Private Governance Research Articles

Accidental Wiretaps: The Implications of False Positives By Always-Listening Devices For Privacy Law & Policy

Always-listening devices like smart speakers, smartphones, and other voice-activated technologies create enough privacy problems when working correctly. But these devices can also misinterpret what they hear, and thus accidentally record their surroundings without the consent of those they record, a phenomenon known as a ‘false positive.’ The privacy practices of device users add another complication: a recent study of individual privacy expectations regarding false positives by voice assistants depicts how people tend to carefully consider the privacy preferences of those closest to them when deciding whether to subject them to the risk of accidental recording, but often disregard the preferences of others. The failure of device owners to get consent from those around them is exacerbated by the accidental recordings, as it means that the companies collecting the recordings aren’t obtaining the consent to record their subjects that the Federal Wiretap Act, state wiretapping laws, and consumer protection laws require, as well as contravening the stringent privacy assurances that these companies generally provide. The laws governing surreptitious recordings also frequently rely on individual and societal expectations of privacy, which are warped by the justifiable resignation to privacy invasions that most people eventually acquire. The result is a legal regime ill-adapted to always-listening devices, with companies frequently violating wiretapping and consumer protection laws, regulators failing to enforce them, and widespread privacy violations. Ubiquitous, accidental wiretaps in our homes, workplaces, and schools are just one more example of why consent-centric approaches cannot sufficiently protect our privacy, and policymakers must learn from those failures rather than doubling down on a failed model of privacy governance.

Using cloud technology in health care during the COVID-19 pandemic

There is now increasing recognition of the potential of cloud technologies, which provide data storage and computing resources managed by external service providers, to help improve safety, quality, and efficiency of health care.1 However, adoption of cloud technology has been variable across health-care organisations, hampered by concerns that the technology might not align with existing methods of quality assurance and governance of privacy, data integrity, and service reliability.2,3 The compelling shared purpose and informational needs in the context of the COVID-19 pandemic have provided a powerful incentive to adopt and benefit from fast scale-up of cloud-based solutions.

Private sustainability governance, the Global South and COVID-19: Are changes to audit policies in light of the pandemic exacerbating existing inequalities?

The COVID-19 pandemic has disrupted global economic relations. Transnational private regulatory programs, such as sustainability certification and eco-labeling schemes that set standards for responsible production practices in global markets, have had to react. Private regulation’s market credibility is partially built on audits, which include field visits used to assess whether participating operators conform with a program’s standard. But COVID-19-related health and business restrictions have forced adjustments to field-audit policies. Literature on private governance has identified several barriers to participation of Global South operators, including the costs of certification, the availability of qualified auditors, and uncertain socio-economic benefits. Are audit policy changes made because of the COVID-19 pandemic exacerbating these barriers? We examine this question through a dataset constructed between April and November 2020 that contains information on COVID-19-related audit policy responses of 98 transnational private sustainability regulators. We describe the mixed transparency of these adjustments to date and five ways in which the adjustments create explicit and implicit barriers to operators from Global South countries. The changes create barriers through (1) the conditions set on when and how adjustments to audits are permitted, (2) the limited flexibility of substantive standards, (3) the potential costs of shifting to remote audits, (4) the focus on accommodating existing participants over new applicants, and (5) the potential challenges of accessing auditors to conduct assessments. We conclude with implications for research on private regulation post-COVID-19.

CONSTITUTIONALIZING ROLE OF TERMS OF SERVICE OF SOCIAL MEDIA PLATFORMS AND PROPOSED SOCIAL MEDIA USER BILLS OF RIGHTS

Multiple challenges and risks to democratic values and fundamental human rights emerge from the constitutulization processes of social media platforms. This article submits that more consideration has to be put on how private governance of social media platforms should be transparent, consensual, relatively stable in its application and how it should be enforced fairly. The values presented by the rule of law as well as traditional democratic principles of a sovereign state should inform the debate around contested relationship between the users and social media platforms. Digital constitutionalism is a concept that explains waves of constitutional counteractions as a result of a fast pace development of digital technologies. Digital constitutionalism is regarded as the idea that considers the constitutionalism of the digital society. This article focuses on examining constitutional tone of existing terms of service of a world leading social media platform Facebook and reviews potential value that digital Bills of Rights, intiated by various non-governmental organizations and individuals, may hold in shaping human rights’ compliant governance framework for social media platforms in the years to come. From the terms of service and bills of rights, it is based to show that Facebook is ready to show a peculiar configuration. At present, social media bills of rights and terms of service play the constitutionalizing roles. Nevertheless, it is not the aim of the current author to exhaust the topic, but rather to provide potential answers to the matters examined.

