Brace yourselves, it’s going to be a bumpy ride. With Donald Trump heading to the White House in January, it is time to think what his presidency will mean in policy terms. In particular, could we see a data “Trexit” with Trump choosing to tear up existing agreements?
Policy details are scant, but there are some clear indications of his direction of travel which should give the UK data industry pause for thought. The first is his “America First” position and the second is his emnity towards immigration. Combined, these could lead the surprise winner of yesterday’s election to tear up the US-EU Privacy Shield and to block attempts to establish federal data protection laws.
During his campaign, Trump suggested creating a national database of Muslims as an anti-terror resource for national security services. While likely to be unconstitutional, the idea shows his support for heightened access to personal information in the name of homeland security and a low regard for privacy and data protection.
It was precisely on these grounds that the previous framework for data transfers between the US and the EU - the so-called Safe Harbour - collapsed in the face of Max Schrem’s challenge to Facebook. What this revealed was that there was almost no oversight or barrier to American intelligence agencies snooping on Europeans. The new Privacy Shield is intended to give EU data held in the US the same level of protection as when it remains in Europe.
So what if Trump threw that shield away in the name of US pre-eminence? In theory, the EU would seek to prevent data transfers and use powers under existing trade agreements to enforce the requirement.
This is where the possibilities of a total change get really interesting. Trump might also choose to tear up some of those trade treaties and defy overseas powers - that was the very essence of his campaign, after all. Legal battles on those issues would be likely to take years, potentially far longer than he might be president.
Now throw in the other great political upset of the year, Brexit. Once the UK leaves the EU, it is not at all clear how data transfers between the EU and the UK and from the UK to the US will be governed, unless and until this country signs up to Privacy Shield in both directions.
Trump could hold out a very tempting proposition to the UK - lower the threshhold of data protection and allow back door access to intelligence data gathering in return for a quick and attractive data trade deal. That could position Britain as an offshore data processing centre for the major US-owned data platforms. Theresa May might go even further and offer attractive tax breaks to those companies in return for moving their headquarters here.
Think it couldn’t happen? Google, Apple, Facebook and eBay have effectively spent this century operating under just these conditions - receiving tax incentives from governments in Ireland and Luxembourg while transferring data under a framework that was not worth the paper it was printed on.
The saying goes that history repeats itself, first as tragedy, then as farce. When you think about what President Trump might mean for the UK data industry, just bear that in mind…