ICC White Paper on Trusted Government Access to Personal Data Held by the Private Sector

Lack of trust in cross-border data flows leads to uncertainty that may discourage the participation of individuals, businesses, and even governments in the global digital economy. Without clear parameters and rules around government access to personal data, including access across international borders, legal uncertainty will persist, likely leading to the proliferation of data localisation measures, which negatively impact the global digital economy. Achieving consensus on common principles for trusted government access to personal data held by the private sector will support the transfer of data between jurisdictions by commercial entities and result in positive economic and social impacts.

Cross-border data flows are at the heart of the world’s economy, as companies rely on such flows to conduct their day-to-day business with customers and partners, innovate in their business and operations, and compete more effectively, in sectors as diverse as agriculture, healthcare, manufacturing and banking.

The processing and transfer of personal data are integral to many of these exchanges, making trust a vital element for resilient and sustainable economic growth. However, trust in international data flows is being eroded over concerns that government demands to access data may conflict with universal human rights and freedoms, including privacy rights, or cause concerns and conflicts with domestic laws when such access transcends borders. These increased concerns and reduced trust have led to uncertainty that may discourage individuals,’ businesses,’ and even governments’ participation in a global economy, and can negatively impact inclusive and resilient economic growth. This lack of trust can lead to disruption in global data flows and thus business operations, products and services. It can also serve as the rationale for an increasing number of compelled data localisation measures globally.

Defining high-level principles and safeguards for government access to personal data held by the private sector is urgently needed to address cross-border data flow with trust and provide a much-needed foundation that can lead to more scalable measures and global dialogues. In addition, cooperation between governments and stakeholders including business and multilateral organisations is needed to advocate for interoperable policy frameworks that would facilitate cross-border data flows, enabling data to be exchanged and used in a trusted manner, thereby aiming for high privacy standards.

This paper documents the value of cross-border data flows for business operations and discusses the impact of unconstrained and disproportionate government access to personal data as a barrier to the free flow of data with trust. The paper then offers a set of principles and recommendations for consideration as a starting ground towards the establishment of common global rules on obliged access to personal data held by the private sector.

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