Global equitable access to vaccines, medicines and diagnostics for COVID-19: The role of patents as private governance

In June 2020, Gilead agreed to provide the USA with 500 000 doses of remdesivir—an antiviral drug which at that time was percieved to show promise in reducing the recovery...

Sailing in All Winds: Extraterritorial Regulation as a Trigger for Self-Regulatory Practices in Shipping Industry

The regulation of private activities that take place overseas has received significant attention in the legal scholarship. The traditional discussion of the topic observes such regulation from the perspectives of public international law principles of jurisdiction or private international law conflict of laws rules. The present article contributes to the discussion from the perspective of private parties engaged in shipping activities, who face an increasing need of compliance with different regulatory acts of extraterritorial application. It argues that the proliferation of such acts incentivizes private parties to include regulatory interests in their business activities. The article further suggests that extraterritorial regulation can serve as a trigger for transfer and intrinsic adoption of state’s regulatory interest by private parties. It observes the examples of such ‘privatization of extraterritoriality’ in corporate compliance policies and contractual CSR clauses used by shipping companies, noting their spillover effects over other parties. It further notes that the proliferation of extraterritorial regulation sometimes results in the universalization of responses from private parties, as acquisition of regulatory interest untied from its nation-state origins. The concluding section puts the observed phenomenon into a broader picture, discussing the contribution of extraterritorial regulation to the mechanisms of private governance.

日本の気候変動対策におけるプライベート・ガバナンス : 経団連「自主行動計画」の作動メカニズム

日本の気候変動対策におけるプライベート・ガバナンス : 経団連「自主行動計画」の作動メカニズム

COVID‐19 and Global Governance

Abstract The COVID-19 epidemic has sent economic and social shockwaves reverberating across the globe, and has shaken governance institutions at every level and across a range of issues, from trade to health and climate change An important question is whether COVID will accelerate, slow, or perhaps reverse some key trends in global governance Most prominently, the global and multilateral governance regimes that developed post-World War II were already weakening and fragmenting before COVID (Acharya, 2016) In a closely related phenomenon, cosmopolitan liberalism, as a set of institutions and ideologies committed to a democratic open society, human rights, and multiculturalism, has also retreated in the face of rising populism and authoritarianism in recent years (Norris and Inglehart, 2019) COVID could also affect a third important trend, the decline of state regulation and the rise of private, voluntary, and disclosure-based governance (Levy, Brown, and de Jong, 2010) The impact of COVID on these trends suggests some fruitful new directions for scholars of global governance and organizations

Home Ice Advantage: Securing Data Sovereignty for Canadians on Social Media

More than three in four Canadians use social media platforms to connect with others here at and around the world, often sharing life’s most intimate moments through public posts and private messages. In doing so, Canadians entrust these companies to secure and protect their personal data, which can include a wide range of sensitive information, such as their political opinions, or details on their sex life, personal finances and health. These companies are also entrusted to secure the sensitive data that they track and store, such as users’ location, search histories and biometric information such as facial features. But that trust is waning. Our surveys of Canadians indicate that social media platforms are the least trusted organizations in Canada to keep personal data secure and to act in the best interests of the public. As legal battles swirl between Europe, the U.S. and China over how to protect Facebook and TikTok data travelling across borders, there remain inadequate protections over how Canadians’ personal data are transferred and stored. This threatens Canadian sovereignty, and the digital security and privacy of millions of Canadians. Personal data can be accessed by national security and law enforcement agencies without sufficient legal protection under Canadian law in countries around the world. Technology companies can experience buy-outs, mergers and bankruptcy that can change where personal data are stored and the privacy protection they receive. Malicious hackers can also take advantage of data stored in locations where the data are subject to weak data protection safeguards. Social media platforms store the personal data of their Canadian users around the world, and provide little to no transparency as to where their data are stored or transferred to third parties. Canadian privacy law does not require users to consent to personal data transfer outside of Canada. Our research shows that many popular platforms transfer data to a variety of jurisdictions, and none specifically cite Canada as a country of storage. Nor are there meaningfully enforced limits on the transfer of personal data to jurisdictions with insufficient protection against surveillance or unauthorized access. In the two decades since the enactment of Canada’s current privacy law, there has not been a single fine or enforced remedy against companies transferring personal data outside of Canada with insufficient protection. Jurisdictions around the world are introducing a range of new approaches to address these challenges and ensure data protection laws extend to data moved outside its borders, including outright bans on cross-border transfer, new requirements for informed consent, and rigorous evaluations of other jurisdictions’ data protection regimes. While these notions can challenge the idea of a free and open Internet, Canadians are looking for answers — our recent survey finds that 86% of Canadians support requirements to keep Canadians’ data within Canada. This discussion paper lays out public policy options for how Canadian privacy law should protect the security and privacy of personal data stored outside of Canada. Advancing these protections for Canadians should complement ongoing efforts to advance international cooperation and governance of digital privacy and security, for example through bi- and multilateral agreements. The global fight over data is likely only to intensify in the coming years, and a key test for Canada’s sovereignty will be how it is positioned among its international peers. Canada must define its position internationally, with the U.S., China, and the European Union all showing very different models of governance. This paper is meant to advance public engagement and policy development in Canada going forward to maintain our home ice advantage.

