exception for data flow restrictions taken in furtherance of "legitimate public policy objectives."
5.3 Data localization requirements.
The CPTPP prohibits a Party from requiring businesses "to use or locate computing facilities in that Party's territory as a condition for conducting business in that territory."50 However, the obligation includes a broad exception for localization measures that a Party imposes to achieve a "legitimate public policy objective," mirroring the exception to the data flow obligation.
The USMCA and the US-Japan DTA go further than the CPTPP rule on data localization. Both agreements replicate the CPTPP's prohibition on data localization measures, but they do not provide an exception for measures taken to achieve a "legitimate public policy objective."51 In addition, the USMCA and the US-Japan DTA prohibit data localization measures in the financial services sector, whereas the CPTPP did not do so.52 Nevertheless, governments could still seek to justify data localization measures under the security and general exceptions applicable to these agreements.
5.4 Forced disclosure of software source code and algorithms.
Another novel provision in the CPTPP prohibits a Party from requiring "the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory."53 This obligation is intended to address the concern that source code obtained in such a manner could be disclosed to unauthorized recipients, including business competitors and particularly state-owned enterprises. In the CPTPP, this obligation extends only to "mass-market software," and does not apply to software used for critical infrastructure or to government measures relating to patent applications or granted patents.
The USMCA and the US-Japan DTA both expand the scope of this obligation to cover source code for all software, as well as "an algorithm expressed in that source code."54 However, these agreements include broad exceptions allowing a regulatory body or judicial authority of a Party to require companies "to preserve and make available the source code of software, or an algorithm expressed in that source code, to the regulatory body for a specific investigation, inspection, examination, enforcement action, or judicial proceeding, subject to safeguards against unauthorized disclosure."
The digital trade provisions of these agreements are subject to general and security exceptions. All three agreements incorporate by direct reference to certain of the general exceptions contained in GATS Article XIV, namely the exceptions for measures (1) necessary to protect public morals or to maintain public order; (2) necessary to protect human, animal or plant life or health; and (3) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of the agreement.55 The security exceptions in these agreements are broader than those found in the GATS, allowing a party to take measures "that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests."56
The commitments made under these FTAs described above represent an important evolution of international trade rules and have the potential to avert costly impediments to the flow of data among like-minded states. However, the effectiveness of these provisions remains to be seen. As noted above, many of the core obligations on data flows and localization include exceptions for measures that promote a "legitimate public policy objective," and the scope of these exceptions is not clearly defined. Moreover, the security exceptions of these agreements arguably provide even greater leeway than WTO rules for Parties to justify measures that impede or restrict cross-border data flows or digital trade. These novel digital trade provisions and corresponding exceptions have yet to be tested through dispute settlement, and it is unclear whether they will capture all forms of digital trade protectionism.
6. New Digital Trade Initiatives
Disciplines on data flows and digital trade continue to proliferate, including in the Indo-Pacific Economic Framework (IPEF), the US-Taiwan Initiative, the EU's Digital Trade Agreements, digital trade agreements in the Asia-Pacific, and emerging work in other international fora.
The United States and other leading economies are currently seeking to negotiate new digital trade rules in various fora, including the following:
6.1 Indo-Pacific Economic Framework (IPEF).
In May of 2022, the United States and other Indo-Pacific countries agreed to launch "collective discussions towards future negotiations" for the IPEF.57 At the insistence of the United States, the proposed IPEF is not a fully-fledged trade agreement and will not cover market access for goods or services. The United States and 13 other countries have adopted joint Ministerial Statements on their negotiating objectives for the four "pillars" of the IPEF: (1) Trade, (2) Supply Chains, (3) Clean Economy, and (4) Fair Economy.58
The trade pillar includes a digital trade chapter, among other objectives. The Ministerial Statement describes the digital trade objectives in broad terms, as follows:
- "building an environment of trust and confidence in the digital economy;"
- "enhancing access to online information and use of the Internet;"
- "facilitating digital trade;"
- "addressing discriminatory practices;" and
- advancing "resilient and secure" digital infrastructure and platforms.59
USTR shared a summary of what it had proposed for the digital trade chapter in April 2023, which includes five more specific provisions for implementing the Ministerial Statements objectives:
- "provisions addressing data protection, consumer protection, and artificial intelligence that support inclusive growth by promoting trust in the digital economy;"
- "provisions that promote access to the Internet and online services;"
- "provisions designed to avoid unfair trade practices, while recognizing the need for Parties to be able to address legitimate public policy objectives;"
- "provisions aimed at ensuring an effective legal framework for electronic transactions that is consistent with international best practices;" and
- "provisions promoting the security of the Internet and ICT infrastructure."60
Notably, both the Ministerial Statement and the chapter summaries avoid clear references to the core digital trade disciplines found in the USMCA and similar agreements (e.g., prohibitions on data localization measures, restrictions on cross-border data flows, and customs duties on electronic transmissions). As of the writing of this report, negotiations are ongoing, and the negotiating text has not been disclosed. The parties intend to substantially conclude negotiations by November 2023.61
6.2 US-Taiwan Initiative.
In August of 2022, the United States and Taiwan reached agreement on a negotiating mandate for a proposed "US-Taiwan Initiative on 21st Century Trade."62 Like the IPEF, the initiative is not a comprehensive FTA and will not involve negotiations on market access. The negotiating mandate covers various "trade areas" including digital trade. The United States and Taiwan will negotiate "outcomes in digital trade that benefit workers, consumers and businesses, including SMEs, through the adoption of provisions that:
- build consumer trust in the digital economy,
- promote access to information,
- facilitate the use of digital technologies,
- promote resilient and secure digital infrastructure,
- address discriminatory practices in the digital economy, and
- promote cooperation on competition policy."63
Negotiations are occurring in stages, with the United States and Taiwan signing a first phase agreement on June 1, 2023, covering customs administration, good regulatory practices, services domestic regulation, anticorruption, and small- and medium-sized enterprises.64 Proposed chapters on agriculture, standards, digital trade, labor, environment, state-owned enterprises, and non-market policies are still to be negotiated as of the writing of this report.
6.3 EU Digital Trade Agreements.
Specialized digital trade chapters have emerged in EU trade agreements in recent years, seeking to reduce barriers to digital trade, cross-border data flows, and e-commerce. While beginning with a chapter that only contained commitments to enable cross-border e-commerce,65 the EU's disciplines have since grown to include stronger commitments on cross-border data flows and prohibitions of data localization requirements (among other digital trade topics). This evolution in the EU's approach is timely, as the growth of AI and other data-intensive activities have created a need for digital trade chapters that go beyond the original, narrower focus on e-commerce.66
A key question for governments and businesses world-wide will be how to reconcile agreements committing to the EU approach and agreements committing to derivations of the CPTPP approach. Managing this tension will become increasingly important as the two sets of models begin to overlap in the Asia-Pacific.
The EU has recently begun including the full digital trade chapter in FTAs and it can be found in the recently concluded trade agreements with New Zealand,67 Chile,68 and the UK.69 Working to incorporate the new chapter into older FTAs, the EU recently concluded non-binding Digital Partnership Agreements with Japan,70 Korea,71 and Singapore72 and then announced negotiations for a full Digital Trade Agreement with Singapore in July 2023.73 The DTA negotiations would add a modern digital trade chapter to the EU-Singapore FTA, which currently only includes the older measures on e-commerce. The EU-Singapore joint statement announcing the negotiations highlighted how the partners "can play a leading role in setting high-standard digital trade rules between our regions and raising the ambition of global digital standards," connecting the EU's ambition of promoting its approach to digital trade standards with Singapore's digital trade leadership in Asia.74 Additional DTAs and new FTAs with robust digital trade chapters will follow these in the next few years.75
