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Trade Law in a Data-Driven Economy: The Need for Modesty and Resilience

Published online by Cambridge University Press:  14 April 2021

Gregory Shaffer*
Affiliation:
University of California, Irvine School of Law, USA

Abstract

This article examines the social challenges posed by the data-driven economy, their implications for international trade law, the current trade negotiating context involving distinct models advanced by the United States, European Union, and China, and a way forward that can both enhance trade and regulatory efficacy. It examines seven interrelated risks. They are the rise of ‘winner-take-all’ companies; social control through public and private surveillance; social polarization; premature deindustrialization; national security threats; cybersecurity risks; and threats to personal privacy. In response to these risks, the article contends that trade agreements should be deferential to national regulation, while supporting mechanisms for regulatory learning and adaptation. In this spirit, the article advances a governance framework that goes beyond ‘liberalization' and that foregrounds the importance of building resilience and engaging in regulatory problem solving.

Type
Original Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

1

Chancellor's Professor, University of California, Irvine School of Law. This article is adapted from a keynote presentation at a conference organized by the Asian International Economic Law Network (AIELN) in Taipei, entitled ‘International Trade Regime for the Data-Driven Economy: How Will Artificial Intelligence Transform International Economic Law’. I thank Anne van Aaken, Mira Burri, Jacob Cogan, Monica Hakimi, Alex Huneeus, Christopher Leslie, participants at a workshop at the University of California, Irvine, participants at the AIELN conference, two anonymous reviewers, and Mona Pinchis-Paulsen (as WTR editor) for their comments and suggestions.

References

2 The legal construct of property rights in data is subject to considerable debate. Compare Cohen, J. (2018) ‘The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy’, Philosophy & Technology 31: 213–214CrossRefGoogle Scholar (noting how personal data is ‘reconceived as a resource that is unowned but potentially appropriable’ and then protected); Pistor, K. (2019) The Code of Capital: How the Law Creates Wealth and Inequality. Oxford, UK: Princeton University Press, 126131Google Scholar (on the use of trade secrecy doctrine and patents in relation to big data); Pistor, K. (2020) ‘Rule by Data: The End of Markets?’, Law and Contemporary Problems 83(2): 101, 120Google Scholar (proposing ‘treating data producers as co-owners of the database’ in a prorated fashion); Zuboff, S. (2019) The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York, NY: PublicAffairsGoogle Scholar; and Weinar, L. (2016) Blood Oil: Tyrants, Violence, and the Rules that Run the World. Oxford, UK: Oxford University PressGoogle Scholar (critiquing the role of property law in legitimizing theft by corrupt leaders of a people's natural resources, such as oil). To give some examples, should data that is generated by user interaction with a product (say a rented driverless vehicle) be owned by the user, the producer (of the vehicle), or a third-party service provider (such as the rental company, the provider of GPS services, or the provider of insurance). Should individuals retain ownership rights in their data? Should data be socialized so that large companies are forced to share data with competitors to combat monopolization? Should oligopolistic companies holding data be regulated like utilities? Should governments create state-owned enterprises to profit from citizens’ data that the government holds? Or, alternatively, should there be bans on the collection and use of some data so that data does not become property at all?

3 Seven of the eight most valuable listed firms in 2019 profit critically from data: Microsoft, Apple, Amazon, Alphabet (parent of Google), Facebook, Alibaba, and Tencent (parent of WeChat). The eighth is Berkshire Hathaway, a holding company whose largest holding is Apple. We pay for the ‘free’ services of Google, Facebook, Alibaba, and WeChat by exchanging access to us and our data. WeChat, owned by Tencent, is the largest social network in China. Facebook envies it in terms of the range of services that WeChat (the ‘everything app’) offers. N. Statt and S. Liao (2019) ‘Facebook Wants to be WeChat’, The Verge, 8 March 2019, www.theverge.com/2019/3/8/18256226/facebook-wechat-messaging-zuckerberg-strategy (accessed 14 January 2021).

4 OECD (2013) ‘Exploring Data-Driven Innovation as a New Source of Growth: Mapping the Policy Issues Raised by “Big Data”’, OECD Digital Economy Paper No. 222, www.oecd-ilibrary.org/science-and-technology/exploring-data-driven-innovation-as-a-new-source-of-growth_5k47zw3fcp43-en (noting data products, data-intensive products, data-driven R&D, data-driven processes, data-driven marketing, and data-driven organization across sectors); Kusiak, A.. (2018) ‘Smart Manufacturing’, International Journal of Production Research 56(1–2), 508517CrossRefGoogle Scholar, at 508 (‘Smart manufacturing is an emerging form of production integrating manufacturing assets of today and tomorrow with sensors, computing platforms, communication technology, control, simulation, data intensive modelling and predictive engineering’); Wolfert, S. et al. (2017) ‘Big Data in Smart Farming – A Review’, Agricultural Systems 153, 6980CrossRefGoogle Scholar, at 69 (‘New technologies such as the Internet of Things and Cloud Computing are expected to leverage this development and introduce more robots and artificial intelligence in farming. This is encompassed by the phenomenon of Big Data, massive volumes of data with a wide variety that can be captured, analysed and used for decision-making’). For different definitions of digital trade that vary in their expansiveness, see J. Meltzer (2019) ‘Governing Digital Trade’, World Trade Review 18(S1), S23–S48, S33 (including those of the WTO Work Program on Electronic Commerce and the US International Trade Commission). Ciuriak and Ptashkina break down digital trade into five modes. D. Ciuriak and M. Ptashkina (2018) ‘The Digital Transformation and the Transformation of International Trade’, International Center for Trade and Sustainable Development Issue Paper, Geneva.

5 D. Ciuriak (2018) ‘The Economics of Data: Implications for the Data-Driven Economy’, Center for International Governance Intervention, Data Governance in the Digital Age Essay Series, 14–19, at 14.

