International Trade Law Meets Data Ethics: A Brave New World

Abstract

The unprecedented integration of digital technologies in the economic and social lives of human beings has led to strong concerns regarding the ethical use of data collected by such technologies. In response to these concerns, several intergovernmental and multistakeholder bodies as well as individual governments have started devising data ethics compliance frameworks. These frameworks integrate certain core principles such as human rights protection, ethical design, algorithmic accountability, and data privacy and security. Governments are now also imposing measures to achieve greater compliance with these core principles of data ethics including banning certain (especially foreign) data-driven applications and services; restricting cross-border transfers and processing of data; and imposing varied corporate compliance requirements for offering data-driven technologies. However, some measures aimed at protecting and promoting data ethics (Data Ethics-related Measures) can have the consequence of restricting cross-border trade, especially in digital and data-driven services and technologies. Against this background, this article assesses whether Data Ethics-related Measures are consistent with international trade law, looking at the treaties of the World Trade Organization (WTO) and several Preferential Trade Agreements (PTAs). It argues that certain Data Ethics-related Measures may be inconsistent with obligations contained in international trade agreements, including obligations on non-discrimination, market access, domestic regulation, and intellectual property protection. However, international trade law does not per se inhibit Data Ethics-related Measures. For instance, exceptions contained in international trade agreements can be interpreted to allow measures that support a human rights-centric approach to data governance. Further, rules on trade secret protection may be interpreted and applied meaningfully to balance commercial and critical public interests such as facilitating algorithmic accountability and ethical design in data-driven technologies. Finally, provisions on domestic regulation can potentially ensure that Data Ethics-related Measures are implemented in a fair and objective manner, and that technical standards and licensing requirements for data-driven digital services are transparent, objective, and not unnecessarily burdensome. However, given the legal, technological, and political uncertainties at hand, governments are unlikely to perceive trade rules as a foolproof mechanism to preserve their policy space for regulating data-driven technologies for ethical reasons. Therefore, this article explores new avenues in international trade law to accommodate data ethics norms. It argues that international trade institutions can better co-opt data ethics frameworks by facilitating enhanced high-level cooperation among countries on cross-border data transfer mechanisms as well as digital development and inclusion. For example, trade bodies, including the WTO, can proactively engage with other international, regional, and transnational or multistakeholder bodies involved in norm development in data ethics, especially on privacy/data protection, digital inclusion, and the ethical use of data in the designing and application of digital technologies. Further, where appropriate and necessary, international trade rules must acknowledge the prevailing global best practices in data-driven sectors, especially the role of multistakeholder and private technical standards and protocols in promoting ethical and robust data-driven technologies. One possible means to do so is adopting new rules at the WTO and through PTAs (especially for trade in services and electronic commerce) that recognize relevant technical standards, protocols and best practices developed by multistakeholder internet institutions and representative private sector bodies.