Yesterday, it was confirmed that our country will complete Agreement with the United States on Mutual Trade and Investment. The first text of the contract details, section “digital commerce“, that “Argentina is committed to facilitating digital commerce with the United States by recognizing the United States as the appropriate jurisdiction under Argentine law for cross-border transfers of data, including personal data, and by nondiscriminating against U.S. digital services and products. Argentina also intends to recognize electronic signatures that are valid under U.S. law as valid under its own laws.”.
Although the document has no legal validity and is merely a statement of intent, it makes several points related to the digital world that have caught the attention of local experts.
While the final text and details still need to be written, several experts and lawyers have offered the following vision: HOW THIS AGREEMENT IMPACTS OUR PERSONAL DATAand the value they have and will have, especially if it is intimate data that we share without our knowledge (or consideration).
Some assure that this will improve the day-to-day operations of companies and will not affect end users. But others warn that it could put our privacy at risk. Among the latter is Javier Parello, an expert on public technology policy. “Published texts regarding personal data suggest that: Argentina will no longer be able to apply stricter regulations He analyzes how Argentines’ data is handled when they use American companies’ applications. The laws that currently govern Argentina have some aspects that are more protectionist than those used in the United States. This is done to make it easier for American companies to operate and manage their personal data. This is in contrast to other regulatory trends, such as Europe, where the trend is becoming more stringent.And Argentina was moving towards it through agreements and reform projects.
David Mielnik, a lawyer specializing in the application of AI to technology and law, explains that this section of the body of the contract is related to: Our law on the projection of personal data, this is Law No. 25,326. “It’s relatively old, so dates back to 2000 Recent technological developments are not taken into account. But in Article 12 Prohibit cross-border transfers of personal data To countries that do not provide adequate guarantees of protection. This agreement therefore explicitly recognizes the United States as a country that provides adequate guarantees of protection. This will drive the adoption of software, especially artificial intelligence, which inherently processes data. In other words, Facilitating the adoption of technologies that process in the United States Compared to other countries like China, I give it priority,” he analyzes.
The Access to Public Information Agency determines which countries provide adequate personal data protection guarantees. “This agreement eliminates the need to make that decision regarding the United States,” Mielnik explained.
Beatriz Busanice, president of the Via Libre Foundation, an NGO specializing in digital government and online law, views the details of the framework agreement with concern. “We are concerned about two main areas. Intellectual property and e-commerce. e-commerce agenda, especially Cross-border data traffic and US jurisdiction awareness “Adequacy with respect to Argentine law is a very serious issue, especially the fact that the United States does not have a data protection law at the federal level that guarantees the same framework of rights over personal data that Argentine citizens have,” he points out.
This law recognizes that we have an “old” law, but emphasizes that it is based on a European legal framework that is very protective of data protection rights. “Today, thanks to this law, we have complete control over our personal data. Poor law enforcement capacity and lack of data protection cultureHowever, an agreement with the United States of this nature would not in any way improve the rights of Argentines to their data, but would instead further weaken the poor protections we have for them,” Busanice added.
For this expert, Filing a lawsuit against a US company in North American territory requires a large amount of financial backing. It concerns the control of Argentine data, which the text of the agreement allows a priori.
On the other hand, Pablo Palazzi, lawyer, director of the Center for Technology and Society of the University of San Andres (CETYS) and partner at Allende & Blair, believes that the agreement is very positive for the country and its economy. “You have to look at the details when it is introduced from a personal data perspective, but Argentina has been following the European system for a quarter of a century. Argentina has become the first country in the region to be deemed permitted for data transfers from the European Union to Argentina.. The North American model, on the other hand, focuses more on innovation and technology than regulation. In other words, you will be able to do more with your personal data, including AI, without limits. Europe, on the other hand, has more restrictions in place. This agreement will make it easier to exchange data between Argentina and the United States.without taking any other legal action,” he points out.
According to Palazzi, this This will help promote e-commerce and create more trading partners for both countries.. “The issue to analyze going forward is that the United States is a federal country and only 20 out of 50 states have general privacy laws, so you have to look at where your data is going,” he emphasizes.
For technology lawyer Raul Martínez Fazzalari, there is no conflict between local law and this contract or what it says about data transfer. “When we accept the use of services like Uber, Spotify, and Netflix, to name a few, we: transfer personal data with consent; Because we accept the use of our Privacy Policy. For individual users, this does not mean any changes regarding their personal data. Companies will need to incorporate or adapt terms into their contracts, such as “disputes arising from personal data may be resolved in the jurisdiction of the United States.” Indeed, Facebook, for example, has jurisdiction in Ireland for non-residents of the United States and Canada. So it’s exactly the same. In reality, we don’t see any kind of conflict,” he says.
Regarding the acceptance of the use of the personal data that we provide today when using the social networks and services of US companies, Busaniche believes that “when we talk about the assimilation of jurisdiction in terms of adequacy, a lot of other personal data will begin to flow that are not necessarily flowing at the moment, at least legally, but this framework will enable them.” Much personal information other than that provided when using social networks, Examples include banking, medical, and insurance company information. This is not internationally circulating information, and we do not support its current circulation. The confidentiality of the issue is All the other data that makes up today’s economy. Economic value is extracted from it. And with this kind of harmony, they can flow without the control of the Argentine people,” he argues.
On the other hand, in the case of Martinez Fazzalari, There is already a lot of information out there, but Even within the framework of anti-money laundering laws. “Information flows. Generally, when a foreign company provides a service, people provide their personal data. They don’t care, for example, whether I have insurance or whether I provide the requested data. There is a contradiction when it affects rights such as the sale of data, but today it is already It’s happening. You search for something on Instagram and within minutes you see an ad for that product. Today, data is already being shared. Certain bilateral organizations are sharing data, obviously for research or security or cybersecurity issues, but they should.
According to Martinez Fazzalari, the system we currently use is called: Self-regulation of services: “Companies offering any kind of service set out terms and conditions for the use of their applications, and you decide whether to accept them. This is something that has been used for many years on all platforms, and it works. It’s true that there are disputes and there are unfair practices, but generally speaking, the system works.”
The fine print of the agreement (an implementation date has not yet been set) will have to define how far the data flows from Argentine users of U.S. services will be, whether it will be bidirectional, and what powers states, businesses and Argentine citizens will have to complain if problems arise.
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