6 J. Manyika et al. (2015) ‘The Internet of Things: Mapping the Value beyond the Hype’, McKinsey Global Institute; J. Manyika and M. Chui (2015) ‘By 2025, Internet of Things Applications Could Have US 11 Trillion Impact’, Fortune, 22 July 2015, https://fortune.com/2015/07/22/mckinsey-internet-of-things/ (accessed 15 January 2021).

7 Contemporary economists sometimes distinguish human capital (consisting of skills and education) from labor, as well as entrepreneurship and/or technology.

8 D. Ciuriak (2018) ‘Digital Trade: Is Data Treaty-Ready’, CIGI Papers No. 162, Center for International Governance Innovation, Waterloo, ON, www.cigionline.org/sites/default/files/documents/Paper%20no.162web.pdf. AI can reduce transport, storage, and logistics costs by optimizing production and route planning and reducing uncertainty of delivery times. It can facilitate localized manufacturing through 3D printing. These costs represent a major share in overall trade costs, and, therefore, their reduction can have a large impact on trade flows. World Trade Organization, ‘World Trade Report 2018: The Future of World Trade: How Digital Technologies Are Transforming Global Commerce’ (3 October 2018), 8, wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf (accessed 15 January 2021).

9 D. Henke et al. (2016) ‘The Age of Analytics: Competing in a Data-Driven World’, McKinsey Global Institute. The characteristics of data-driven smart manufacturing include: (i) the enabling of ‘customer-centric product development by exploiting user data’; (ii) the enabling of smart production planning by exploiting task data; (iii) the enabling of precise control by exploiting data from the manufacturing process; (iv) the enabling of manufacturing process monitoring through exploiting real-time data; and (v) the enabling of proactive maintenance and quality control by exploiting historical and real-time data. Fei Tao et al. (2018) ‘Data-Driven Smart Manufacturing’, Journal of Manufacturing Systems 48(C), 157–169, at 161.

10 The Internet of Things equips everyday objects, such as thermostats, refrigerators, and coffee machines, with identifying, sensing, networking, and processing capabilities that allow them to communicate with other devices via the internet to achieve their objectives. World Trade Organization, ‘World Trade Report 2018: The Future of World Trade: How Digital Technologies Are Transforming Global Commerce’ (3 October 2018), 7, wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf (accessed 15 January 2021).

11 A. Korinek and J. Stiglitz (2017) ‘Artificial Intelligence and Its Implications for Income Distribution and Unemployment’, NBER Working Paper No. w24174, National Bureau of Economic Research, Cambridge, MA, 21, www.nber.org/papers/w24174.

12 In the parable, an entrepreneur declares that he has found a way to transform wheat into cars, thereby significantly lowering the cost of production, decreasing the cost of cars for consumers, and thus increasing standards of living. A competitor, however, discovers that the purported production facilities are in fact empty and that the lower cost production comes from trading domestic-produced wheat for foreign-produced cars, leading to a public outcry. Pauwelyn, J., Guzman, A., and Hillman, J. (2016) International Trade Law. New York, NY: Wolters Kluwer, 1213Google Scholar; and Ingram, J. (1983) International Economics. Hoboken, NJ: Wiley & Sons, IncGoogle Scholar.

13 D. Rodrik (2011) The Globalization Paradox: Democracy and the Future of Trade Law. New York, NY: W.W. Norton, 59–60.

14 R. Gilson (1998) ‘Lawyers as Transaction Cost Engineers’, The New Palgrave Dictionary of Economics and the Law. New York, NY: Stockton Press, 508–514, 509. Compare K. Pistor (2019) The Code of Capital: How the Law Creates Wealth and Inequality. Princeton, NJ: Princeton University Press, 158–182 (lawyers as ‘The Masters of the Code’, servicing capital's needs); and Chander, A. (2014) ‘How Law Made Silicon Valley’, Emory Law Journal 63(3), 639694Google Scholar.

15 Compare W. Hurst (1956) ‘The Release of Energy’, Law and the Conditions of Freedom in the 19th Century United States. Madison, WI: University of Wisconsin Press, 3.

16 D. Barton et al. (2017) ‘Artificial Intelligence: Implications for China’, McKinsey Global Institute, 7; D. Ciuriak (2017) ‘The Knowledge-based and Data-driven Economy: Quantifying the Impacts of Trade Agreements’, CIGI Paper Series, Paper No. 156, Center for International Governance Innovation, Waterloo, ON, 5, www.cigionline.org/publications/knowledge-based-and-data-driven-economy-quantifying-impacts-trade-agreements.

17 D. Ciuriak (2018) ‘Digital Trade: Is Data Treaty-Ready’, CIGI Papers No. 162, Center for International Governance Innovation, Waterloo, ON, www.cigionline.org/sites/default/files/documents/Paper%20no.162web.pdf.

18 L. Fuller (1941) ‘Consideration and Form’, Columbia Law Review 41(5), 799–824, 801 (on legal form's ‘channeling function’); K. Llewellyn (1940) ‘The Normative, the Legal, and the Law Jobs: The Problem of Juristic Method’, Yale Law Journal 49(8), 1355–1400, at 1376–1383 (‘The function includes, to repeat, not only the channeling of overt behavior but the channeling of expectations, norms and claims’); H. Hart (1961) The Concept of Law. Oxford, UK: Oxford University Press (law as ‘facilitative’); S. Shapiro (2013) Legality. Cambridge, MA: Harvard University Press (law as ‘planning’, or plan-like norms, that help guide and coordinate action).

19 A. Chander and U. Lê (2015) ‘Data Nationalism’, Emory Law Journal 64(3), 677–739, at 679.

20 G. Hufbauer and Z. Lu (2018) ‘The European Union's Proposed Digital Services Tax: A De Facto Tariff’, Peterson Institute for International Economics, 2, www.piie.com/publications/policy-briefs/european-unions-proposed-digital-services-tax-de-facto-tariff (accessed 15 January 2021). The imposition of digital taxes has become a new subject of trade disputes. Office of the United States Trade Representative, Initiation of a Section 301 Investigation of France's Digital Services Tax, Docket No. USTR-2019-0009 (16 July 2019); P. Glicklich and H. Martin (2019) ‘Not Whether but When and How: US Response to Unilateral Digital Taxation’, Bloomberg Law, 30 October 2019, www.cambridge.org/core/journals/world-trade-review/information/instructions-contributors.