6.4 EU Data Privacy Law.
Building a legal system that enables free flow of data that is also consistent with differing data privacy regimes has been challenging for governments. The EU's General Data Protection Regulation (GDPR) has taken a particularly strong position on prioritizing privacy over data flows, restricting the transfer of personal data outside of the EU except to specific countries that the EU has determined provide adequate data protection. This has led to friction with the United States, with EU courts repeatedly issuing rulings in recent years that have restricted data flows between the two economies over such data privacy concerns.76 In July 2023, a new EU-US Data Privacy Framework (DPF)77 was established to resolve the conflicting approaches to data privacy and was endorsed in a new adequacy decision (but still may be subject to further review).78 The new DPF is intended to facilitate trans-Atlantic data flows by enhancing trust in data governance: it enables US industries to comply with EU data protection law (i.e., GDPR) while being subject to US laws relating to foreign intelligence surveillance. The new arrangement will also lead to organizations being able to transmit data between the United States, the UK and Switzerland, all of which have similar arrangements administered alongside the EU-US DPF.79
6.5 Asia-Pacific Digital Trade Agreements.
The EU-Singapore DTA, the latest in a series of digital trade initiatives in which Singapore and other economies in the Asia-Pacific have participated in since the CPTPP, extends the reach of CPTPP standards and establishes new principles.
The most significant of these new digital trade initiatives is the Digital Economy Partnership Agreement (DEPA) signed between Singapore, Chile, and New Zealand in June 2020.80 The parties envision DEPA as a new, flexible approach for the digital era that will continue to evolve as new opportunities and issues emerge in the sector.81 It will serve as a living agreement with global ambitions, whereby accession by other countries that meet the standards established are welcomed. Korea concluded negotiations to join the DEPA in June 2023, while China, Canada, Costa Rica, and Peru are formally seeking membership.82 Key features of the DEPA cover:
- digital identities,
- paperless trade,
- fintech and e-payments,
- personal information protection,
- cross-border data flow,
- open government data,
- data innovation and regulatory sandboxes,
- artificial intelligence,
- online consumer protection,
- small and medium enterprise cooperation, and
- digital inclusivity.
The other avenue for this work has been to add updated digital chapters to existing FTAs, including:
- the Singapore-Australia FTA in 2020 (the Australia-Singapore Digital Economy Agreement),83
- the Korea-Singapore FTA in 2022 (the Korea-Singapore Digital Partnership Agreement),84 and
- the UK-Singapore FTA in 2022 (the UK-Singapore Digital Economy Agreement).85
Australia and New Zealand then carried similar language on digital trade into new FTAs with the UK, which were important steps to the UK's accession to the CPTPP.86 As this web of overlapping bilateral and multilateral digital commitments grow there will be opportunities for convergence.87
6.6 Other International Fora.
The G7 Trade Ministers agreed on a set of Digital Trade Principles in 2021, expressing their shared concerns about "situations where data localisation requirements are being used for protectionist and discriminatory purposes" and the need to "address unjustified obstacles to cross-border data flows."88 At the same time, the Principles emphasized the importance of "continuing to address privacy, data protection, the protection of intellectual property rights, and security."89 Continuing to build on that work, the G7 Digital and Tech Ministers' Meeting in April 2023 endorsed a new cooperation mechanism, the Institutional Arrangement for Partnership, to operationalize the planned work.90 The ministers also endorsed an action plan for AI governance and began new discussions on generative AI, bringing AI into digital trade policy.91
Several other digital trade initiatives involving the United States loom on the horizon, including: the Asia-Pacific Economic Cooperation (APEC) discussions on digital standards harmonization;92 the Global Cross-Border Privacy Rules (CBPR) Forum (an expansion of the APEC CBPR that was launched in 2022);93 the OECD Digital Economy Ministerial Meetings, which recently issued the Declaration on Government Access to Personal Data Held by Private Sector Entities;94 and US bilateral dialogues, including with India,95 Japan,96 and the UK.97
7. US Political Dynamics, Lack of Trade Promotion Authority, and the Future Path of Negotiations
Data flows disciplines could go in a few directions from here, with current US political dynamics, the lack of US trade promotion authority, and emerging international tensions obscuring the outlook for pending negotiations.
