This open access book offers a new account on the legal conflict between privacy and trade in the digital sphere. It develops a fundamental rights theory with a new right to continuous protection of personal data and explores the room for the application of this new right in trade law. Replicable legal analysis and practical solutions show the way to deal with cross-border data flows without violating fundamental rights and trade law principles. The interplay of privacy and trade became a topic of worldwide attention in the wake of Edward Snowden’s revelations concerning US mass surveillance. Based on claims brought forward by the activist Maximilian Schrems, the ECJ passed down two high-profile rulings restricting EU-US data flows. Personal data is relevant for a wide range of services that are supplied across borders and restrictions on data flows therefore have an impact on the trade with such services. After the two rulings by the ECJ, it is less clear then ever how privacy protection and trade can be brought together on an international scale. Although it was widely understood that the legal dispute over EU-US data flows concerns the broad application of EU data protection law, it has never been fully explored just how far the EU’s requirements for the protection of digital rights go and what this means beyond EU-US data flows. This book shows how the international effects of EU data protection law are rooted in the EU Charter of Fundamental Rights and that the architecture of EU law demands that the Charter as primary EU law takes precedence over international law. The book sets out to solve the problem of how the EU legal data transfer regime must be designed to implement the EU’s extraterritorial fundamental rights requirements without violating the principles of the WTO’s law on services. It also addresses current developments in international trade law – the conclusion of comprehensive trade agreements – and offers suggestion for the design of data flow clauses that accommodate privacy and trade.

An exploration of the current state of global trade law in the era of Big Data and AI. This title is also available as Open Access on Cambridge Core.

Governing Cross-Border Data Flows explores how the European Union can simultaneously reconcile and pursue two important legal and policy objectives, namely: protecting fundamental rights guaranteed under the EU Charter of Fundamental Rights (EU Charter) concerning privacy and personal data, while also maintaining and developing a binding, rules-based global trading system to ensure appropriate access to foreign digital markets for EU businesses. The book demonstrates a significant conflict between international trade law and European data privacy law when it comes to the governance of cross-border flows of personal data. To resolve the tensions caused by this clash, the book proposes concrete and detailed ways to ameliorate the situation from both ends (international trade and personal data protection), specifically through reforms of both international trade and chapter V of the General Data Protection Regulation (GDPR). To explain how such reforms could be effectuated, Yakovleva examines the role of discourse in the evolution of trade law in the last two decades. The book also paves the way for the further research necessary to design a fully-fledged reform proposal of the EU framework for the transfer of personal data outside the European Economic Area.

Data localization laws are emerging as a pernicious form of non-tariff barrier which significantly harms the growth of trade in a digitally powered world. An International Political Economy approach provides a more comprehensive analysis of the policy rationale behind such laws, as compared to a purely economic approach, which only focuses on economic losses resulting from protectionism. On a closer analysis, it is found that different countries may have different policy rationales for implementing data localization laws - while some promote their domestic ICT industry through forced localization measures, others have concerns regarding national security, privacy, and ensuring sovereign control in the highly privatized world of internet governance. It is not always possible to demarcate the “protectionist” rationale from that of rational “data protection”. To address data localization effectively and facilitate digital trade, it is not sufficient to negotiate for free flow of data in trade agreements without Governments and companies being open and transparent about the related issues of privacy, national security and consumer protection. Particularly, the role of US Government as well as leading US-based technology companies will be instrumental in this regard. At the same time, it may be necessary to develop policy initiatives both to encourage transparent and clear international standards on data security, as well as to enable higher levels of digital innovation in developing countries such that they can harness the benefits of evolving internet technologies.

This book explores the coming into being in European Union (EU) law of the fundamental right to personal data protection. Approaching legal evolution through the lens of law as text, it unearths the steps that led to the emergence of this new right. It throws light on the right’s significance, and reveals the intricacies of its relationship with privacy. The right to personal data protection is now officially recognised as an EU fundamental right. As such, it is expected to play a critical role in the future European personal data protection legal landscape, seemingly displacing the right to privacy. This volume is based on the premise that an accurate understanding of the right’s emergence is crucial to ensure its correct interpretation and development. Key questions addressed include: How did the new right surface in EU law? How could the EU Charter of Fundamental Rights claim to render ‘more visible’ an invisible right? And how did EU law allow for the creation of a new right while ensuring consistency with existing legal instruments and case law? The book first investigates the roots of personal data protection, studying the redefinition of privacy in the United States in the 1960s, as well as pioneering developments in European countries and in international organisations. It then analyses the EU’s involvement since the 1970s up to the introduction of legislative proposals in 2012. It grants particular attention to changes triggered in law by language and, specifically, by the coexistence of languages and legal systems that determine meaning in EU law. Embracing simultaneously EU law’s multilingualism and the challenging notion of the untranslatability of words, this work opens up an inspiring way of understanding legal change. This book will appeal to legal scholars, policy makers, legal practitioners, privacy and personal data protection activists, and philosophers of law, as well as, more generally, anyone interested in how law works.

Artificial intelligence (AI) technologies are transforming economies, societies, and geopolitics. Enabled by the exponential increase of data that is collected, transmitted, and processed transnationally, these changes have important implications for international economic law (IEL). This volume examines the dynamic interplay between AI and IEL by addressing an array of critical new questions, including: How to conceptualize, categorize, and analyze AI for purposes of IEL? How is AI affecting established concepts and rubrics of IEL? Is there a need to reconfigure IEL, and if so, how? Contributors also respond to other cross-cutting issues, including digital inequality, data protection, algorithms and ethics, the regulation of AI-use cases (autonomous vehicles), and systemic shifts in e-commerce (digital trade) and industrial production (fourth industrial revolution). This title is also available as Open Access on Cambridge Core.

This book identifies and explains the different national approaches to data protection – the legal regulation of the collection, storage, transmission and use of information concerning identified or identifiable individuals – and determines the extent to which they could be harmonised in the foreseeable future. In recent years, data protection has become a major concern in many countries, as well as at supranational and international levels. In fact, the emergence of computing technologies that allow lower-cost processing of increasing amounts of information, associated with the advent and exponential use of the Internet and other communication networks and the widespread liberalization of the trans-border flow of information have enabled the large-scale collection and processing of personal data, not only for scientific or commercial uses, but also for political uses. A growing number of governmental and private organizations now possess and use data processing in order to determine, predict and influence individual behavior in all fields of human activity. This inevitably entails new risks, from the perspective of individual privacy, but also other fundamental rights, such as the right not to be discriminated against, fair competition between commercial enterprises and the proper functioning of democratic institutions. These phenomena have not been ignored from a legal point of view: at the national, supranational and international levels, an increasing number of regulatory instruments – including the European Union’s General Data Protection Regulation applicable as of 25 May 2018 – have been adopted with the purpose of preventing personal data misuse. Nevertheless, distinct national approaches still prevail in this domain, notably those that separate the comprehensive and detailed protective rules adopted in Europe since the 1995 Directive on the processing of personal data from the more fragmented and liberal attitude of American courts and legislators in this respect. In a globalized world, in which personal data can instantly circulate and be used simultaneously in communications networks that are ubiquitous by nature, these different national and regional approaches are a major source of legal conflict.