21 World Trade Organization, ‘World Trade Report 2018: The Future of World Trade: How Digital Technologies Are Transforming Global Commerce’ (3 October 2018), 9, wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf (accessed 15 January 2021). (‘The potential decline in trade costs can disproportionately benefit MSMEs and firms from developing countries’); and at 39, 69 (digitalization ‘leads to a substantial decrease in the cost of entry, making it easier for firms to produce, promote and distribute media products’); J. Meltzer (2019) ‘A WTO Reform Agenda: Data Flows and International Regulatory Cooperation’, Global Economy & Development Working Paper 130, The Brookings Institution, Washington, DC, www.brookings.edu/research/a-wto-reform-agenda/, 4 (‘e-commerce provides a potentially significant opportunity to increase small business participation in international trade’).

22 Ibid. at 9, 11.

23 ‘Additive manufacturing is expected to lead to a shift towards more digital and localized supply chains and lower energy use, resource demands and related CO2 emissions over the product life cycle.’ World Trade Organization, ‘World Trade Report 2018: The Future of World Trade: How Digital Technologies Are Transforming Global Commerce’ (3 October 2018), 32, wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf (accessed 15 January 2021); M. Gebler, A. Uiterkamp, and C. Visser (2014) ‘A Global Sustainability Perspective on 3D Printing Technologies’, Energy Policy 74, 158–167. Additive manufacturing, for example, should reduce wasteful excess production because of its focus on efficiency and just-in-time production. However, maintaining massive amounts of data in the cloud and analyzing them through AI also requires large amounts of energy that may come with significant environmental costs. N. Jones (2018) ‘The Information Factories: Data Centres are Chewing Up Vast Amounts of Energy’, Nature 561, 163–166.

24 R. Baldwin (2019) The Globotics Upheaval: Globalization, Robotics, and the Future of Work 261. Oxford, UK: Oxford University Press. See also V. Mayer-Schonberger and T. Ramge (2018) Reinventing Capitalism in the Age of Big Data. New York, NY: Hachette Book Group, 14 (‘Even rich data markets won't be perfect; but pragmatically, they will be far superior to what we have today’); P. Barwise (2018) ‘Nine Reasons Why Tech Markets Are Winner-Take-All’, Think, 10 July 2018, www.london.edu/think/nine-reasons-why-tech-markets-are-winner-take-all (accessed 15 January 2021).

25 Compare O. Lobel (2016) ‘The Law of the Platform’, Minnesota Law Review 101, 87–166, at 102 (characterizing platform innovation in digital economy as ‘unstoppable’, raising the question of how to regulate it).

26 D. Autor et al. (2017) ‘Concentrating on the Fall of the Labor Share’, American Economic Review 107(5), 180–185, 184. The challenges for labor in the digital economy, such as when workers are treated as ‘independent contractors’ so that they are unable to bargain collectively, are multiple and are not addressed here.

27 D. Ciuriak and M. Ptashkina (2018) ‘The Digital Transformation and the Transformation of International Trade’, International Center for Trade and Sustainable Development Issue Paper, Geneva, 9.

28 Consumer surplus represents the difference between the maximum price a consumer is willing to pay and the actual price they pay based on market prices. There are benefits to precision/demand pricing so as to more accurately value goods and services, and thus increase efficiency in matching supply and demand, but such pricing practices also enable companies to extract rents, especially in oligopolistic markets.

29 World Trade Organization, ‘World Trade Report 2018: The Future of World Trade: How Digital Technologies Are Transforming Global Commerce’, 42, 142 (3 October 2018), wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf (accessed 15 January 2021). In addition, under this market dynamic, it is harder for niche companies to create profitable niches, which reduces the likelihood that some consumers will be served. Winner-take-all companies acquire small companies to foreclose competition and, in the process, reduce consumer choice.

30 K. Strittmatter (2019) We Have Been Harmonised: Life in China's Surveillance State. London, UK: Old Street Publishing; K. Wong and A. Dobson (2019) ‘We're just data: Exploring China's Social Credit System in Relation to Digital Platform Ratings Cultures in Westernised Democracies’, Global Media and China 4(2), 220–232, at 221.

31 ‘Surveillance capitalism unilaterally claims human experience as free raw material for translation into behavioral data … fabricated into “prediction products” that are traded in “behavioral futures markets,” creating incentives “to herd behavior to profitable outcomes.”’ S. Zuboff (2019) The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York, NY: Public Affairs, 8; J. Cohen (2018) ‘The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy’, Philosophy & Technology 31, 213–233, at 231(‘a commercial future in which consumer surplus is extracted “from each according to his abilities,” while goods and services flow “to each according to his [manufactured] needs”’).

32 F. Pasquale (2016) The Black Box Society. Cambridge, MA: Harvard University Press.

33 K. Pistor (2019) The Code of Capital: How the Law Creates Wealth and Inequality. Princeton, NJ: Princeton University Press, 129–131.

34 F. Pasquale (2019) ‘The Second Wave of Algorithmic Accountability’, Law and Political Economy Project, 25 November 2019, https://lpeproject.org/blog/the-second-wave-of-algorithmic-accountability (accessed 15 January 2021) (contending that some algorithms should be banned).

35 M. McCord (2019) ‘Armed Militias Are Taking Trump's Civil War Tweets Seriously’, Lawfare Blog, 2 October 2019, www.lawfareblog.com/armed-militias-are-taking-trumps-civil-war-tweets-seriously (accessed 15 January 2021). As Diamond also writes, Trump suggested that if his democratically nominated rival, Hillary Clinton, won, the only way to stop her from picking liberal, pro-gun-control judges would lie with ‘the Second Amendment people’– a clear reference to gun violence and assassination’. L. Diamond (2019) Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency. New York, NY: Penguin Press, 78–79.

