Lessons from Internet Shutdowns Jurisprudence for Data Localization

Abstract

Abstract Internet shutdowns is a state action terminating the interactive communication among its subjects either entirely or partially. Robust jurisprudence already established on internet shutdowns can lend itself to the task of finding a stable norm for evaluating data localization schemes. Data localizations have been roundly criticized as barriers to trade. However, as shown in this chapter, the applicable WTO trade norms, namely free flow of information, do not produce a stable norm for justifying or evaluating data localizations. For one, WTO rules are subject to exceptions such as protection of public morals, life, health, and privacy under which cross-border acquisition or transfer of data can be readily restricted. It is important to produce an effective norm; otherwise it allows the race to the bottom: As shown in this chapter, claims of digital sovereignty by one country (e.g., United States) ends up rationalizing and thereby escalating other countries’ (e.g., China) localization efforts. It is important to find a coherent, unified international Internet governance norm under which data localization schemes and other data sovereignty claims can be properly evaluated. As much of data sovereignty or digital sovereignty implicates greater censorship, benign or baneful, human rights are viewed as a source of norm for evaluating data localization in this chapter. Then, the human rights jurisprudence on internet shutdowns can be an important source to extrapolate from to achieve such governance norm.