The Institute of International Finance: From Poacher to Gamekeeper?

AbstractThe Institute of International Finance (IIF) is a key actor in global finance, mixing private-interest representation and market governance roles. Analyzing the historical development of the IIF offers important insights into the interaction between state and business and the resulting patterns of public and private governance. Based on archive sources and a unique set of interviews with elite policymakers spanning three decades, I argue that market structures, interest groups, and public policymaking processes stand in a recursive relationship. Secondly, I argue that interest groups take on private governance roles with the aim to remain the focal point of public policymakers vis-à-vis competing interest groups. This has important implications for the study of interest groups and global financial governance. The analysis of interest groups should be extended to the way they shape markets through private governance mechanisms and how that recursively feeds back into interest group advocacy and public policymaking processes to fully grasp lobbying dynamics. The study of global governance should include analysis of interest group competition within the opportunities and constraints emanating from public policymaking processes so as to understand the emergence of private patterns of governance and their interaction with public governance mechanisms.

The political economy of inclusion and exclusion: state, labour and the costs of supply chain integration in the Eastern Caribbean

The dual emphasis on the benefits of global supply chain integration and private governance to address its ethical gaps have given prominence to an inclusive vision of chains which, this paper argues, drawing on the case of St. Vincent and the Grenadines (SVG), has been greatly exaggerated. In the post-war era, SVG built a successful banana industry under a preferential agreement with the EU. When the agreement collapsed under free trade reforms, the burden of finding new forms of reintegration fell on the state and laboring classes. The paper argues that conventional supply chain approaches have adopted a static understanding of the relationship between inclusion and exclusion, overlooking the exclusionary nature of supply chains and placing too much emphasis on assessing the possibilities for private supply chain initiatives to address their negative social and environmental impacts. The effect has been to obscure the centrality of the state and laboring classes in continuing, out of necessity, to confront, manage, and address the many costs that corporations are not willing to pay. It is their centrality to managing the uneven and unpredictable nature of supply chain integration/reintegration, that is often the most hidden of all.

Climate activism and its effects

AbstractAs activism including climate strikes have become a common occurrence around the world, it is important to consider the growth in climate change‐focused activism and participation in social movements as a specific type of civic engagement. Although studies have analyzed climate activism and the climate movement, there is limited research that integrates it into the broader literature on civic engagement and which considers how these forms of engagement are related to specific climate outcomes. Here, we take a first step in understanding the material outcomes of these efforts. Specifically, we provide an overview of climate‐related activism as a form of civic engagement, paying particular attention to the targets of this activism and its environmental outcomes in terms of greenhouse gas emissions reductions. Then, we focus on one of the most common tactics to gain momentum in recent years: the school strike, which has mobilized a growing number of participants around the world. We discuss how the Coronavirus pandemic has changed the climate movement with much activism moving online. We conclude by discussing the overall state of the knowledge about the outcomes of climate activism, as well as highlighting the need for careful research to measure its effects across scale.This article is categorized under Policy and Governance > Private Governance of Climate Change The Social Status of Climate Change Knowledge > Climate Science and Social Movements

