The Agreement on Investment and Reciprocal Trade (AICR), with regard to the international transfer of personal data, represents a serious setback for the protection of the right to privacy and informational autonomy in Argentina. Under the guise of facilitating trade and cooperation, the agreement allows for the export of personal data to the United States based on a presumption of “adequate protection,” which is unsupported by either legal or factual grounds. This decision is not neutral: it redefines the status of personal data, which ceases to be a dimension of fundamental rights and instead becomes a transferable asset within the framework of economic and security relations.
From a technical standpoint, the agreement contradicts Act 25,326 and the standards developed by the enforcement authority itself, which maintains that the United States does not constitute an adequate jurisdiction for data transfers. Unlike the Argentine model, which recognizes a broad right to control over personal information, the United States lacks comprehensive federal regulation and has a fragmented system, with protections that vary by state and with control mechanisms that are subject to scrutiny. This asymmetry is exacerbated in the judicial sphere: while in Argentina the right to data protection allows for claims based on mere regulatory violations, U.S. case law requires proof of concrete harm, which significantly limits access to justice and weakens the effective protection of data subjects.
The AICR also conflicts with constitutional and treaty principles. The Argentine Supreme Court, in the “Torres Abad” case, reaffirmed that every person has the right to decide on the use and destination of their personal data, which includes controlling its circulation and demanding that the purpose for which it was collected be respected. This standard is complemented by the development of the right to informational self-determination within the inter-American system, which imposes strict conditions on any transfer or processing of data. By enabling transfers without equivalent safeguards and potentially removing disputes from local jurisdiction, the agreement undermines these protections and violates Articles 19 and 43 of Argentina’s Constitution.
Concerns intensify when it comes to surveillance. The agreement must be viewed in conjunction with the expansion of intelligence powers at the local level and with the U.S. legal framework, which allows the government to access data collected by private companies for national security purposes. Comparative experience, particularly in Europe, has clearly rejected such schemes on the grounds that they do not provide sufficient safeguards against mass surveillance. In this context, the transfer of data from Argentina could expose the population to surveillance mechanisms by a foreign state without the safeguards required by international human rights law.
For all these reasons, the AICR is not only legally incompatible with the current regulatory framework, but also constitutes a high-risk political decision. In a context of expanding surveillance capabilities and weakening democratic controls, moving forward with this type of agreement means ceding sovereignty over the public’s personal information and eroding basic safeguards. Congress must ensure that any public policy on data effectively protects people’s rights.
Photo: Gala Abramovich | CELS