The Dilemma and Balance between Trans-border Data Flow and Data Protection on Issue of Data Localization in The TPP

隨著全球電子商務的蓬勃發展，為在資訊流通與資料保護之間取得平衡，跨境資訊流動議題在國際經貿整合中往往也成為各國談判的焦點之一。其中，TPP中各國更進一步地處理「當地設立伺服器」議題，並提案將以「必要性測試」作為各國施行該措施之前提，本文遂就該測試在相關措施下之運作進行探討，並針對我國未來制度上與國際接軌之方向提出建議。 本文透過文獻分析法，歸納出必要性測試的評估過程中有「替代性措施對政策目標之貢獻程度」、「政策目標或價值之重要性」、「對國際貿易之限制性」幾個重要因素，另外在針對澳洲措施的分析中，有司法管轄權、技術、國際間合作狀況與行政成本，需納入考量之因素。然而，我國法制中尚未有更具體的管制措施，而經貿協議中僅止於承認彼此之資訊流通管制規範。未來或可參考澳洲之做法，同時由前歸納之因素評估該作法之必要性。The issue of trans-border data flow has been treated as one of those significant trade liberalization topics while global electronic commerce continues to surge and countries are striving to build common ground on the balance between data flow as well as data protection. Among these efforts of trade integration, “necessity test” was proposed when the members within TPP go further to negotiate whether the regulation of “localization data center” should be banned or not. In this article, we will conduct analysis toward how will the test work with potentially disputing measures and provide suggestions for Taiwan’s legislation to be geared to international treaties and standards. Through documentary analysis, factors evaluated against possible alternative measures when exercising necessity tests are summed up as contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports. Furthermore, as what has been shown by analyzing the Australian measure, we concluded that jurisdiction, techniques, international cooperation and administrative costs should also be taken into account. However, due to the lack of more practical measures and the topic in Taiwan’s concluded trade agreements is still in its infancy, I suggested that related authority can take the Australia’s measure as an example on basis of the above-mentioned factors