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What a Biden re-election could mean for data and privacy lawyers Down Under
US President Joe Biden is currently trailing his predecessor, Donald Trump, in general election polls (a gap that may widen after a widely criticised debate performance last week). If, however, he can win re-election against Trump, here’s what it might mean for Australian practitioners in the data and privacy space, according to three BigLaw partners.
Jerome Doraisamy
In early November, Americans will head to the polls to re-elect one of its two most recent presidents: incumbent Joe Biden and Donald Trump – a convicted felon who has been found liable for sexual abuse, defamation, and fraud, who still faces more than 50 criminal charges.
Biden, however, has faced increasing concern about his age and thus capacity to handle the job of commander-in-chief, and those concerns have reached fever pitch (at least from media outlets) in the wake of a woeful performance in last week’s first debate between the two would-be presidents.
Trump retains a lead over Biden in both national and swing-state polls, but that gap has started to close in the wake of the New York criminal conviction for election interference, which could see the former president behind bars for part, or all, of a second term (although reports indicate the likelihood of jail time is low).
Whatever happens, Hall & Wilcox partner Eden Winokur told Lawyers Weekly, the outcome of the US election is “likely to have a major impact on US domestic politics and global affairs” – with lawyers in the data and privacy space needing to prepare for certain potential eventualities.
Recently, Lawyers Weekly reported on the potential outcomes for Australian data and privacy lawyers of a Trump re-election.
Data and privacy laws
Dentons partner Michael Park reflected that President Biden had not prioritised an overarching federal privacy law governing the private sector “despite relatively progressive rights-based law, such as the California Consumer Privacy Act, enacted at state level”.
Rather, Park said, “he has implemented alternatives including a framework allowing for data exchanges between the EU and USA and executive orders to address risks allegedly posed by Chinese technology companies”.
“The absence of a comprehensive federal private sector privacy law would continue the current difficulty Australian businesses face in doing business across the US where there is a complex patchwork of state-based privacy laws,” he said.
Lander & Rogers partner Melissa Tan pointed out that, earlier this year, a new draft federal privacy bill was announced, which includes a private right of action for individuals.
However, she added, “despite broad bipartisan support, Congress is yet to push through the federal privacy legislation”.
“If Biden wins a second term, we might see Congress be able to push through the proposed federal privacy legislation, which is unlikely to be legislated before the election,” she said.
“If the US does adopt a federal privacy legislation, this will have implications for Australian lawyers in advising on data and privacy matters, much like the EU’s GDPR.”
AI
On the artificial intelligence front, Park pointed out, President Biden’s executive order in October of last year, on Safe, Secure and Trustworthy Artificial Intelligence, suggests “continued prioritisation” of these risk-based AI principles (including risk mitigation approaches, privacy protection and American leadership, he suggested).
“This may, in turn, influence Australia’s approach to regulating AI going forward,” Park said.
“The Australian government has recently indicated it will also take a risk-based approach to AI regulation rather than the EU’s more prescriptive approach in the EU AI Act.”
Cyber threat actors
In the cyber security realm, Winokur noted that – in recent times – there has been a “good level of international cooperation” between law enforcement targeting threat actor groups perpetrating cyber attacks against Australian businesses.
This is something that he expects will continue should Biden be re-elected.
“With that said, the Biden administration has a fairly adversarial relationship with a number of countries where threat actor groups targeting Australian companies reside, and I expect that will continue if he is re-elected,” Winokur said.
National security
Whether Biden or Trump wins the 2024 US election, Tan said, it is “quite clear” that both broadly agree on the national security implications of technology, data and privacy policies, “and we will likely see” a continuation of measures aimed at protecting the data and privacy of American citizens, including cross-border data flows.
“Australian lawyers will need to be cognisant of how such measures can impact the supply chain and enforcement of privacy law in Australia, which is also undergoing changes,” she said.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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