Peter Swire, Senior Counsel at Alston & Bird, has co-authored a detailed article in Lawfare, “Limiting Data Broker Sales in the Name of U.S. National Security: Questions on Substance and Messaging,” analyzing the Biden Administration’s new Executive Order issued yesterday. Swire’s article summarizes key aspects and impacts of the Executive Order, which is intended to prevent Americans’ sensitive data from being obtained in bulk by entities connected to “countries of concern,” expected to include China, Russia, Iran, North Korea, Cuba, and Venezuela.
· First, the article analyzes whether the Executive Order can meet its stated goal of protecting U.S. national security. While the EO’s goal is to curtail counterintelligence, blackmail, and other national security risks that can result from countries of concern obtaining U.S. person data, the article points out how hostile foreign actors may be able to circumvent upcoming DOJ regulations authorized by the EO. Avoidance strategies may include limiting how much and what kind of data is involved in each transaction, operating in conjunction with domestic U.S. entities, and leveraging regulatory limitations within U.S. government agencies.
· Second, the article analyzes how U.S. digital trade policy may be gaining an appearance of shifting away from traditional commitments to the open Internet and free data flows, and towards regulating cross-border data flows. It discusses the potentially significant diplomatic, economic, and national security effects that could impact U.S. companies operating globally.
· Third, the article makes the case that the market superiority of American technology around the globe is a net positive for national security, and that imposing limits on data flows may harm the competitiveness of this technology abroad and thus harm U.S. strategic interests. Finally, the article argues that, even if U.S. policy is shifting with respect to countries such as China or Russia, U.S. policy – and the messaging supporting it – should remain explicitly committed to free data flows backed by accountability.
To read Swire’s full article, click here.
For a high-level analysis of the Executive Order, read our earlier blog post here.
