IGF 2017 WS #32 Data Localization and Barriers to Crossborder Data Flows: Toward a Multi-Track Approach

Short Title: 

Data Localization and Barriers to Crossborder Data Flows

Proposer's Name: Mr. William Drake
Proposer's Organization: University of Zurich
Co-Proposer's Name: Mr. Richard Samans
Co-Proposer's Organization: World Economic Forum
Co-Organizers:
Ms. Fiona Alexander, government, Government of the United States of America Mr. Vint Cerf, private sector, Google Mr. William J. Drake, civil society, University of Zurich Ms. Anriette Esterhuysen, civil society, Association for Progressive Communication Mr. Ricardo Meléndez-Ortiz, civil society, International Centre for Trade and Sustainable Development Mr. Richard Samans, private sector, World Economic Forum Mr. Thomas Schneider, government, Government of Switzerland Ms. Hong Xue, civil society, Beijing Normal University Institute for Internet Policy & Law

Session Format: Round Table - 90 Min

Proposer:
Country: Switzerland
Stakeholder Group: Civil Society

Co-Proposer:
Country: Switzerland
Stakeholder Group: Private Sector

Speaker: William Drake
Speaker: Richard Samans
Speaker: Alexander Fiona
Speaker: Anriette Esterhuysen
Speaker: Vint Cerf
Speaker: Raul Echeberria
Speaker: Torbjörn Fredriksson
Speaker: Wolfgang Kleinwächter
Speaker: Goran Marby
Speaker: Ricardo Meléndez-Ortiz
Speaker: Marietje Schaake
Speaker: Thomas Schneider
Speaker: Lee Tuthill
Speaker: Mary Uduma
Speaker: Hong Xue

Content of the Session:
The past few years have witnessed an increasingly intense debate on the world-wide growth of national data localization restrictions and barriers to Cross-Border Data Flows (CBDF). Data localization proposals and policies typically involved requirements such as: data must be processed by entities physically within a national territory; data processing must include a specific level of “local content,” or the use of locally provided services or equipment; data must be locally stored or “resident” in a national jurisdiction; data processing and/or storage must conform to national rather than internationally accepted technical and operational standards; or data transfers must be routed largely or solely within a national or regional space when possible. Barriers to CBDF may involve: prohibitions on the transfer of personally identifiable information to jurisdictions deemed to have inadequate laws regarding privacy and data protection; censorship and other limitations on information that governments deem to be ‘sensitive;’ or digital trade protectionism. Governments’ motivations for establishing such policies vary and may include goals such as promoting local industry, technology development, employment, and tax revenue; protecting their citizens’ privacy (or in some cases, claiming to); ensuring access to data for the purposes of law enforcement, and more broadly defending their legal jurisdiction over data; or advancing national security or an expansive vision of “cyber-sovereignty.”

The stakes here are high. For example, the McKinsey Global Institute has estimated that data flows enabled economic activity that boosted global GDP by US $2.8 trillion in 2014, and that data flows now have a larger impact on growth than traditional flows of traded goods. The growth of localization measures and barriers to data transfers could reduce these values and significantly impair not only business operations but also economic development and many vital social processes that are predicated upon the movement of data across a relatively open and unfragmented Internet. Accordingly, specific language limiting such policies has been included in a number of “mega-regional” trade agreements, such as the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA). While the TPP has been rejected by the new US government and the forecast for other agreements is cloudy at best, it is possible that at least some of the policies in question are inconsistent with certain governments’ existing commitments under the World Trade Organization’s (WTO) General Agreement on Trade in Services (GATS). Even so, the extent to which these issues should be addressed via trade instruments remains a highly controversial issue, with many in the global Internet community and civil society remaining very critical of non-transparent intergovernmental approaches to an increasingly important piece of global Internet governance, and many privacy advocates vehemently opposing the potential application of trade rules to personal data.

