The One Trade Agreement Biden Should Sign Up For Now

DEPA is one of the few trade agreements that acknowledges that because data flows are global, a patchwork of national privacy rules will not adequately protect peoples’ privacy or their autonomy online. Hence DEPA includes further language that delineate the principles that underpin strong protection frameworks, including transparency, data quality, and accountability. In so doing, it provides both a road map for interoperability of national data regimes and a cooperative approach.

That puts DEPA in contrast with the U.S. approach to these issues. Obama and Trump administration trade officials argued that the template (which one can see in the U.S.-Mexico-Canada Agreement) is the “gold standard” for such agreements. This template encourages the free flow of data across borders and bans national strategies that could impede such flows such as policies requiring that data be stored in local servers. But the U.S. abandoned the gold standard in 1933. America’s current template is both out of date and inadequate: It does not sufficiently foster global cooperation on the complicated issues of data governance, cybersecurity, or platform regulation. Nor does it do enough to promote interoperability of national approaches.

DEPA has its own inadequacies. It doesn’t say anything about potential barriers to trade such as censorship or disinformation, both of which can undermine democracy. (The U.S. is currently investigating censorship as a trade barrier.) Meanwhile, disinformation has some similarities to spam, which almost all digital trade agreements regulate. They could add language encouraging signatories to adopt and enforce laws banning spambots, which disseminate both. Nonetheless, DEPA establishes a more up-to-date model for what digital trade agreements should look like. For that reason alone, the U.S. should sign on and encourage other nations to do the same.

In its short time in office, the Biden administration has attempted to reestablish cooperative relations with many U.S. trade partners that suffered under the Trump administration’s protectionist policies. Nonetheless, Biden officials may be reluctant to move forward with new trade agreements. Under the Constitution, the executive branch shares authority for trade policymaking with Congress. Generally, to join a new trade agreement, the Biden administration would need congressional assent. However, the Trump administration argued it could accede to the U.S.-Japan digital trade agreement because the agreement was limited to one sector and met the guidelines provided by Congress under trade promotion authority passed in 2015. The Biden administration could, if it wanted, make a similar argument to justify joining DEPA or any other digital trade agreement.