With the rapid digitalisation of the economy, cross-border data flows have become essential for the functioning of different sectors of the economy, including the digital services industry. However, governments often restrict cross-border flows through various laws, regulations, policies and administrative measures (or ‘data-restrictive measures’) to achieve internet-related policy objectives such as regulating online content, protecting online privacy of internet users, and cybersecurity protection. These measures typically interfere with the architecture of the internet and the technical protocols/designs of digital services, resulting in economically and technologically inefficient outcomes. Further, as data-restrictive measures constrain cross-border supply of digital services, they constitute trade barriers, and therefore may violate provisions of the General Agreement on Trade in Services (‘GATS’) of the World Trade Organization (‘WTO’). This thesis investigates how GATS applies to data-restrictive measures and whether its rules can balance trade and internet policy objectives. It first highlights the complementary relationship of the three fundamental principles of internet governance applicable to cross-border data flows, namely internet openness, privacy and security. It then proposes a theoretical framework whereby GATS can be aligned with these three principles to support both an open and predictable framework for digital trade and robust internet policies. The thesis applies this framework to three common types of datarestrictive measures, namely online content regulation measures, privacy-related datarestrictive measures, and cybersecurity-related data-restrictive measures. This thesis finds that GATS can be thoughtfully applied and interpreted to align with principles of internet openness, privacy and security. For example, commitments of Members in their GATS Schedules of Commitments can be interpreted in a technologically neutral manner to facilitate both trade liberalisation and internet openness. Further, GATS obligations on non-discrimination, domestic regulation and market access (subject to Members’ relevant commitments and exemptions) generally facilitate an open market for cross-border data flows, thereby supporting internet openness. Finally, under GATS exceptions, Panels can distinguish protectionist datarestrictive measures disguised as cybersecurity/privacy/content regulation measures from measures genuinely necessary to achieve these objectives. To conduct a holistic assessment of data-restrictive measures under GATS, Panels should use both legal and technical evidence, including relying on internet technical and policy expertise. However, the extent to which GATS aligns with the principles of internet openness, privacy and security is constrained by the lack of multilateral consensus on internet policy issues and the somewhat outdated architecture of GATS. Therefore, in addition to interpreting existing GATS provisions more meaningfully, this thesis proposes a multipronged approach to further strengthen alignment of GATS with internet openness, privacy and security. This approach requires: meaningful use of GATS provisions on transparency and mutual recognition; introducing reforms in WTO law to incorporate relevant disciplines on cross-border data flows; and exploring options outside traditional multilateral mechanisms including developing a non-binding WTO declaration on data flows and facilitating stronger regulatory cooperation on data governance in relevant international/transnational institutions. This thesis concludes that although international trade agreements such as GATS cannot resolve all challenges pertaining to data flows, they can and should play a more proactive role in balancing trade and internet policy objectives.

When data flows across borders: Aligning international trade law with internet policy objectives

Measures restricting data flows outside one's borders, including mandatory data/server localization measures, are not only a barrier to trade, but also largely ineffective in achieving better internet security or trust. Nevertheless, governments deploy such measures, primarily on grounds of cybersecurity and privacy, potentially violating their obligations under the General Agreement on Trade in Services (GATS). In this article, I investigate whether GATS-inconsistent measures may be justified under GATS Art. XIV when aimed at ensuring privacy or cybersecurity, and, if so, whether GATS Art. XIV effectively balances trade and internet policy. As the internet governance framework is complex and somewhat ambiguous, applying GATS Art. XIV to cybersecurity/privacy measures necessitates balancing of trade liberalization principles and domestic internet policy. This exercise can be effective in weeding out data localization measures disguised as privacy/cybersecurity measures, particularly by employing relevant technical and factual evidence. However, given the lack of binding international law/norms on these issues, GATS Art. XIV has a limited role, particularly in cases involving direct conflict between multistakeholder/transnational internet norms and domestic internet policies, or where the measures are founded on contentious standards/benchmarks on privacy/cybersecurity. Ultimately, ensuring free and secure data flows requires a multidimensional policy response, including strengthening linkages between trade law and internet governance.

Privacy, Cybersecurity, and GATS Article XIV: A New Frontier for Trade and Internet Regulation?

While the emergence of big data raises concerns regarding governance and public policy, it also creates opportunities for diversifying the toolkit for analysis for the policy sciences as a whole, i.e., research concerning policy analysis as well as policy studies. Further, it opens avenues for practice, which together with research requires adaptation in teaching curricula if policy education were to remain relevant. However, it is not clear to what extent this opportunity is being realized in public policy research and teaching. In this study, we examine the prevalence of big data analytics in public policy research and pedagogy using bibliometric analysis and topic modeling for the former, and content analysis of course titles and descriptions for the latter. We find that despite significant scope for application of various big data techniques, the use of these analytic techniques in public policy has been largely limited to select institutions in a few countries. Further, data science has received limited attention in policy pedagogy, once again with significant geographic variation in its prevalence. We conclude that, to stay relevant, the policy sciences need to pay more attention to the integration of big data techniques in policy research, pedagogy, and thereby practice.

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Holding out the promise of Lasswell's dream: Big data analytics in public policy research and teaching

The article discusses the problems of power asymmetry and political dynamics in the era of Big Data, assessing the impact Big Data may have on power relations and political regimes. While the issues of political ethics of the data turn are mostly discussed in relation to democracies, little attention has been given to hybrid regimes and autocracies, some of which are actively introducing Big Data policies. We argue that although the effects of Big Data on politics are ambivalent, it can become a powerful instrument of authoritarian resilience through ICT-facilitated repression, legitimation and cooptation. The ability of autocracies to become data-driven depends on their capacity, control powers and policies. We further analyze the state of the Big Data policy in Russia. Although the country may become a case of data-driven authoritarianism, it will be the result of the current discursive and political competition among actors. The ethical critique of Big Data should then be based on the empirical findings of Big Data use by non-democracies.

Data-Driven Authoritarianism: Non-Democracies and Big Data

https://publications.hse.ru/mirror/pubs/share/direct/215311468

The use of Big Data: A Russian perspective of personal data security

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Introducing Artificial Intelligence into Law Enforcement Practice: The Case of Russia

/pdf/technological-and-legal-issues-of-identifying-a-person-on-8nubx0j00o.pdf

Vladimir Elin

Papers

The use of Big Data: A Russian perspective of personal data security

Introducing Artificial Intelligence into Law Enforcement Practice: The Case of Russia

Technological and Legal Issues of Identifying a Person on the Internet to Ensure Information Security