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UK-Japan Trade Deal Could Create Data Gateway to USA

The Open Rights Group have warned that data privacy between the UK and the US could be comprised by the recently announced UK-Japan Free Trade Agreement

Published on November 11, 2020

World Data

The Open Rights Group (ORG), a UK organization advocating on issues relating to digital rights and privacy, has warned that UK-Japan Free Trade Agreement "punches [a] USA-sized hole in privacy", and the clauses in the deal "pose an existential threat to data protection rights in the UK".

The UK-Japan deal was announced in September, and described by the UK's International Trade Secretary, Liz Truss, as "a historic moment for the UK and Japan as our first major post-Brexit trade deal. The agreement we have negotiated – in record time and in challenging circumstances – goes far beyond the existing EU deal, as it secures new wins for British businesses in our great manufacturing, food and drink, and tech industries."

However, upon scrutinising the deal, which was formally published in October, the ORG have highlighted a number of concerns that the agreement could allow data on people in the UK to be shared more easily with the US.

In their notes, the ORG say that the deal "contains brand new clauses which place the 'free flow of data' between the UK and Japan, and from there on to other trade partners, over and above data protection rights." The ORG goes on to explain that "A 'free flow of data' approach would be a radical departure from the current position. Today, UK companies must only transfer your personal data where they can guarantee that you continue to have similar rights over access, correction and deletion of that data. The UK-Japan agreement would force the UK to accept lower data protection frameworks, including voluntary self-regulation".

The ORG argues that this "free flow of data" approach will allow information to pass to the USA with fewer restrictions, saying that "this will permit UK data to be transferred to the USA, without it being kept under GDPR-style protections."

The circumstances are likely to be relevant to Americans in the UK, as well as 'accidental Americans'. For Americans, legislation like FATCA - the Foreign Account Tax Compliance Act - require overseas financial institutions to report on the financial accounts of US Citizens. This has led to situations where some Americans are refused basic financial accounts due to the onerous nature of reporting, as well as the high liability faced by institutions which don't report accounts correctly.

FATCA was recently described by lawyer Filippo Noseda as a "data privacy disaster waiting to happen". Noseda is currently working on a case aimed at highlighting the privacy and data security concerns around FATCA, and the transmission of information from Europe to the US. The ORG's assessment of how the UK-Japan FTA affects UK-US information sharing could add to those concerns.

The ORG does explain that there are ways to strengthen privacy regulations, and that Parliament is one of the bodies able to introduce rules to do this, but at this time, it argues that "It is unacceptable for the UK to shift from the high levels of data protection we currently enjoy to a data free-for-all through obscure clauses in a trade agreement", and is urging Parliament to "demand answers, and ensure the Government “freezes” these clauses from the treaty."

For the full briefing from the ORG, go to www.openrightsgroup.org/blog/japan-trade-deal-punches-usa-sized-hole-in-privacy

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