#CyberFLASH: The TPP Agreement and Privacy

Apple Hosts Event At Company's Town HallThe Trans-Pacific Partnership Agreement (the “TPP Agreement”) is a regional trade and investment agreement negotiated by 12 Pacific Rim countries representing 40 percent of the global economy. Canada, the United States, Mexico, Japan, Malaysia, Vietnam and Australia are signatories. The TPP Agreement, which has 30 Chapters, ushers in a comprehensive program of tariff reduction for goods and services and establishes binding rules in a wide-range of subject areas, including financial services, cross border trade in services, investment, competition policy, intellectual property, telecommunications and electronic commerce. The TPP Agreement also touches on a number of privacy-related issues, including the cross-border flow of information, spam and encryption technology.

Cross-Border Flow of Information

The free flow of information across borders is important for international commerce and the trade in services, particularly information technology services. However, a number of countries regulate the export of data to other jurisdictions and/or require that service providers use local data servers, equipment and infrastructure as a condition of doing business. This has raised concerns that restrictions on cross-border information flows and data localization requirements may be misused as disguised trade barriers to favour domestic service providers.

Under the TPP Agreement, each Party must allow the cross-border transfer of information by electronic means, including personal information, in the course of business activities. In addition, no Party can require a service provider to use or locate computing facilities in its territory as a condition for conducting business in the territory. Exceptions are permitted in order to achieve a legitimate public policy objective, provided that the measure adopted is proportional to the objective and the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.

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