7.1 The US debate on digital trade and cross-border data flows.
The multitude of global, regional, and bilateral initiatives provide opportunities to extend digital trade obligations and extend disciplines related to cross-border data flows. However, there is some uncertainty about the specific objectives the United States is now pursuing. Consistent with prior administrations, the Biden Administration has expressed concern about restrictive foreign government policies that affect US exports of digital products and services and inhibit cross-border data flows.98 However, the Biden Administration has not articulated its positions or negotiating objectives on digital trade in significant detail, and has questioned whether past agreements strike an appropriate balance between facilitating digital trade and protecting the right of governments to regulate in the public interest.99
Influential US constituencies such as labor unions have also strongly criticized digital trade rules based on the CPTPP and USMCA model, arguing that "[m]isbranding constraints on government regulatory authority as 'e-commerce' or 'digital trade' agreements has helped them to evade scrutiny and quietly undermine certain worker protections, policies that constrain entities' size or market power and promote fair competition, and civil rights, privacy and liability policies[.]"100 They have specifically criticized provisions that "[u]ndermine consumer privacy and data security by prohibiting limits on data flows or rules on the location of computing facilities."101 US labor unions have argued that these agreements "create a nearly absolute right to unfettered cross-border flows," and that new digital trade rules in the IPEF "must rebalance these commitments to provide meaningful policy space to protect worker and consumer privacy, reduce digital offshoring or the privatization of government data services, and provide specific exemptions and exclusions for sensitive categories of data (e.g., financial, health, biometric) where there may be sound reasons to restrict cross border data flows."102 Similar arguments were repeated in a "worker-centered" digital trade agenda proposed by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).103 These views are noteworthy, given the Biden Administration's stated emphasis on ensuring that workers' views are reflected more prominently in US trade policy. On the other hand, expanding the policy exceptions found in the USMCA and the CPTPP could render future commitments on data flows far less meaningful for business.
7.2 US Trade Promotion Authority.
The US Constitution gives Congress exclusive authority to impose duties and "regulate Commerce with foreign Nations,"104 while it empowers the president to conduct foreign affairs and negotiate treaties with the advice and consent of the US Senate.105 Recognizing this framework and the need for the US government to credibly negotiate trade agreements with foreign nations, Congress has periodically enacted special, expedited procedures to consider trade agreements negotiated by the Executive Branch.106 Such legislation, now commonly known as "trade promotion authority," or "TPA," represents a delegation of authority from Congress to the president. The most recent TPA legislation, enacted in 2015, expired in July 2021. Historically, Congress has not undertaken the difficult task of enacting new TPA legislation on its own initiative; rather, it has done so in response to pressure from the Executive Branch.107 New trade promotion authority does not appear to be a priority of the Biden Administration. Without TPA in effect, the Administration would necessarily need to focus on agreements that do not require a congressional approval. The executive branch has often engaged in executive agreements108 in situations where such agreements' commitments do not change US law,109 but the constitutional authority underlying this approach is subject to debate.110
To that end, the Biden Administration has pursued the IPEF and the US-Taiwan Initiative as executive agreements and will not seek Congressional ratification for them. Members of Congress have responded critically, raising both objections to the process and policy disagreements.111 Congress is now beginning to push back against the Biden Administration's approach with the recent United States-Taiwan Initiative on 21st-Century Trade First Agreement Implementation Act,112 which implemented the first phase of the US-Taiwan Initiative into law as if it was negotiated as an FTA under TPA and imposed strict oversight requirements on future negotiations with Taiwan. Similar legislation may emerge covering other agreements like the IPEF if leaders are unable to find a more conventional TPA compromise.
