USCBC Comments on National Security Division; Provisions Regarding Access to Americans' Bulk Sensitive Personal Data and Government-Related Data by Countries of Concern

Department of Justice, National Security Division, Docket No. NSD 104

 

The US-China Business Council (USCBC) welcomes the opportunity to submit comments to the National Security Division of the Department of Justice (DOJ) regarding the advance notice of proposed rulemaking (ANPRM) outlining the proposed implementation of the regulations contemplated by the Executive Order (EO) of February 28, 2024, “Preventing Access to Americans' Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern.”

USCBC represents more than 270 American companies that do business with China. Our membership includes some of the largest and most iconic American brands, in addition to small- and medium-sized enterprises. Our members represent a wide range of industries and sectors, including manufacturers, professional services firms, life-science entities, high-tech companies, financial services firms, and others.

We support the Biden administration’s whole-of-government approach to protect Americans’ personal and sensitive data. Our businesses are stronger, whether it be in the United States or abroad, when sensitive networks are secure and free from malicious cyber-enabled activities. USCBC strives to act as a constructive partner to the Biden administration in thwarting bad actors engaged in espionage and threatening American citizens and entities.

USCBC also supports the need to continue the United States’ long-standing support for free and open cross-border data flows. This is a foundational element of digital trade and data governance that allows US entities to engage in investment and international commerce to the benefit of the US economy. While the EO states that this rule does not diverge from such policy, USCBC remains concerned that segments of the rule, or the implementation thereof, may indeed conflict with that guiding principle. In that same vein, USCBC is similarly concerned that the rule, as written, could potentially result in data localization. Data innovation is a key component of US companies’ international competitiveness, and the government should endeavor to encourage, not stymie, data flows that enable newfound drivers of global growth and success.

The United States should not aim to replicate China’s system which identifies specific classes of data with corresponding thresholds that require government approval to export. USCBC has consistently advocated to liberalize China’s system. The United States government should recall the principles of what has historically fueled America's competitiveness on the world stage, while also securing US national security interests. This means addressing risks in a way that does not create unintended consequences or outcomes that inadvertently further increase such security risks.

In our comments below, USCBC strives to act as a resource to the Department of Justice and the broader US government. Our submission provides specific feedback on key definitions, concepts, and elements posed in the ANPRM.

 

See our full submission: