Data Protections Legislation Used as a Shield for President Biden’s China Policy

In the United States, perceptions of data have rapidly changed, shifting towards the commoditization of data, and challenging the long-held view that data is just a vehicle used to facilitate transactions. Using the argument that data is a resource to be protected, President Biden and Congress have been quick to utilize this shift in perceptions, claiming they must establish comprehensive data protection policy to advance national security objectives—particularly with regard to the People’s Republic of China (PRC). But in recent months, data protection policy has been used as a catch-all to justify advancing other key administration priorities in the lead-up to November’s presidential election.  

That is not to say that the data protection concerns voiced by the administration are invalid—the lack of national privacy legislation has been a growing foreign policy problem for the United States—but some of the legislation the Biden administration has put forth seeks to achieve an additional economic and political priorities vital to their agenda outside of its stated objective of protecting American data against China.  

Investigation into Connected Vehicles

A prime example is President Biden’s request to the Department of Commerce to open an investigation into “connected vehicles,” with a focus on PRC-manufactured technology in electric vehicles. At the onset of the investigation, Secretary of Commerce Gina Raimondo said the focus of the investigation was “to understand the extent of the technology in these cars that can capture wide swaths of data or remotely disable or manipulate connected vehicles.”  

Despite his climate commitments, President Biden and some Democrats in Congress have deemed Chinese electric vehicles to be an “existential threat to the American auto industry” and have been seeking a rationale to justify increasing tariffs. Later, when asked about the progress of the investigation, Raimondo admitted, “we are going as fast we can to identify the risks and take any actions we think are national security concerns… If China is subsidizing the vehicles in a way that puts American workers at a disadvantage, we have to do something about that,” revealing that Commerce’s investigation mirrors the scope of the EU’s probe into Chinese electric vehicle subsidies and is not limited to the national security threats from connected Chinese vehicles. No findings from the investigation have been made public yet, but regardless of the outcome, the conclusions will likely be used in the lead-up to the election to strengthen tariffs on Chinese electric vehicles.   

Digital Trade Provisions

Other examples include the Biden administration’s decision to step away from digital trade provisions at the World Trade Organization, which prevents countries from taxing digital imports. Despite coming under heavy fire from American corporations for their decision, the administration has begun to claim the digital import protections preventing digital tariffs are too beneficial for data exploitation by foreign governments, including China.  

U.S. Trade Representative Katherine Tai reiterated the administration’s current stance during her testimony this month to the House Ways and Means Committee as stemming from “addressing the risks and harms of PRC technology policies and how they affect Americans and their data.” She noted that the United States needs to overcome the old-time beliefs on data, and thus the “trade policies that treat data in an outdated way must be updated to reflect the American people’s privacy, intellectual property rights and national security rights. The agreement preventing tariffs on digital trade is a similar stuck-in-time moment, and the [United States] hopes to see an evolution in its policy debate.” Notably, when the decision to withdraw from the digital trade talks was first announced, Tai’s office the reason was to “give Congress room to regulate big tech firms.” But in the absence of significant regulation, Tai’s office has since changed their justification for their decision to withdrawal to data protections against China. They have stuck to this narrative even when the United States’ absence at the WTO negotiations has given China further room to negotiate their own preferred norms within digital trade tariffs, much to the chagrin of American tech firms.  

During her testimony Tai also pointed to several bills that have advanced through Congress with respect to onward transfers of data, data flows and data localization, including Congress’s landmark TikTok legislation. But Congress is also guilty of using data protections to advance other priorities, in this case using the legislation to campaign on. Within the TikTok legislation itself, the timeline provided for TikTok to divest itself from China or seek a ban has intentionally been designed for well after November’s election, allowing members of Congress to use the platform to campaign without risking alienating the youth vote. In fact, in the final iteration of the bill, the delay was extended further, allowing for almost a full year to pass before a ban had to be instituted. This is despite all the self-same claims from Congress that TikTok poses a massive threat both as a platform to influence the election and a potential data protection threat.  

In a time of great partisan divide, both the Biden administration and Congress have used China to advocate for increased data protections, while using that same legislation to advance other economic and political priorities vital to their agenda. both the Biden administration and Congress have successfully implemented several pieces of legislation that were very narrowly focused on data, its inclusion in rhetoric should be an invitation to look deeper into what other aims are accomplished from the policy.