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What a Trump re-election might mean for Australian data and privacy lawyers

Former US president Donald Trump is a coin-flip away from returning to the White House. If Trump – a convicted felon who has been found liable for sexual abuse, defamation, and fraud – does indeed retake the presidency, here’s what it could mean for Australian practitioners in the data and privacy space, according to three BigLaw partners.

user iconJerome Doraisamy 17 June 2024 Big Law

Official White House Photo by Shealah Craighead

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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, who – in addition to his recent criminal conviction and multiple civil liability findings – still faces more than 50 criminal charges.

Trump has been leading Biden in both national and swing-state polls; however, that gap is starting 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.

 
 

US federal privacy legislation

Lander & Rogers partner Melissa Tan recounted that, since taking office in early 2021, the Biden administration has been vocal on tackling data and privacy matters, including providing greater protections for children’s privacy and safeguarding Americans’ sensitive personal information from “countries of concern”, as well as calling for a federal privacy law.

“Earlier this year, a new draft federal privacy bill was announced, which includes a private right of action for individuals. However, despite broad bipartisan support, Congress is yet to push through the federal privacy legislation,” she said.

“If Trump wins, the prospects of the proposed federal privacy legislation being legislated may be slim, and the policy on data and privacy may be less predictable, particularly if these issues are politicised by the Trump administration.”

Dentons partner Michael Park supported this, noting that Trump “appears unlikely to adopt a rights-based federal privacy law, having criticised the EU GDPR (claiming it protected cyber criminals) and repealed the Obama administration’s online privacy safeguards, which would have required internet service providers to obtain permission before sharing customer data”.

Moreover, Park added, “having attempted bans on Chinese technology companies himself, Trump will likely fortify President Biden’s measures targeting alleged risks posed by these entities”.

As a result, Tan surmised, “Australian legal practitioners will need to be ready for new data and privacy legislation [that] may differ from the approach of the Biden administration, and evaluate how this will impact on the response required under Australian privacy laws”.

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.

Threat actors

A second Trump term, Winokur suggested, “would add some uncertainty in international relations”.

“Notably, Trump appears to have a closer relationship than Biden to certain leaders of countries where threat actor groups targeting Australian businesses for cyber attacks reside,” he said.

This said, Winokur added that “whether this translates into a reduced number of attacks against businesses based in Australia is unclear, and I wouldn’t say it is likely”.

AI

Finally, Park recalled that – during his presidential term – Trump “enthusiastically promoted AI with ‘American values’” and associated research and development.

If successful, he said, “Trump’s approach to AI will likely foster similar principles to build economic and geopolitical competition and promote ‘continued American leadership’ in AI”.

“This has the potential to make it more difficult for Australian AI providers to successfully enter the US market,” Park said.

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