International Economic Law in the Era of Big Data: Interfacing Privacy Protection and Cross-border Data Flows

Abstract:

Cross-border data flows are essential to the contemporary digital economy. They underlie any digital trade transaction and have become an intrinsic part of an increasing number of innovative products and services, which not only enable innovation and growth but also contribute to overall social welfare. These benefits may however come with certain risks. The risk that has been now most widely acknowledged by scholars and policy-makers alike, and has been felt on the ground by regular users, is the impact of increased data collection and data use upon the privacy of individuals. The augmented risk for citizens’ privacy and the pronounced need to allow for cross-border flow of data coexist and present a distinct governance challenge that has been taken up in different discourses and venues, including trade ones.

The lecture will describe the challenges before international economic law in the era of Big Data by focussing in particular on the tension between data flows and data protection. It will analyse recent developments in free trade agreements that address this tension and sketch the diverging positions of the European Union and the United States. The lecture will map other existing governance solutions and seek to advance new ones that may reconcile the data-driven economy and the soverign right of states to protect the privacy of their citizens.

Suggested reading:

Mira Burri, ‘The Governance of Data and Data Flows in Trade Agreements: The Pitfalls of Legal Adaptation’, UC Davies Law Review 51 (2017), 65-132.

Paul M. Schwartz and Karl-Nikolaus Peifer, ‘Transatlantic Data Privacy Law’, The Georgetown Law Journal 106 (2017), 115-179.