36 P. Goodman (2019) ‘Inequality Fuels Rage of “Yellow Vests” in Equality-Obsessed France’, New York Times, 15 April 2019, www.nytimes.com/2019/04/15/business/yellow-vests-movement-inequality.html (accessed 15 January 2021).

37 L. Diamond (2019) Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency. New York, NY: Penguin Press, 78–79; R. Hasen (2020) Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy. New Haven, CT: Yale University Press; D. Kaye (2019) Speech Police: The Global Struggle to Govern the Internet. New York, NY: Columbia Global Reports.

38 J. Bartlett (2018) The People vs Tech: How the Internet is Killing Democracy. New York, NY: Dutton, 1 (‘In the coming years either tech will destroy democracy and the social order as we know it, or politics will stamp its authority over the digital world’).

39 V. Buterin and J. Lanier (2018) ‘Forward’, in E. Posner and E. Weyl, Radical Markets: Uprooting Capitalism and Democracy for a Just Society. Princeton, NJ: Princeton University Press, xxv.

40 C. Silverman and L. Alexander (2016) ‘How Teens in the Balkans are Duping Trump Supporters with Fake News’, BuzzFeed News, 3 November 2016, www.buzzfeednews.com/article/craigsilverman/how-macedonia-became-a-global-hub-for-pro-trump-misinfo; A. Higgins, M. McIntire, and G. Dance (2016) ‘Inside a Fake News Sausage Factory: “This is All About Income”’, New York Times, 25 November 2016, www.nytimes.com/2016/11/25/world/europe/fake-news-donald-trump-hillary-clinton-georgia.html; N. Pelroth (2019) ‘A Former Fox News Executive Divides Americans Using Russian Tactics’, New York Times, 21 November 2019, www.nytimes.com/2019/11/21/technology/LaCorte-edition-news.html.

41 L. Diamond (2019) Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency. New York, NY: Penguin Press.

42 World Trade Organization, ‘World Trade Report 2018: The Future of World Trade: How Digital Technologies Are Transforming Global Commerce’ (3 October 2018), wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf (accessed 15 January 2021).

43 Deindustrialization is ‘premature’ because developing countries lose the benefits of manufacturing jobs before ‘catching up’ to the wealth and prosperity of ‘post-industrialized’ nations. D. Rodrik (2015) ‘Premature Deindustrialization’, NBER Working Paper No. w20935, National Bureau of Economic Research, Cambridge, MA, 3, www.nber.org/papers/w20935.

44 R. Blackwill and J. Harris (2016) War by Other Means: Geoeconomics and Statecraft. Cambridge, MA: Harvard University Press (geoeconomics as the ‘use of economic instruments to promote and defend national interests, and to produce beneficial geopolitical results’); A. Roberts, H. Moraes, and V. Ferguson (2019) ‘Toward a Geoeconomic World Order in International Trade and Investment’, Journal of International Economic Law 22(4), 655–676 (using the term ‘to describe a macro level change in the relationship between economics and security in the regime governing international trade and investment’).

45 H. Farrell and A. Newman (2019) ‘Weaponized Interdependence: How Global Economic Networks Shape State Coercion’, International Security 44(1), 42–79.

46 ‘Hegemonic stability theory’ posits that the international system will be more stable if one country is a dominant power or hegemon, as was the United States following the end of the Cold War. R. Gilpin (2001) Global Political Economy: Understanding the International Economic Order. Princeton, NJ: Princeton University Press.

47 G. Allison (2015) ‘The Thucydides Trap’, The Atlantic, 24 September 2015, www.theatlantic.com/international/archive/2015/09/united-states-china-war-thucydides-trap/406756/.

48 Engineers refer to three types of risks known as CIA: confidentiality, integrity, and availability. Confidentiality refers to data privacy and security (i.e., unauthorized information release). Integrity refers to the ability of a third party to enter and compromise a program or device, such as a self-driven vehicle, a heart monitor, the electrical grid, or a nuclear power reactor (i.e., unauthorized information modification). Availability refers to the ability to shut down a device or system (i.e., unauthorized denial of use). These three risks are connected and thus referenced in terms of a triangle. For example, a breach of a system's integrity can compromise confidentiality as well as availability. AI, for example, can be very brittle, subject to compromise of its integrity so that a minor tweak can lead to serious malfunction, potentially leading to dire consequences. The CIA triad is codified in the United States Code in 44 USC, §3552 (Definitions). Y. Cherdantseva and J. Hilton (2013) ‘A Reference Model of Information Assurance Security’, International Conference on Availability, Reliability and Security , 546–555 (providing a history of the triad); N. Kobie ‘To Cripple AI, Hackers Are Turning Data Against Itself’, Wired UK, 11 September 2018), www.wired.co.uk/article/artificial-intelligence-hacking-machine-learning-adversarial (accessed 15 January 2021).

49 Margaret Atwood's brilliant MaddAddam trilogy consists of Oryx and Crake (2003), The Year of the Flood (2009), and MaddAddam (2013).

50 R. Bhamra, K. Burnard, and S. Dani (2011) ‘Resilience: The Concept, a Literature Review and Future Directions’, International Journal of Production Research 49(18), 5375–5393, at 5386, 5393 (noting ‘the conceptual linkages between vulnerability, resilience and adaptive capacity’); Y. Sheff (2005) ‘Building a Resilient Supply Chain’, Harvard Business Review Supply Chain Strategy, October 2005, https://hbr.org/2007/08/building-a-resilient-supply-ch%20May%2011; J. Diamond (2011) Collapse: How Societies Choose to Fail or Succeed. New York, NY: Penguin Books.

51 See e.g. B. Schneier (2015) Data and Goliath: The Hidden Battles to Collect Your Data and Your World. New York, NY: W.W. Norton & Company; D. Solove and P. Schwartz (2017) Information Privacy Law. New York, NY: Wolters Kluwer; C. Kuner (2013) Transborder Data Flows and Data Privacy Law. Oxford, UK: Oxford University Press.

