Data localization and barriers to cross-border data flows: Toward a multi-track approach

19 December 2017 - A Workshop on Other in Geneva, Switzerland


Proposer's Name: Mr. William Drake
Proposer's Organization: University of Zurich
Co-Proposer's Name: Mr. Richard Samans
Co-Proposer's Organization: World Economic Forum
Ms. Fiona Alexander, government, Government of the United States of America Mr. Vint Cerf, private sector, Google Mr. William J. Drake, civil society, University of Zurich Ms. Anriette Esterhuysen, civil society, Association for Progressive Communication Mr. Ricardo Meléndez-Ortiz, civil society, International Centre for Trade and Sustainable Development Mr. Richard Samans, private sector, World Economic Forum Mr. Thomas Schneider, government, Government of Switzerland Ms. Hong Xue, civil society, Beijing Normal University Institute for Internet Policy & Law

Session Format: Round Table - 90 Min

Country: Switzerland
Stakeholder Group: Civil Society

Country: Switzerland
Stakeholder Group: Private Sector

Speaker: William Drake
Speaker: Richard Samans
Speaker: Alexander Fiona
Speaker: Anriette Esterhuysen
Speaker: Vint Cerf
Speaker: Raul Echeberria
Speaker: Torbjörn Fredriksson
Speaker: Wolfgang Kleinwächter
Speaker: Goran Marby
Speaker: Ricardo Meléndez-Ortiz
Speaker: Marietje Schaake
Speaker: Thomas Schneider
Speaker: Lee Tuthill
Speaker: Mary Uduma
Speaker: Hong Xue

Content of the Session:
The past few years have witnessed an increasingly intense debate on the world-wide growth of national data localization restrictions and barriers to Cross-Border Data Flows (CBDF). Data localization proposals and policies typically involved requirements such as: data must be processed by entities physically within a national territory; data processing must include a specific level of “local content,” or the use of locally provided services or equipment; data must be locally stored or “resident” in a national jurisdiction; data processing and/or storage must conform to national rather than internationally accepted technical and operational standards; or data transfers must be routed largely or solely within a national or regional space when possible. Barriers to CBDF may involve: prohibitions on the transfer of personally identifiable information to jurisdictions deemed to have inadequate laws regarding privacy and data protection; censorship and other limitations on information that governments deem to be ‘sensitive;’ or digital trade protectionism. Governments’ motivations for establishing such policies vary and may include goals such as promoting local industry, technology development, employment, and tax revenue; protecting their citizens’ privacy (or in some cases, claiming to); ensuring access to data for the purposes of law enforcement, and more broadly defending their legal jurisdiction over data; or advancing national security or an expansive vision of “cyber-sovereignty.”

The stakes here are high. For example, the McKinsey Global Institute has estimated that data flows enabled economic activity that boosted global GDP by US $2.8 trillion in 2014, and that data flows now have a larger impact on growth than traditional flows of traded goods. The growth of localization measures and barriers to data transfers could reduce these values and significantly impair not only business operations but also economic development and many vital social processes that are predicated upon the movement of data across a relatively open and unfragmented Internet. Accordingly, specific language limiting such policies has been included in a number of “mega-regional” trade agreements, such as the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA). While the TPP has been rejected by the new US government and the forecast for other agreements is cloudy at best, it is possible that at least some of the policies in question are inconsistent with certain governments’ existing commitments under the World Trade Organization’s (WTO) General Agreement on Trade in Services (GATS). Even so, the extent to which these issues should be addressed via trade instruments remains a highly controversial issue, with many in the global Internet community and civil society remaining very critical of non-transparent intergovernmental approaches to an increasingly important piece of global Internet governance, and many privacy advocates vehemently opposing the potential application of trade rules to personal data.

