On November 5, 2015, the White House released the proposed text of the Trans-Pacific Partnership Agreement (the “TPP”) containing a chapter on cross-border data transfers in the context of electronic commerce. In the chapter on Electronic Commerce, Chapter 14, the TPP includes commitments from participating parties to adopt and maintain a legal framework to protect personal information, and encourages cross-border data transfers to help facilitate business and trade.
Article 14.8, entitled Personal Information Protection, would commit participating countries to “adopt or maintain a legal framework that provides for the protection of the personal information of the users of electronic commerce.” The TPP advises countries to do so by taking into account principles and guidelines of relevant international bodies and to “encourage the development of mechanisms to promote compatibility between [the countries’] different regimes.”
In addition, Article 14.11, entitled Cross-Border Transfer of Information by Electronic Means, would commit participating countries to “allow the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.” For purposes of this section, “covered person” refers to any citizen or business of any participating country, but excludes financial institutions. The TPP, however, also recognizes that countries have different cross-border transfer regimes and laws, and therefore does not prevent participating countries from “adopting or maintaining measures inconsistent with [cross-border transfers] to achieve a legitimate public policy objective,” provided that the measure does not apply a restriction on trade, unjustly discriminate or impose restrictions larger than those required to complete the transfer.
The TPP has not yet been ratified by the 12 participating countries, including the U.S. Congress will likely have at least 90 days to analyze and vote on the TPP before sending it to President Obama for final approval.