Public Participation in Smart-City Governance: A Qualitative Content Analysis of Public Comments in Urban China

Public participation is crucial in the process of urban governance in smart-city initiatives to enable urban planners and policy makers to take account of the real public needs. Our study aims to develop an analytical framework using citizen-centred qualitative data to analyse urban problems and identify the areas most needed for urban governance. Taking a Chinese megacity as the study area, we first utilise a web-crawling tool to retrieve public comments from an online comment board and employ the Baidu Application Programming Interfaces and a qualitative content analysis for data reclassification. We then analyse the urban problems reflected by negative comments in terms of their statistical and spatial distribution, and the associative factors to explain their formation. Our findings show that urban problems are predominantly related to construction and housing, and most frequently appear in industry-oriented areas and newly developed economic development zones on the urban fringe, where the reconciling of government-centred governance and private governance by real estate developers and property management companies is most needed. Areas with higher land prices and a higher proportion of aged population tend to have fewer urban problems, while various types of civil facilities affect the prevalence of urban problems differently.

The Interaction of Private and Public Governance: The Case of Sustainability Standards for Palm Oil

By providing insights into the interaction between private-driven and public-driven governance initiatives in the context of the “Roundtable of Sustainable Palm Oil” (RSPO) and the “Indonesian Sustainable Palm Oil” (ISPO), this article sheds new light the interaction between private and public governance. It investigates how the relationship between the RSPO and the ISPO evolves over time and who and what drives this evolution. While the interaction between these standard schemes has initially largely been characterized by competition, it has become more collaborative and also coordinated in nature. This article argues that the experimentalist architecture of palm oil governance has fostered mechanisms for coordination across public and private certification schemes and has helped to join up the separate components of the regime complex through productive interactions. At the same time, several gaps and challenges remain, especially in light of the different interests of the multiple public and private actors involved in palm oil.

Can Permissionless Blockchains Avoid Governance and the Law?

Permission-less (or public) block-chain networks are a new form of decentralized private governance in the digital sphere. Though legal scholars recognize the significance of law in the use of block-chain, existing research using legal and institutional perspectives leaves block-chain governance as something of a black box. We provide a more granular analysis, finding that block-chain governance operates on four distinct levels. Governance at the protocol layer involves discrete institutional design choices intended to constrain network members’ incentives in an ongoing sense. Subsidiary governance arises from the need for communities to draft protocol updates and from the fact that governance protocol design choices create discrete concentrations of political power within the network. Competitive governance forces arise because cryptocurrency networks are constrained by the possibility of exit of participants and users to other alternatives. Finally, in terms of superior governance, permission-less cryptocurrency participants and users are subject to a variety of laws and regulations due to how cryptocurrencies implicate property, contracts, tax, and securities law. Since the interaction of these governance aspects shapes the operation of any given network, legal and regulatory governance of block-chain ought to consider permission-less block-chains as confronting political and governance dilemmas much like any complex organization. Predicting the effect legal and regulatory treatment of permission-less block-chains requires an accurate understanding of the incentives of their members, all of which are greatly shaped by the governance forces we outline in detail here.

THE RIGHT TO THE CITY AND DATA PROTECTION: COMPLEMENTARY FOR DEVELOPING CITIZEN-CENTRIC DIGITAL CITIES?

In digital cities, urban space integrates physical and digital worlds. Information and communication technologies, often controlled by private companies, become ubiquitous, not least to capture and process (personal) data. While private governance can reconfigure public values and relations between public institutions and citizens, the question arises who decides what cities become, whose interests they serve. This paper presents ongoing research about the Right to the City (Lefebvre, 1968) and the right to personal data protection, guided by a social constructivist perspective and the methodological framework of actor-network-theory. As part of a four-year research track, we conducted an empirical cross-case analysis of urban data processing projects affected by the GDPR. The aim was to answer the question of how ‘users’ of cities can be represented meaningfully in processes that shape cities by means of those two rights. To do so, we interviewed people directly involved in Belgian ‘smart’ city projects. The main results of this research show that the two rights can be complementary in fostering agency and protecting citizen interests in technologically enhanced, citizen-centric cities. Data protection impacts smart city developments, but true agency of citizens as in the Right to the City remains limited. We will discuss why especially interdisciplinary research is required to further understanding in this complex, cross-domain environment and to lower barriers to citizen inclusion in practice.