52 In this vein, Europe (as well as others) has recognized a ‘right to be forgotten’ in recognition of individual privacy and dignity. Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González [2014] 2013 E.C.R. 424. Compare D. Citron (2016) Hate Crimes in Cyberspace. Cambridge, MA: Harvard University Press.

53 At the WTO ministerial meeting in Buenos Aires in 2018, a group of members issued a Joint Statement on Electronic Commerce to commence negotiations. WTO, Joint Statement on Electronic Commerce, WT/L/1056 (25 January 2019).

54 J. Meltzer (2019) ‘A WTO Reform Agenda: Data flows and International Regulatory Cooperation’, Global Economy & Development Working Paper 130, The Brookings Institution, Washington, DC, www.brookings.edu/research/a-wto-reform-agenda/; A. Mitchell and N. Mishra (2018) ‘Data at the Docks: Modernizing International Trade Law for the Digital Economy’, Vanderbilt Journal of Entertainment & Technology Law 20(4), 1073–1134; M. Burri (2017) ‘The Regulation of Data Flows through Trade Agreements’, Georgetown Journal of International Law 48(1), 407–448.

55 B. Kingsbury (2019) ‘Infrastructure and InfraReg: On Rousing the International Law “Wizards of Is”’, Cambridge University Law Journal 8(2), 171–186, at 184.

56 The WTO included a more detailed agreement governing product regulation, the Agreement on Technical Barriers to Trade, but it was drafted before the rise of the data-driven economy and does not address data regulation.

57 P. Buckley and R. Majmudar ‘The Services Powerhouse: Increasingly Vital to World Economic Growth’, Deloitte, 12 July 2018, www2.deloitte.com/us/en/insights/economy/issues-by-the-numbers/trade-in-services-economy-growth.html; S. Lund et al. (2019) ‘Globalization in Transition: The Future of Trade and Value Chains’, McKinsey Global Institute, 109.

58 Mitchell and Mishra, for example, note the limitations of the GATS classification system, and the fact that the main restrictions on internet-based services are regulatory. A. Mitchell and N. Mishra (2018) ‘Data at the Docks: Modernizing International Trade Law for the Digital Economy’, Vanderbilt Journal of Entertainment & Technology Law 20(4), 1073–1134.

59 J. Manyika et al. (2015) ‘The Internet of Things: Mapping the Value Beyond the Hype’, McKinsey Global Institute.

60 Ciuriak and Ptashkina present an excellent table comparing US, EU, and Chinese approaches across issue areas based on the TPP, the EU–Canada Comprehensive Economic and Trade Agreement (CETA), and the China–Australia Free Trade Agreement. D. Ciuriak and M. Ptashkina (2018) ‘The Digital Transformation and the Transformation of International Trade’, Table A1 in Annex 2, International Center for Trade and Sustainable Development Issue Paper, Geneva.

61 The United States is home to the top ten internet brands, seven out of the ten internet companies with the largest market value worldwide, and four US companies provide more than half of the world's cloud computing capacity. S. Aaronson and P. Leblond (2018) ‘Another Digital Divide: The Rise of Data Realms and Its Implications for the WTO’, Journal of International Economic Law 21(2), 245–272, at 253.

62 Agreement between the United States of America, the United Mexican States, and Canada (USMCA), Chapter 19, 10 December 2019 (entered into force 1 July 2020).

63 Ibid., art. 19.17; and Communications Decency Act of 1996 § 230, 47 USC. § 230.

64 Court of Justice of the European Union Press Release 91/20, The Court of Justice Invalidates Decision 2016/1250 on the Adequacy of the Protection Provided by the EU–US Data Protection Shield (16 July 2020); Case C-311/18, Data Protection Commissioner v. Facebook Ireland Ltd. [2020] ECLI:EU:C:2020:559.

65 There are no European firms among the top 15 digital firms by market value, and US firms control some 54% of the EU's digital market. S. Aaronson and P. Leblond (2018) ‘Another Digital Divide: The Rise of Data Realms and its Implications for the WTO’, Journal of International Economic Law 21(2), 245–272, at 258.

66 A. Mitchell and N. Mishra (2018) ‘Data at the Docks: Modernizing International Trade Law for the Digital Economy’, Vanderbilt Journal of Entertainment & Technology Law 20(4), 1073–1134. While the United States and European Union have been exporting their approach through free trade agreements (FTAs), Chinese FTAs do not contain binding rules on data flows or language to limit digital protectionism. Rather, China has encouraged e-commerce, a sector where it is very competitive with firms like Alibaba and JD.com. For example, China included provisions for facilitating cross-border e-commerce in its updated FTA with Chile. S. Aaronson and P. Leblond (2018) ‘Another Digital Divide: The Rise of Data Realms and Its Implications for the WTO’, Journal of International Economic Law 21(2), 245–272, 268. China is the world's largest digital market, accounts for more than 40% of e-commerce transactions, and by 2021, more than half its economy will be digital. Ibid., at 262.

67 See ‘Fact Sheet on US–Japan Trade Agreement’, Office of the United States Trade Representative (2019), https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2019/september/fact-sheet-us-japan-trade-agreement (accessed 4 November 2019).

68 A. Mitchell and N. Mishra (2018) ‘Data at the Docks: Modernizing International Trade Law for the Digital Economy’, Vanderbilt Journal of Entertainment & Technology Law 20(4), 1073–1134, at 1084–1087.

69 ‘US criticises India's data localisation norms, draft e-commerce policy’, The Economic Times, 9 April 2019, https://economictimes.indiatimes.com/news/economy/foreign-trade/us-criticises-indias-data-localisation-norms-draft-e-commerce-policy/articleshow/68794927.cms?from=mdr.

70 On the importance of ‘framing’ a problem for transnational legal ordering, see T. Halliday and G. Shaffer (eds) (2015) Transnational Legal Orders. New York, NY: Cambridge University Press.