Accordingly, the purposes of this proposed workshop are four-fold. First, it would bring together senior participants in the international trade and Internet governance communities that to date have not had sufficient opportunities to dialogue on their respective approaches to these and related issues. Second, it would take stock of the growth of data localization measures and barriers to data flows and assess the scope and impacts of such policies. Third, it would consider what can be achieved via international trade instruments given the current geopolitical context. Fourth, and most importantly, it would explore the possibility of constructing a parallel track of multistakeholder dialogue and decisionmaking that is balanced and enjoys the support of diverse actors around the world. In particular, we would consider whether a global community of expertise and practice can be constructed to share information and devise effective normative agreements on the issues. Normative agreements involving sufficient monitoring and reporting could help to ensure that data policies are not applied in a manner that constitutes arbitrary discrimination or disguised digital protectionism, and do not impose restrictions that are greater than what is required to achieve legitimate public policy objectives.

The workshop would build on a report prepared by William J. Drake for the World Economic Forum (WEF) that is to be released in the autumn of 2017. This report will in turn build on a report on Internet Fragmentation by Drake, Vint Cerf, and Wolfgang Kleinwachter that was prepared for the WEF in 2016 as well as the outputs of the WEF/ICTSD E15 Initiative on Strengthening the Global Trade and Investment System The workshop would be the fifth in a series of international meetings held in 2017 to gather inputs on the construction of a multistakholder expert community on the issues. 

Relevance of the Session:
The session would explore the potential relevance of the multistakeholder cooperation models employed in Internet governance processes in addressing a set of issues that largely have been discussed in international trade policy circles. The growth of data localization and CBDF barriers directly affects the openness of the Internet, a key concern in Internet governance. The trends are also directly relevant to whether we can indeed shape our global digital future in a manner that balances national objectives with the transnational data flows central to the Internet's functioning and social utility.

Tag 1: Multistakeholder Cooperation
Tag 2: Internet Governance
Tag 3: 

The onsite moderator will pose a series of questions to the discussants and encourage interactive discussion. These will encompass a) the policies and their impacts; b) the role of trade mechanisms; and c) the prospects for multistakeholder cooperation. The organizer and onsite moderator have both organized dozens of successful Roundtable discussions involving 15 or more participants, including at the IGF, and know how to manage the narrative flow of a conversation. The onsite moderator will get the discussants to respond to each other, ensure that they stay on point, and manage their time effectively. To optimize the time allocation, not all discussants will speak to every question posed; a baseline framework for managing this will be agreed online by the participants in advance.

The Roundtable speakers are roughly 1/3rd from the USA, 1/3rd from Europe, and 1/3rd from the global South. There are 10 men and 6 women. Their stakeholder group breakdown is: 3 governmental, 3 intergovernmental organizations, 3 private sector, 2 technical community, and 5 civil society/research. 11 could be identified as primarily from the Internet governance community, 5 could be identified as primarily from the international trade diplomacy community. They are also diverse in intellectual perspectives and political positions on the issues to be addressed.

Onsite Moderator: Richard Samans
Online Moderator: Adam Peake
Rapporteur: Adam Schlosser

Online Participation:
At the 50 minute mark the discussion will be opened to all participants in the room and online on an equal rotating basis. The very experienced remote moderator will signal remote participants to speak or, if the technology fails, will read their typed interventions. In addition, the rapporteur and another colleague will live tweet the meeting so it can be followed in that manner.

Discussion facilitation:
Prior to the meeting the roundtable discussants will coordinate online to agree a baseline set of topics to be covered and time plan. At the event, Dr. Drake will provide 7 minute overview of the report that will serve as the foundation for a multistakeholder dialogue to be launched by the WEF in October 2017. The onsite moderator will then pose a series of questions to the discussants and encourage interactive discussion on each before moving to the next. At the 50 minute mark the discussion will be opened to other participants in the room and online on an equal rotating basis. The very experienced remote moderator will signal remote participants to speak or, if the technology fails, will read their typed interventions. In addition, the rapporteur and another colleague will live tweet the meeting so it can be followed in that