Grounding transnational business governance: A political‐strategic perspective on government responses in the Global South

AbstractRecent scholarship on transnational business governance has begun to examine public‐private interactions and the active role of governments. We make two key contributions that integrate and expand this literature. First, in juxtaposition to functionalist accounts, we foreground the fundamentally political and often contentious character of these interactions. As private transnational governance schemes and standards “hit the ground,” private‐public interactions, we argue, are embedded in national political arenas and tied to domestic distributional struggles among competing regulatory coalitions. Building upon multiple empirical streams of research, we develop a political‐strategic framework that maps the diversity of Southern government responses (substitute, adopt, repurpose, replace, or reject) to transnational private governance. Our framework shows that government responses are a function of both strategic fit with domestic industrial capabilities and structures, and strength of developmental state capacity. Second, our proposed framework adopts the vantage point of Global South governments and industries, particularly how development challenges and strategic options within global value chains affect their understanding of, and responses to, transnational schemes and standards. This is an important corrective to a Northern bias in the private governance literature.

The organizational ecology of global governance

The ecology of governance organizations (GOs) matters for what is or is not governed, what legitimate powers any governor may hold, and whose political preferences are instantiated in rules. The array of actors who comprise the current system of global governance has grown dramatically in recent decades. Especially notable has been the growth of private governance organizations (PGOs). Drawing on organizational ecology, I posit that the rise of PGOs is both required and facilitated by disagreements between states that block the creation of what might be otherwise effective intergovernmental organizations (IGOs). In a form of “double-negative regulation,” states block IGOs, which in turn leave open niches that are then filled by PGOs, which then both complement and sometimes substitute for state law. The organizational ecology approach outlined here extends and refocuses inquiry in systematic ways that give us a fuller understanding of how and why PGOs have emerged as one of the most striking features of the contemporary world order. The key innovations in this paper are to (a) shift the level of analysis from single agents or populations of agents to the entire field of GOs, including states, IGOs, and PGOs and (b) draw on principles of ecology to understand the composition and dynamics of systems of governance.

Chinese investment in the Brazilian soybean sector: Navigating relations of private governance

AbstractThis paper examines how Chinese agribusiness firms are engaging with established systems of private governance in the Brazilian soybean sector and how that engagement is variously accommodated, contested, and configured by local realities that reflect the uneven history of transnational agribusiness development across the Brazilian agro‐export region. Using qualitative data collected at three research sites that represent different historical moments in the Brazilian agro‐export region (Mato Grosso, Goiás, and Bahia), the paper argues that the social structures underlying the particular agrarian histories of these three subregions create unique contexts Chinese firms must navigate, which in turn shapes their engagement with the private agribusiness regime across space. Although the private agribusiness regime is often portrayed as a top‐down system of governance that subjugates the polity to the demands of capital, this framing neglects to understand how that system of power is contested, negotiated, and reshaped on the ground. These three cases serve to historicize the uneven penetration of Chinese firms across the Brazilian soybean sector.

Understanding regional value chains through the interaction of public and private governance: Insights from Southern Africa’s apparel sector

Regional value chains (RVCs) and South–South trade are increasingly considered key features of 21st-century globalisation. This article investigates how RVCs are shaped by the interaction of private and public governance. It evaluates how this interaction unfolded in Southern Africa’s apparel RVCs, exploring trade, investment and labour regimes across three levels of analysis: national, regional, and global. The paper draws on trade data, secondary literature, and interviews with suppliers and institutions in Eswatini and Lesotho (the largest exporters to the region), and lead firms in South Africa (the largest regional importer). The findings underline the critical role of public governance in shaping retailers’ and suppliers’ participation in RVCs through: (i) regional ‘trade regimes’ protecting regional exporters from global competitors, and recent shifts in global trade regimes; (ii) national and regional ‘investment regimes’ facilitating investment flows from South Africa to Lesotho and Eswatini, and the more recent shift of US-oriented suppliers towards regional markets; and (iii) ‘labour regimes’, including lower wages, less comprehensive labour legislation and weaker trade unions in Lesotho and Eswatini compared to South Africa. The article concludes by considering the policy implications of the interaction of private and public governance for existing and future RVCs in Sub-Saharan Africa.