Data free flow with trust: current landscape, challenges and opportunities

This article explores the efforts to achieve ‘data free flow with trust', highlighting concerns around foreign government access to personal data for national security and law enforcement. Governments increasingly seek data held by private firms, raising significant data protection challenges and leading to mistrust among jurisdictions and the implementation of data localization mandates. The article analyzes three key legal initiatives: First, the EU adequacy model, which permits data transfers to countries with adequate data protection. While important and influential in setting global standards, its effectiveness is limited outside the EU, especially when countries with extensive surveillance laws adopt it without meeting European standards. The model's reliance on unilateral decisions can also create legal uncertainties. Second, multilateral initiatives like the G7's DFFT and OECD's Declaration aim to build trust, though their impact is weakened by their non-binding nature. Lastly, binding agreements, such as the projected EU-U.S. e-evidence/cloud Act agreement, seek to balance lawful data access with human rights but remain few and focused on law enforcement access. The article concludes that rebuilding trust among democracies is essential and calls for enhanced multilateral cooperation, transparency, bilateral agreements, and a balance between security and privacy to support global data flows vital to the digital economy.