71 T. Halliday and G. Shaffer (eds) (2015) Transnational Legal Orders. New York, NY: Cambridge University Press.

72 C. Sabel and J. Zeitlin (2010) ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’, Experimentalist Governance in the European Union: Toward a New Architecture. Oxford, UK: Oxford University Press, 1–28 (theorizing, describing, and giving examples of new governance mechanisms in the EU); G. de Burca and J. Scott (2006) Law and New Governance in the EU and the US 2. Portland, OR: Hart Publishing; V. Nourse and G. Shaffer (2014) ‘Empiricism, Experimentalism, and Conditional Theory’, Southern Methodist University Law Review 67(1), 141–184.

73 The OECD breaks down the full range of options into eleven approaches that include these regulatory options. See Organization for Economic Cooperation and Development, ‘International Regulatory Cooperation: Rules for a Global World’, GOV/RPC(2012)8/REV1 (2012), www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=GOV/RPC(2012)8/REV1&docLanguage=En; J. Wiener and A. Alemanno (2016) ‘The Future of International Regulatory Cooperation: TTIP as a Learning Process toward a Global Policy Laboratory’, Law and Contemporary Problems 78, 103–136.

74 C. Sabel and W. Simon (2011) ‘Minimalism and Experimentalism in the Administrative State’, The Georgetown Law Journal 100, 53–93, at 55; V. Nourse and G. Shaffer (2014) ‘Empiricism, Experimentalism, and Conditional Theory’, Southern Methodist University Law Review 67(1), 141–184.

75 See C. Sabel and W. Simon (2012) ‘Contextualizing Regimes: Instituitonalization as a Response to the Limits of Interpretation and Policy Engineering’, Michigan Law Review 110(7), 1265–1308.

76 C. Sabel and B. Hoekman (2019) ‘Open Plurilateral Agreements, International Regulatory Cooperation and the WTO’, Global Policy 10(3), 297–312. See also B. Hoekman and C. Sabel (2019) ‘In a World of Value Chains: What Space for Regulatory Coherence and Cooperation in Trade Agreements’, in B. Kingsbury et al., Megaregulation Contested: Global Economic Ordering After TPP. Oxford Scholarship Online, 217–239, https://oxford.universitypressscholarship.com/view/10.1093/oso/9780198825296.001.0001/oso-9780198825296.

78 G. Shaffer (2016) ‘Alternatives for Regulatory Governance under TTIP: Building from the Past’, Columbia Journal of European Law 22(3), 403–419.

79 Hoekman, for example, recommended the creation of ‘knowledge platforms’ that bring together ‘academics, regulators, government agencies, and NGOs’. B. Hoekman (2015) ‘Fostering Transatlantic Regulatory Cooperation and Gradual Multilateralization’, Journal of International Economic Law 18(3), 609–624, at 615. He similarly notes the potential role for supply chain councils that would identify regulatory policies that generate unnecessary costs in light of regulatory objectives. Ibid., at 618

80 C. Sabel and B. Hoekman (2019) ‘Open Plurilateral Agreements, International Regulatory Cooperation and the WTO’, Global Policy 10(3), 297–312.

81 G. Shaffer and M. Pollack (2010) ‘Hard vs Soft Law: Alternatives, Complements and Antagonists in International Governance’, Minnesota Law Review 94, 706–799.

82 The Trade Facilitation Agreement was concluded at the WTO Ministerial Conference in Bali in December 2013, but it did not enter into force until 22 February 2017. A. Eliason (2015) ‘The Trade Facilitation Agreement: A New Hope for the World Trade Organization’, World Trade Review 14(4), 643–670, at 644.

83 This also could be addressed through a ‘reference paper on digital trade’, which is attached to a WTO members’ schedule of commitments under the GATS, where there is a basic text that provides for variation in members’ commitments, analogous to the Trade Facilitation Agreement. M. Burri (2021) ‘Towards a Treaty on Digital Trade’, Journal of World Trade 55(1).

84 R. Wolfe (2019) ‘Learning about Digital Trade: Privacy and E-Commerce in CETA and TPP’, World Trade Review 18(S1), S63–S84.

85 L. Lianos et al. (2019) ‘The Global Governance of Online Consumer Protection and E-Commerce, Building Trust’, World Economic Forum, www.weforum.org/whitepapers/the-global-governance-of-online-consumer-protection-and-e-commerce (accessed 15 January 2021).

86 Comprehensive Economic and Trade Agreement, Article 16.4. Parts of CETA went into provisional effect in September 2017, pending ratification.

87 A trade agreement could incorporate by reference rules on digital taxes developed elsewhere, such as the OECD or G20.

88 For many digital services, it is unclear how they should be classified under the GATS. M. Burri (2017) ‘The Regulation of Data Flows through Trade Agreements’, Georgetown Journal of International Law 48(1), 407–448, at 413–414.

89 UN Conference on Trade and Development, Rising Product Digitilisation and Losing Trade Competitiveness, 15–18, Doc No. UNCTAD/GDS/ECIDC/2017/3 (2017). As for revenue, however, they still could apply non-discriminatory sales and value-added taxes on such transmissions.

90 Compare the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), art. 14.17; United States–Mexico–Canada Agreement (USMCA), art. 19.16; US–Japan Trade Agreement. On the range of data localization policies that vary in their strictness, see S. Sacks and J. Sherman (2019) ‘Global Data Governance’, New America, 16 December 2019), 8, https://d1y8sb8igg2f8e.cloudfront.net/documents/Global_Data_Governance_final_eyG7dLY.pdf.

91 Regional Comprehensive Economic Partnership, art. 12.14 (Location of Computing Facilities) and art. 12.15 (Cross-border transfer of Information by Electronic Means).

92 C. Sabel and B. Hoekman (2019) ‘Open Plurilateral Agreements, International Regulatory Cooperation and the WTO’, Global Policy 10(3), 297–312.

93 A. Lang and J. Scott (2009) ‘The Hidden World of WTO Governance’, European Journal of International Law 20(3), 575–614, at 589.

