On September 30, 2018, the U.S., Mexico and Canada announced a new trade agreement (the “USMCA”) aimed at replacing the North American Free Trade Agreement. Notably, the USMCA’s chapter on digital trade recognizes “the economic and social benefits of protecting the personal information of users of digital trade” and will require the U.S., Canada and Mexico (the “Parties”) to each “adopt or maintain a legal framework that provides for the protection of the personal information of the users[.]” The frameworks should include key principles such as: limitations on collection, choice, data quality, purpose specification, use limitation, security safeguards, transparency, individual participation and accountability.
In adopting such a framework, Article 19.8(2) directs the Parties to consider the principles and guidelines of relevant international bodies, such as the APEC Privacy Framework and the OECD Recommendation of the Council concerning Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data, and Article 19.8(6) formally recognizes the APEC Cross-Border Privacy Rules (the “APEC CBPRs”) within their respective legal systems:
Art. 19.8(6) Recognizing that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes. The Parties shall endeavor to exchange information on the mechanisms applied in their jurisdictions and explore ways to extend these or other suitable arrangements to promote compatibility between them. The Parties recognize that the APEC Cross-Border Privacy Rules system is a valid mechanism to facilitate cross-border information transfers while protecting personal information.
In addition, Article 19.14(1)(b) provides that “the Parties shall endeavor to… cooperate and maintain a dialogue on the promotion and development of mechanisms, including the APEC Cross-Border Privacy Rules, that further global interoperability of privacy regimes.”
The APEC CBPRs were developed by the 21 APEC member economies as a cross-border transfer mechanism and comprehensive privacy program for private sector organizations to enable the accountable free flow of data across the APEC region. Organizations must be certified by a third-party APEC recognized Accountability Agent to participate in this system. The CBPRs are binding and enforceable against participating companies.
The USMCA must still pass the U.S. Congress, the Canadian Parliament, and the Mexican Senate.