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Data Governance Problem

Updated: Oct 8, 2021

by Douglas W. Arner, Giuliano G. Castellano, and Eriks Selga (The University of Hong Kong, Faculty of Law) :: SSRN | August 27, 2021

[8 Oct - UPDATED BLOG LINKS & VIDEO BELOW]
The Transnational Data Governance Problem - Download this paper

The historical paradigm of data globalization is fragmenting. Fragmentation of transnational data flows and related governance frameworks is emerging globally as the result of evolving differences between major economies, heightened by technological and geopolitical competition and conflicts. The irreconcilable positions of the three major economies and standard-setting jurisdictions – the United States, the European Union, and the People’s Republic of China – are breaking down the global data economy and threaten to fracture its core infrastructure, the Internet.

Arner: We characterize this dynamic as the wicked problem of transnational data governance, as no single solution can address it.

The paper highlights three approaches to address this wicked problem: (1) a bilateral approach that draws from the riparian system for water rights; (2) a plurilateral approach allowing the free circulation data along sector-specific regulatory coalitions; (3) a multilateral approach, entailing a hard law Digital Bretton Woods or a soft law Digital Stability Board. The implementation of a combination of these approaches offers a basis for a workable foundation for transnational data governance that harnesses the benefits of data globalization without undermining domestic sovereign priorities.

Castellano: We live in a data-dependent society; data circulation, ownership and control are key to support health, finance, inclusiveness as well as a variety of social policies.




RELATED VIDEO
In this episode, Professor Douglas Arner retraces the fragmentation of transnational data governance from the birth of the World Wide Web in August 1991, pinning it to the "evolving differences between major economies, heightened by technological and geopolitical competition and conflicts" as well as the "irreconcilable positions of the three major economies and standard-setting jurisdictions".

Blog Readings


Arner, D.W., Castellano, G.G., and Selga, E. (7 October 2021), Geopolitics: Is Transnational Data Governance Broken? AsiaGlobal Online, https://www.asiaglobalonline.hku.hk/transnational-data-governance-broken


Arner, D.W., Castellano, G.G., and Selga, E. (5 October 2021), The Transnational Data Governance Problem, Oxford Business Law Blog, https://www.law.ox.ac.uk/business-law-blog/blog/2021/10/transnational-data-governance-problem



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