7.3 Emerging international tensions.
Apart from the general policy considerations discussed here, increasing political tensions, particularly between the United States and China, are also informing the US policy debate and could move the United States away from its traditional focus on free flow of data. The DATA Act, introduced to the House of Representatives in February 2023, would require the executive branch to take certain actions to protect the personal data of US persons, including by restricting data transfers to persons associated with China.113 Another recent bill, the RESTRICT Act, approaches the issue by giving the executive branch authority to restrict specific ICT products and services linked to countries of concern.114 This would limit digital trade by blocking specific digital transactions and business holdings, rather than a broad curtailing of data flows. Another bipartisan bill, reintroduced in June 2023, is seeking to "create new protections against Americans' sensitive personal information being sold or transferred to high-risk foreign countries."115 This legislation would require the Secretary of Commerce to identify categories of personal data that, if exported, could harm US national security. Bulk transfers of data to high-risk countries would require a license, and such licenses would be presumptively denied.
Debates about the safety of digital trade between the United States and China are also beginning to affect AI policy, with another recently introduced bill seeking to expand the current semiconductor export controls to include remote or cloud-based use of covered semiconductors.116 Under this bill, AI developers in covered countries like China would be barred from renting access to chips through cloud computing services for training AI models. Majority support has not yet coalesced around any of these bills, but they are suggestive of evolving views among some members of Congress on the security implications for the United States of cross-border data flows.
7.4 Where the United States will go with IPEF.
The challenging politics in the United States further complicates the potential legal architecture of proposed initiatives such as the IPEF, which is not a comprehensive FTA and does not contemplate commitments on market access.
Moreover, new digital trade rules might be of limited value for certain industries that remain locked out of key markets due to services market access barriers. Market access commitments also play an essential role in the enforcement of trade agreements: WTO and FTA dispute settlement mechanisms allow a complaining party to suspend market access concessions (e.g., by raising tariffs) where a dispute settlement panel finds that the respondent party has violated its obligations. It is unclear what incentives could substitute for market access to enforce the terms of agreements like those under discussion in the IPEF. While the United States considers the IPEF as one of the primary platforms to advance its initiative on promoting "trusted and secure cross-border data flows,"117 the current approach raises questions as to the level of ambition that can be achieved in the IPEF, and whether any resulting digital trade rules could be effectively enforced.
1 See, e.g., "Generative AI Raises Competition Concerns," June 29, 2023, US Federal Trade Commission.
2 See, e.g., "As A.I. Booms, Lawmakers Struggle to Understand the Technology," March 3, 2023, The New York Times.
3 See, e.g., "USMCA at 3: Reflecting on impact and charting the future," Brookings, July 19, 2023.
4 See "The impact of artificial intelligence on international trade." Joshua P. Meltzer, 2018.
5 See "Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification (87 FR 62186)," October 13, 2022.
6 See "AI Act: a step closer to the first rules on Artificial Intelligence," May 11, 2023.
7 See "Fact Sheet: Biden-Harris Administration Secures Voluntary Commitments from Leading Artificial Intelligence Companies to Manage the Risks Posed by AI," July 21, 2023
8 See "Assessing the Effectiveness of Cross-Border Data Flow Regulations in the Age of Artificial Intelligence (AI)," Desmond Israel, 2023.
9 See, e.g., "Antony Blinken & Gina Raimondo: To shape the future of AI, we must act quickly," July 24, 2023.
10 Figures based on current dollars of value added, data available at "Digital Economy," last updated November 22, 2022, Bureau of Economic Analysis, US Department of Commerce.
11 Digital trade is relatively difficult to define, track, and value. The official data presented here, though still significant in scale, do not capture the full contribution of digital services to the economy, including the contribution to traditional goods and services production and the household welfare gains from free digital services. See "Measuring digital trade, OECD Going Digital Toolkit Notes," Annabelle Mourougane.
