Global Data Law
Multinational corporations, governments (and the EU), intergovernmental organizations (IOs), public-private governance arrangements, and under-coordinated transnational legal regimes are all rushing to shape the practice and conceptualization of global data law. How is this shaking out, and with what effects? How are the immense possibilities and immense risks and challenges digitalization poses for economic development being addressed, in particular for developing countries and disadvantaged communities? How are specific digital and legal technologies facilitating and/or impeding transnational data governance? These are the animating questions in this conference exploring what we posit is the emerging field of Global Data Law. This, the second major conference of the Global Data Law project at NYU Law’s Guarini Global Law & Tech initiative, focused on these explicitly transnational dimensions. It followed on from the inaugural conference in November 2018 on Data Law in a Global Digital Economy which addressed legal foundations of global data law (interacting privacy regimes, data contracting, controlled large-data sharing, data property law, scientific research implications of data enclosure, and data business models). Several of those papers will be published in October 2019 in the NYU Law Review.
The panels in this conference successively addressed: International Organizations as Data Hubs and Data Governors, Collective Data Governance, Data Law and Transnational Business, Data Localization, Data Law in India and China, The Value of Data (Ownership), Digital Trade, and Digital Development.
The opening session on Friday began with international organizations, which have adopted widely divergent approaches, and many do not yet have comprehensive data strategies even if they hold large amounts of sensitive or potentially very useful digital data. Some IOs could evolve into important hubs for data sharing and transnational data governance, potentially providing a partial corrective to the asymmetrical concentration of data in platform companies and in specific geographic regions.
Collective data governance is practiced in a rich variety of innovative forms (often as experiments in public-private governance of data) in diverse communities, cities, and regions. These initiatives face challenges from their nesting in wider bodies of governmental and corporate data law and practice which may curb or undercut them (inadvertently or otherwise).
Unicorns through to large multi-national corporations are scaling their digital operations across borders with relative ease, readily supported by storage and computing capacity offered by cloud computing companies. Data flows from a myriad of collection devices into companies, within companies, and between them; and artificial intelligence/machine learning (AI/ML) is developed from such data and applied to it. Lawmakers around the globe are responding with increasing urgency, seeking to create and/or adapt national data protection and privacy regimes, to regulate data flows, and to mediate access to and uses of public and private data. The business practice of global data law both navigates these paths and in some respects helps construct them, often opportunistically but at times also with longer-term visions and reform projects.
The non-alignment of global data flows and data operations with national jurisdictions creates incentives for ‘extraterritorial’ regulation and limitations to data-transfers. “Data localization” laws and policies can equip states with an instrument of jurisdictional control and practical law enforcement, as well as being used as means to protect rights (eg privacy) and data as a national (even strategic) resource. But measures restricting transnational data transfers (as under the EU’s GDPR and in Korea) are being opposed by transnational businesses and US-influenced international trade agreements (such as the Trans-Pacific Partnership, now in force as CPTPP, and the USMCA) include restrictions on states’ freedom to pursue such policies.
Data is becoming a central input factor of the global digital economy at the same time as China and India become increasingly important in that economy. China is already a major force in global data governance – manifest also in initiatives such as the World Internet Conference in Wuzhen or the “Digital Silk Road”. India is moving toward innovative and distinctive laws and policies emphasizing personal data ownership exercised collectively by the government. Investment in domestic digital infrastructure is a priority in most countries, raising major tensions about foreign investment and technological dependence or vulnerability.
The Saturday program addressed cross-cutting fundamentals: the economic value of data and related questions of legal rights and control powers over data; distributional concerns, particularly given the pervasive data generation and control asymmetries between developed and developing countries as well as between major digital economy companies and their smaller counterparts; the emerging ‘digital trade’ regimes and future implications of choices made at this still-early stage of digital economic transformation; the persistence of digital divides and the paths for developing countries and disadvantaged communities of the incipient legal dimensions of digital development.
The organizers thank Rachel Jones for outstanding administrative support. We are grateful to Grace Redman and Lilian Yang for creative design work and to our research assistants Harshita Bhatnagar, Felix Boos, Lauren Bourke, Lucas Cuatrecasas, Nathaniel Eisen, and Gabrielle Pacia for their respective contributions to this project.
All of this work is made possible by the generous support we receive from Frank Guarini in his creation of the Guarini Institute for Global Legal Studies; NYU's Global Institute for Advanced Study; and NYU Law School Dean Trevor Morrison.
Date: Friday and Saturday, 26-27 April 2019
Location: NYU Law, Furman Hall, 245 Sullivan Street, Lester Pollack Colloquium Room (9th Floor)
Organizers: Angelina Fisher, Benedict Kingsbury, Thomas Streinz
Twitter: @GuariniGlobal #globaldatalaw