Data Localization and Digital Trade Barriers: ASEAN in Megaregionalism
ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms, Cambridge University Press (Pasha L. Hsieh & Bryan Mercurio eds., 2019)
21 Pages Posted: 1 May 2019
Date Written: December 23, 2018
Regulatory intervention in cross-border data transfer has been a source of controversy in international economic law. The rise of data localization measures is an example in point. Kazakhstan, for instance, in 2005 passed a law requiring all data saved in the “.kz” domain to be remained within its territory, while, more recently, Russia enacted the Federal Law No. 242-EZ (Data Localization Law), mandating that processing of information regarding Russian citizens to be done via local servers. Similar initiatives can be also found in Australia, Brazil, Canada, China, India, and New Zealand, to name just a few. Too, ASEAN members like Vietnam, Indonesia, and Brunei have taken measures governing information flow. While regulators often justify their intervention of this kind in the name of public policy (e.g., personal privacy, national security, etc.), many of these measures nevertheless implicate global trade, thus raising concerns about digital protectionism. This is particularly so given lucrative economic interests as we are moving towards a world empowered by big data. How to draw a line between legitimate regulatory intervention and unjustifiable trade barriers when it comes to cross-border data flow becomes a crucial challenge facing trade policymakers of the 21st century. Against this backdrop, the purpose of this paper is three-fold. First, it contextualizes emerging challenges by stocktaking the source of trade concerns over cross-border data flow within and outside the ASEAN in the past few years. Second, we examine how trade policymakers address such concerns in the age of mega-regionalism. Finally, we then compare ASEAN countries’ approaches to data flow with those have been done in the context of preferential trade agreement (PTA). More specifically, we will identify the differences and similarities among the ASEAN members in terms of rules regulating international information flow. In doing so, we can assess whether, and if so, how, the ASEAN countries move towards a harmonized framework for data protection as envisaged in ASEAN Blueprint 2025.
Keywords: ASEAN, Data Localization, Data Protection, CPTPP, RCEP
JEL Classification: K33, K10, K30
Suggested Citation: Suggested Citation