12 Table 3.1. U.S. Trade in ICT and Potentially ICT-Enabled Services, by Type of Service, last updated July 6, 2023, Bureau of Economic Analysis, US Department of Commerce.
13 See "Cross-border data flows: Designing a global architecture for growth and innovation," Zurich Insurance, June 2022 at p.9.
14 "How Barriers to Cross-Border Data Flows Are Spreading Globally, What They Cost, and How to Address Them," Nigel Cory & Luke Dascoli, July 2021.
16 See "2023 National Trade Estimate Report on Foreign Trade Barriers," Office of the US Trade Representative ("2023 USTR NTE Report"), March 2023.
17 See "Fostering Cross-border Data Flows with Trust," OECD Digital Economy Papers, No. 343, December 2022 at p.13.
18 See "Trade and Cross-Border Data Flows," OECD Trade Policy Papers, No. 220, January 23, 2019, at pp.30-31.
19 "Joint Statement on Electronic Commerce," January 25, 2019 (WT/L/1056).
20 The GATS market access obligation set forth in Article XVI generally requires each Member, with respect to market access, to "accord services and service suppliers of any other Member treatment no less favorable than that provided for under the terms, limitations, and conditions agreed and specified in its Schedule." The national treatment obligation set forth in Article XVII obligates each Member, with respect to the "sectors inscribed in its Schedule" and "subject to any conditions and qualifications set out therein," to "accord to services and service suppliers of any other Member…treatment no less favorable than that it accords to its own like services and service suppliers."
21 The four modes of service supply, set forth in Article I:2, cover the supply of a service:
1. from the territory of one Member into the territory of any other Member;
2. in the territory of one Member to the service consumer of any other Member;
3. by a service supplier of one Member, through commercial presence in the territory of any other Member; and
4. by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member.
22 Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, adopted 20 April 2005, as modified by Appellate Body Report WT/DS285/AB/R, paras. 6.281-6.285 (US – Gambling).
23 Panel Report, China – Certain Measures Affecting Electronic Payment Services, WT/DS413/R and Add.1, adopted 31 August 2012, para. 7.618, n.808 (China – Electronic Payment Services).
24 GATS Article XIV(a).
25 GATS Article XIV(b).
26 GATS Article XIV(c).
27 GATS Article XIV chapeau.
28 GATS Article XIV bis:1(b)(iii).
29 See Geneva Ministerial Declaration on global electronic commerce, May 25, 1998 (WT/MIN(98)/DEC/2).
30 "WTO members elect Chairperson for 13th Ministerial Conference in Abu Dhabi," World Trade Organization, July 24, 2022.
31 See Ministerial Decision on the Work Programme on Electronic Commerce, June 17, 2022 (WT/MIN(22)/32).
32 See, e.g., Work Programme on Electronic Commerce, Moratorium on Customs Duties on Electronic Transmissions: Need for a rethink, Communication from India and South Africa, July 13, 2018 (WT/GC/W/747).
33 See "Joint Initiative on E-commerce," World Trade Organization; see also "Joint Statement Initiative on Electronic Commerce," Geneva Trade Platform.
34 See id.
35 See "WTO Joint Statement Initiative on E-commerce: Statement by Ministers of Australia, Japan and Singapore," January 20, 2023.
36 "E-commerce negotiations: Members finalise 'clean text' on unsolicited commercial messages," World Trade Organization, February 5, 2021.
37 See "E-commerce co-convenors to issue updated negotiating text," World Trade Organization, July 28, 2023.
38 The WTO's rule-making function faces challenges given the size of its membership (currently, there are 164 Members) and the difficulty in reaching consensus. There has been little success in concluding new agreements during the almost 30 years of the WTO's history. Separately, the WTO dispute settlement system, previously considered the "crown-jewel" of the WTO is severely constrained because the Appellate Body has been effectively rendered inoperable in recent years.
39 See "The United States Officially Withdraws from the Trans-Pacific Partnership," Office of the US Trade Representative.