94 ‘EU Coordinated Risk Assessment of the Cybersecurity of 5G Networks Report’, NIS Cooperation Group (8 October 2019), www.europeansources.info/record/eu-coordinated-risk-assessment-of-the-cybersecurity-of-5g-networks/; ‘Overview of Risks Introduced by 5G Adoption in the United States’, Cybersecurity and Infrastructure Security Agency (31 July 2019), www.cisa.gov/sites/default/files/publications/19_0731_cisa_5th-generation-mobile-networks-overview_0.pdf; J. Kleinhans (2019) ‘Whom to Trust in a 5G world?: Policy Recommendations for Europe's 5G challenge’, Stiftung Neue Verantwortung, 5 December 2019, www.stiftung-nv.de/de/publikation/whom-trust-5g-world-policy-recommendations-europes-5g-challenge.

95 For an excellent article on alternative institutional arrangements to address national security issues, B. Heath (2020) ‘The New National Security Challenge to the Economic Order’, Yale Law Journal 129(4), 1020–1098.

96 Some might argue that article XXI(b)(ii) could be interpreted to apply to cybersecurity issues. It permits invocation of the security exception ‘relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment’. The problem is that cybersecurity extends beyond supplies to ‘a military establishment’.

97 Regional Comprehensive Economic Partnership, article 17.13. The new United States–Mexico–Canada Agreement goes further in constraining judicial review, providing that ‘nothing in this Agreement shall be construed to … preclude a Party from applying measures that it considers necessary for … the protection of its own essential security interests’. USMCA, article 32.2. As a result, invocation of ‘essential security interests’ is no longer limited to an enumerated list of matters under the USMCA, unlike under GATT Article XXI.

98 D. Ciuriak (2018) ‘The Economics of Data: Implications for the Data-Driven Economy’, Center for International Governance Intervention, Data Governance in the Digital Age Essay Series 14–19, 7.

99 ‘National Security Strategy of the United States of America’ (December 2017), 17, www.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf (citing Donald Trump, ‘Economic security is national security’ as epigraph).

100 G. Shaffer (2019) ‘A Tragedy in the Making? The Decline of Law and the Return of Power in International Trade Relations’, Yale Journal of International Law Online 44, 1–17.

101 G. Shaffer and J. Trachtman (2011) ‘Interpretation and Institutional Choice at the WTO’, Virginia Journal of International Law 52(1), 103–154 (noting the value of this institutional alternative). For example, the WTO Agreement on Sanitary and Phytosanitary Measures requires that trade measures be based on a risk assessment, which process is subject to WTO review. As the Appellate Body stated regarding review of the EU's risk assessment on hormone-treated beef, ‘the review power of a panel is not to determine whether the risk assessment undertaken by a WTO Member is correct, but rather to determine whether that risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable’. Appellate Body Report, United States – Continued Suspension of Obligations in the EC–Hormones Dispute, WT/DS320/AB/R (16 October 2008), para. 590.

102 B. Heath ‘The New National Security Challenge to the Economic Order’, Yale Law Journal 129(4), 1020–1098 (providing an overview of alternative institutional mechanisms); S. Lester and I. Manak (2020) ‘A Proposal for Committee on National Security at the WTO’, Duke Journal of Comparative and International Law 30, 267–281.

103 For example, the US government is concerned about Chinese companies transmitting data on US consumers back to China. J. Nicas, M. Isaac, and A. Swanson (2019) ‘TikTok Said to Be under National Security Review’, New York Times, 1 November 2019, www.nytimes.com/2019/11/01/technology/tiktok-national-security-review.html (noting ‘evidence of the app sending data to China’). At the WTO, the United States has proposed three categories of exceptions relating to the Joint Statement Initiative on e-commerce: a general exception (which would include public morals and thus privacy); a national security exception; and a prudential/monetary exception. H. Monicken (2019) ‘China's E-Commerce Proposal Includes Privacy Protections, Lacks Data Flow’, Inside US Trade, 10 May 2019, https://insidetrade.com/daily-news/china%E2%80%99s-e-commerce-proposal-includes-privacy-protections-lacks-data-flow.

104 Court of Justice of the European Union Press Release 91/20, The Court of Justice Invalidates Decision 2016/1250 on the Adequacy of the Protection Provided by the EU–US Data Protection Shield (16 July 2020); Case C-311/18, Data Protection Commissioner v. Facebook Ireland Ltd. [2020] ECLI:EU:C:2020:559.

105 G. Shaffer and D. Bodansky (2012) ‘Transnationalism, Unilateralism and International Law’, Transnational Environmental Law 1(1), 31–41. For example, the European Court of Justice ruled in favor of Google that French rules on the ‘right to be forgotten’ could not be applied to internet searches conducted outside of the European Union. ‘Right to be forgotten’ on Google only applies in the EU, court rules’, The Guardian, 24 September 2019.

106 L. Rocher, J. Hendrickx, and Y. Montjoye (2019) ‘Estimating the Success of Reidentifications in Incomplete Datasets using Generative Models’, Nature Communications 10(3069), 1–9, https://doi.org/10.1038/s41467-019-10933-3 (accessed 15 January 2021) (finding ‘that 99.98% of Americans would be correctly re-identified in any dataset using 15 demographic attributes’); F. Zufall and R. Zingg (2019) ‘Data Portability in a Data-Driven World’ (October 2019 conference paper, on file with author).

107 D. Kaye, former UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, stresses this point regarding the regulation of speech in his book Speech Police. D. Kaye (2019) Speech Police: The Global Struggle to Govern the Internet. New York, NY: Columbia Global Reports.

108 E. Hannah, J. Scott, and R. Wilkinson (2017) ‘Reforming WTO-Civil Society Engagement’, World Trade Review 16(3), 427–448.

109 R. Anderson et al. (2018) ‘Competition Policy, Trade and the Global Economy: Existing WTO Elements, Commitments in Regional Trade Agreements, Current Challenges and Issues for Reflection’, WTO Staff Working Paper No. ERSD-2018-12, World Trade Organization Economic Research and Statistics Division at 47, www.wto.org/english/res_e/reser_e/ersd201812_e.pdf.

