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Officials from the U.S. and Kenya recently met in Washington DC for their first conceptual discussions of the US-Kenya Strategic Trade and Investment Partnership (STIP). This STIP is the Biden administration’s alternative to the Trump-initiated U.S.-Kenya Free Trade Agreement (FTA) negotiations.
The Kenya STIP is the latest in a patchwork of pacts and agreements by the US that will deal with so-called “digital trade” among other issues. Tech giants and corporates mostly based in the US have made clear their hopes for the STIP, according to new research from Strathmore University’s Centre for Intellectual Property and Information Technology Law (CIPIT) based in Nairobi.
What exactly is the US-Kenya STIP? What are the concerns of digital rights experts and advocates in Kenya? Why should legislators in the US and Kenya care about its implications for consumer privacy and Big Tech accountability?
• Dr. Melissa Omino, Acting Director, Strathmore University’s CIPIT
• Dr. Paul Ogendi, University of Nairobi, Faculty of Law-Kisumu Campus
• Melinda St. Louis, Director of Public Citizen’s Global Trade Watch
Japan champions the concept of Data Free Flow with Trust (DFTT): enabling cross-border data flows while preserving privacy and security. Unfortunately, the application of this concept by Japan is problematic and not conducive to the necessary convergence towards higher standards required for DFTT to work.
A new report from the Digital Trade Alliance, supported by the Digital Freedom Fund, warns that the reality of DFTT in Japan appears to be signing up to different sets of rules that are likely incompatible with each other. The country is currently home to two “free data flow areas,” one deemed compliant with EU privacy rules on personal data, namely adequacy under the General Data Protection Regulation (GDPR); and the other under recent trade agreements like the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the US-Japan Digital Trade Agreement (USJDTA). Japan has committed to some restrictions on EU data flowing freely to the US, but this two-tier regime could mean breaching its digital trade obligations.
The Japanese data protection framework has improved in recent years although several concerns remain that create risks for individuals, particularly around transparency and enforcement of the complex rules for transfers. The main problem remains the risk and uncertainty from the conflicting standards that the adequacy agreement and Japan’s trade agreements place on the control of cross-border data flows.
Javier Ruiz, consultant covering a broad range of digital and technology policy and advocacy areas
Dr. Svetlana Iakovleva, Postdoctoral Researcher at the Institute for Information Law (IViR) of the University of Amsterdam.
Prof. Hiroshi Miyashita, Associate Professor of Law, Faculty of Policy Studies, at Chuo University in Japan
The European Union has been a leader in setting high standards for strong consumer data privacy, as reflected by its General Data Protection Regulation (GDPR), which much of the world has begun to emulate.
Recently, the European Parliament and Council of the EU reached a political agreement on two path-breaking laws which have the potential to act as a check on Big Tech overreach: the Digital Markets Act (DMA) and the Digital Services Act (DSA). The DMA will give the European Commission unprecedented powers to monitor and hold accountable digital platforms, or so-called “gatekeepers.” The DSA focuses on user safety and platform accountability among intermediaries.
There remain many questions, particularly in the United States, about the details of the DMA and DSA and how they will be implemented. Already, U.S. Big Tech companies are taking aim at these laws in various fora.
The Digital Trade Alliance is a collaborative effort of digital rights and consumer groups assembled in 2018. The Alliance model provides effective advice and expertise to us in order to structure the transnational debate on digital trade.
The Alliance is an exclusive, closely-knit cohort of experts and social leaders who operate with a high degree of trust and hands-on experience.
We share ideas, network together, and collaborate closely to achieve change.
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