40 "Comprehensive and Progressive Agreement for Trans-Pacific Partnership text and resources."
41 See "Which countries are in the CPTPP and RCEP trade agreements and which want in?" July 27, 2023, Jeffrey J. Schott.
42 "Accession protocol of the UK to the CPTPP," July 17, 2023.
43 See "Data Governance and Trade: The Asia-Pacific Leads the Way," Robert Holleyman, January 2021.
44 CPTPP Article 14.3.
45 KORUS Article 15.3.
46 US-Japan DTA Article 7; USMCA Article 19.3.
47 CPTPP Article 14.11.
48 US-Japan DTA Article 11; USMCA Article 19.11.
49 USMCA Article 17.17 sets out a specific obligation to allow cross-border transfers of information in the financial services sector, subject to certain exceptions. In the US-Japan DTA, financial services are covered by the general data flow obligation in Article 11.
50 CPTPP Article 14.13.
51 US-Japan DTA Article 12; USMCA Article 19.12.
52 US-Japan DTA Article 13; USMCA Article 17.19.
53 CPTPP Article 14.17.
54 US-Japan DTA Article 17; USMCA Article 19.16.
55 CPTPP Article 29.1.3; US-Japan DTA Article 3.1; USMCA Article 32.1.2.
56 CPTPP Article 29.2; US-Japan DTA Article 4; USMCA Article 32.2.
57 See "Statement on Indo-Pacific Economic Framework for Prosperity," The White House, May 23, 2022.
58 The 14 countries participating in the IPEF discussion are Australia, Brunei Darussalam, Fiji, India, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Philippines, Singapore, Thailand, the United States, and Vietnam. With the exception of India, which declined to join the Ministerial Statement on the trade pillar, all 14 countries will participate in negotiations for all four pillars, at least at first. See "United States and Indo-Pacific Economic Framework Partners Announce Negotiation Objectives," Office of the US Trade Representative, September 9, 2022.
59 Ministerial Text for Trade Pillar of the Indo-Pacific Economic Framework for Prosperity.
60 April 2023 Pillar I: Trade Chapter Summaries, Office of the US Trade Representative.
61 See "Raimondo Says Most of IPEF Negotiations Should Conclude by Late November," July 26, 2023.
62 US-Taiwan Initiative on 21st Century Trade Negotiating Mandate, August 17, 2022.
64 Agreement Between the American Institute In Taiwan And The Taipei Economic And Cultural Representative Office In The United States Regarding Trade Between The United States Of America And Taiwan, June 1, 2023.
65 The first of these e-commerce chapters was in the EU–CARIFORUM Economic Partnership Agreement in 2008.
66 See "Data Is Different: Why the World Needs a New Approach to Governing Cross-border Data Flows," Susan Ariel Aaronson, 2018.
67 Free Trade Agreement Between the European Union and New Zealand.
68 EU-Chile Advanced Framework Agreement.
69 Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part.
70 EU-Japan Digital Trade Principles.
71 EU-Republic of Korea Digital Trade Principles.
72 EU-Singapore Digital Trade Principles.
73 See "Joint Statement on the launch of negotiations for an EU-Singapore digital trade agreement," 20 July 2023.
74 See id.
75 See "Commission Staff Working Document on digital trade negotiations with the Republic of Korea and with Singapore."
76 Case C‑311/18, "Schrems II."
77 EU-U.S. Data Privacy Framework.
78 Adequacy decision for the EU-US Data Privacy Framework, July 10, 2023.
79 See "Data Privacy Framework (DPF) Program Overview."
80 "Digital Economy Partnership Agreement (DEPA)."
81 See "Digital economy agreements are a new frontier for trade – here's why," World Economic Forum.
82 See "Korea becomes first country to join DEPA as non-founding member," June 12, 2023.
83 "Singapore-Australia Digital Economy Agreement (SADEA)."
84 "Korea-Singapore Digital Partnership Agreement (KSDPA)."