110 T. Philippon (2019) The Great Reversal: How America Gave up on Free Markets. Cambridge, MA: The Belknap Press of Harvard University Press. It is sometimes argued that ‘the nature of competition in digital markets differs from that in traditional markets as it tends to be based first-and-foremost on innovation rather than pricing’, although welfare losses may be high as monopolists become entrenched. R. Anderson et al. (2018) ‘Competition Policy, Trade and the Global Economy: Existing WTO Elements, Commitments In Regional Trade Agreements, Current Challenges and Issues for Reflection’, WTO Staff Working Paper No. ERSD-2018-12, World Trade Organization Economic Research and Statistics Division, www.wto.org/english/res_e/reser_e/ersd201812_e.pdf.

111 Compare Cohen, J. (2018) ‘The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy’, Philosophy & Technology 31, 213233CrossRefGoogle Scholar; K. Pistor (2019) The Code of Capital: How the Law Creates Wealth and Inequality. Princeton, NJ: Princeton University Press, 129–131.

112 World Trade Organization, ‘World Trade Report 2018: The Future of World Trade: How Digital Technologies Are Transforming Global Commerce’ (3 October 2018), 42, wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf (accessed 15 January 2021). Article 20 of the EU's General Data Protection Regulation provides for ‘data portability’ of raw data provided by the data subject, but it likely will have limited impact since the value of data lies in how they have been processed. Regulation 2016/679, of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119/1), 68. Nonetheless, government mandated information sharing will be critical to retain competitive markets. Australia, for example, began consultations on a ‘mandatory information-sharing scheme between international automakers and Australia's independent repair and service sector’ after its national competition authority found that car manufacturers withheld the computerized information from mechanics to favor their dealership networks. N. Toscano (2019) ‘Win for Local Mechanics with Plan to Make World's Car Makers Share High Tech Data’, The Sydney Morning Herald, 12 February 2019, www.smh.com.au/business/companies/win-for-local-mechanics-as-world-s-car-makers-forced-to-share-high-tech-data-20190212-p50x8k.html. See also V. Mayer-Schonberger and T. Ramge (2018) Reinventing Capitalism in the Age of Big Data. New York, NY: Hachette Book Group, 167–169 (calling for ‘progressive data sharing’).

113 Compare J. Tirole (2019) Economics for the Common Good. Princeton, NJ: Princeton University Press (2019) (chapters 14 and 15); ‘What If Large Tech Firms Were Regulated Like Sewage Companies?’, The Economist, 23 September 2017, www.economist.com/business/2017/09/23/what-if-large-tech-firms-were-regulated-like-sewage-companies; P. Swire (2017) ‘Should the Leading Online Tech Companies Be Regulated as Public Utilities?’, Lawfare, 2 August 2017, www.lawfareblog.com/should-leading-online-tech-companies-be-regulated-public-utilities; D. Ghosh (2019) ‘Don't Break Up Facebook – Treat It Like a Utility’, Harvard Business Review, 30 May 2019, https://hbr.org/2019/05/dont-break-up-facebook-treat-it-like-a-utility; G. Sitamaran (2010) ‘Too Big to Prevail: The National Security Case for Breaking Up Big Tech’, Foreign Affairs, March/April 2020, www.foreignaffairs.com/articles/2020-02-10/too-big-prevail; Balkin, J. (2016) ‘Information Fiduciaries and the First Amendment’, UC Davis Law Review 49(4), 1183–1234 (treating online companies as fiduciaries of private information, giving rise to fiduciary obligations of care and loyalty); J. Balkin and J. Zitrain (2018) ‘How to Exercise the Power You Didn't Ask For’, Harvard Business Review, 19 September 2018, https://hbr.org/2018/09/how-to-exercise-the-power-you-didnt-ask-for; and E. Posner and E. Weyl (2018) ‘Data As Labor’, Radical Markets: Uprooting Capitalism and Democracy for a Just Society. Princeton, NJ: Princeton University Press, 205–249 (proposing granting stronger rights in data ‘as labor’ so that individuals can extract greater rent from the use of their data).

114 Zuboff, S. (2019) The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York, NY: Public Affairs, 134138Google Scholar.

115 Gifford, D. and Kudrle, R. (2015) The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy. Chicago, IL: University of Chicago PressCrossRefGoogle Scholar; Sokol, D. (2017) ‘Troubled Waters between US and European Antitrust’, Michigan Law Review 115(6), 955977Google Scholar.

116 ICN, 2019 Annual Conference Press Release (17 May 2019), www.internationalcompetitionnetwork.org/featured/2019-annual-conference-press-release (accessed 15 January 2021) (‘clear focus is on two topics, first, on the digital economy’).

117 For a 2018 WTO research paper on the issues, see R, Anderson et al. (2018) ‘Competition Policy, Trade and the Global Economy: Existing WTO Elements, Commitments in Regional Trade Agreements, Current Challenges and Issues for Reflection’, WTO Staff Working Paper No. ERSD-2018-12, World Trade Organization Economic Research and Statistics Division, www.wto.org/english/res_e/reser_e/ersd201812_e.pdf.

118 Flexicurity policies combine labor market flexibility, lifelong learning, active labor market policy, and social security. Shaffer, G. (2019) ‘Retooling Trade Agreements for Social Inclusion’, University of Illinois Law Review 1, 143Google Scholar, at 23–24.

119 Ibid., at 17.

120 Ibid., at 33–39.

121 Ibid., at 17–22.

122 Agreement between the United States of America, the United Mexican States, and Canada (entered into force on 1 July 2020), chapter 23; G. Shaffer (forthcoming 2021) ‘Governing the Interface of US–China Trade Relations’ (on file with author).

123 Maggi, G. and Rodríguez-Clare, A. (2007) ‘A Political-Economy Theory of Trade Agreements’, American Economic Review 97(4), 13741406CrossRefGoogle Scholar.

124 Polanyi, K. (2001) The Great Transformation: The Political and Economic Origins of Our Time. Boston, MA: Beacon PressGoogle Scholar.

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