85 "UK-Singapore Digital Economy Agreement."
86 "Australia-UK FTA Official Text," and New Zealand - United Kingdom Free Trade Agreement.
87 See "Chapter 2: The New Generation of 'Digital' Trade Agreements: Fit for Purpose?" Peter Lovelock.
88 "G7 Trade Ministers' Digital Trade Principles," Gov. UK, October 22, 2021.
90 "Results of the G7 Digital and Tech Ministers' Meeting in Takasaki, Gumma," April 30, 2023.
92 See "APEC 2023: An Old Foundation for New Architectures," Center for Strategic & International Studies, January 31, 2023.
93 "Global Cross-Border Privacy Rules Declaration."
94 "Declaration on Government Access to Personal Data Held by Private Sector Entities."
95 See, e.g., "Joint Statement on the United States-India Trade Policy Forum, Office of the US Trade Representative."
96 See, e.g., "Joint Statement of the U.S.-Japan Economic Policy Consultative Committee Strengthening Economic Security and the Rules-Based Order," July 29, 2022.
97 "The Atlantic Declaration: A Framework for a Twenty-First Century U.S.-UK Economic Partnership," June 8, 2023.
98 See, e.g., "USTR Releases 2023 National Trade Estimate Report on Foreign Trade Barriers," March 31, 2023.
99 For example, in a November 2021 speech on digital trade, Ambassador Katherine Tai stated that USTR is asking "big and consequential questions" about its digital trade policy, including how to "balance the right of governments to regulate in the public interest, with the need for rules that guard against behavior that discriminates against American workers and businesses[.]" See "Remarks of Ambassador Katherine Tai on Digital Trade," Office of the US Trade Representative, November 3, 2021. In addition, during her Senate confirmation process, Ambassador Sarah Bianchi (Deputy USTR for Asia, Services, and Investment) contended that "existing digital trade agreements fail to acknowledge the critical role of workers in the digital economy." See Responses to Questions for the Record, June 24, 2021.
100 "Trade Justice Education Fund Letter to President Biden," November 2, 2021.
102 "Comments of the Labor Advisory Committee on the Indo-Pacific Economic Framework," April 11, 2022.
103 "A Worker-Centered Digital Trade Agenda," AFL-CIO, February 7, 2023.
104 Article I, Section 8 of the US Constitution.
105 Article II of the US Constitution.
106 A typical trade promotion authority legislation commits Congress to vote on bills implementing trade agreements within a fixed time period, with limited debate, without amendment, and subject to an up-or-down vote, once the president submits an implementing bill.
107 See, e.g., "Obama Asks Both Parties To Give Him TPA; Makes Case For Trade Deals," Inside US Trade, January 21, 2015; See also "Statement of the Hon. Robert B. Zoellick, United States Trade Representative, to the US Senate Finance Committee," February 7, 2002.
108 See "Trade's Mini-Deals," 62 Va. J. Int'l L. 315 (2022), Kathleen Claussen.
109 See "Distinguishing Treaties From Executive Agreements," Georgetown Law Library.
110 See "Trade and the Separation of Powers," 107 California Law Review. 583 (2019), Timothy Meyer and Ganesh Sitaraman.
111 See, e.g., "Biden's 'Go It Alone' Trade Deals Draw Warnings From Congress," The Wall Street Journal, March 19, 2023.
112 United States-Taiwan Initiative on 21st-Century Trade First Agreement Implementation Act, 19 U.S.C. 4203(c)(2)(C).
113 H.R.1153 - DATA Act.
114 S.686 - RESTRICT Act.
115 S.1974 - Protecting Americans' Data From Foreign Surveillance Act of 2023.
116 H.R.4683 - Closing Loopholes for the Overseas Use and Development of Artificial Intelligence Act.
117 "Remarks By Under Secretary Lago – March 14, 2023," US Department of Commerce International Trade Administration, March 14, 2023.
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