Accordingly, the purposes of this proposed workshop are four-fold. First, it would bring together senior participants in the international trade and Internet governance communities that to date have not had sufficient opportunities to dialogue on their respective approaches to these and related issues. Second, it would take stock of the growth of data localization measures and barriers to data flows and assess the scope and impacts of such policies. Third, it would consider what can be achieved via international trade instruments given the current geopolitical context. Fourth, and most importantly, it would explore the possibility of constructing a parallel track of multistakeholder dialogue and decisionmaking that is balanced and enjoys the support of diverse actors around the world. In particular, we would consider whether a global community of expertise and practice can be constructed to share information and devise effective normative agreements on the issues. Normative agreements involving sufficient monitoring and reporting could help to ensure that data policies are not applied in a manner that constitutes arbitrary discrimination or disguised digital protectionism, and do not impose restrictions that are greater than what is required to achieve legitimate public policy objectives.

The workshop would build on a report prepared by William J. Drake for the World Economic Forum (WEF) that is to be released in the autumn of 2017. This report will in turn build on a report on Internet Fragmentation by Drake, Vint Cerf, and Wolfgang Kleinwachter that was prepared for the WEF in 2016 www3.weforum.org/docs/WEF_FII_Internet_Fragmentation_An_Overview_2016.pdf as well as the outputs of the WEF/ICTSD E15 Initiative on Strengthening the Global Trade and Investment System www.e15initiative.org. The workshop would be the fifth in a series of international meetings held in 2017 to gather inputs on the construction of a multistakholder expert community on the issues. 

Relevance of the Session:
The session would explore the potential relevance of the multistakeholder cooperation models employed in Internet governance processes in addressing a set of issues that largely have been discussed in international trade policy circles. The growth of data localization and CBDF barriers directly affects the openness of the Internet, a key concern in Internet governance. The trends are also directly relevant to whether we can indeed shape our global digital future in a manner that balances national objectives with the transnational data flows central to the Internet's functioning and social utility.

Tag 1: Multistakeholder Cooperation
Tag 2: Internet Governance
Tag 3: 

Interventions:
The onsite moderator will pose a series of questions to the discussants and encourage interactive discussion. These will encompass a) the policies and their impacts; b) the role of trade mechanisms; and c) the prospects for multistakeholder cooperation. The organizer and onsite moderator have both organized dozens of successful Roundtable discussions involving 15 or more participants, including at the IGF, and know how to manage the narrative flow of a conversation. The onsite moderator will get the discussants to respond to each other, ensure that they stay on point, and manage their time effectively. To optimize the time allocation, not all discussants will speak to every question posed; a baseline framework for managing this will be agreed online by the participants in advance.

Diversity:
The Roundtable speakers are roughly 1/3rd from the USA, 1/3rd from Europe, and 1/3rd from the global South. There are 10 men and 6 women. Their stakeholder group breakdown is: 3 governmental, 3 intergovernmental organizations, 3 private sector, 2 technical community, and 5 civil society/research. 11 could be identified as primarily from the Internet governance community, 5 could be identified as primarily from the international trade diplomacy community. They are also diverse in intellectual perspectives and political positions on the issues to be addressed.

Onsite Moderator: Richard Samans
Online Moderator: Adam Peake
Rapporteur: Kimberley Botwright

Online Participation:
At the 50 minute mark the discussion will be opened to all participants in the room and online on an equal rotating basis. The very experienced remote moderator will signal remote participants to speak or, if the technology fails, will read their typed interventions. In addition, the rapporteur and another colleague will live tweet the meeting so it can be followed in that manner.

Discussion facilitation:
Prior to the meeting the roundtable discussants will coordinate online to agree a baseline set of topics to be covered and time plan. At the event, Dr. Drake will provide 7 minute overview of the report that will serve as the foundation for a multistakeholder dialogue to be launched by the WEF in October 2017. The onsite moderator will then pose a series of questions to the discussants and encourage interactive discussion on each before moving to the next. At the 50 minute mark the discussion will be opened to other participants in the room and online on an equal rotating basis. The very experienced remote moderator will signal remote participants to speak or, if the technology fails, will read their typed interventions. In addition, the rapporteur and another colleague will live tweet the meeting so it can be followed in that manner.

Conducted a Workshop in IGF before?: Yes
Link to Report: http://bit.ly/2oSI4Zy

Agenda: 

The onsite moderator will pose a series of questions to the discussants and encourage interactive discussion. These will concern a) the causes and effects of the policies in questions; b) the role of trade mechanisms and digital trade discourse in shaping global responses to the policies; and c) the prospects for bridging the trade and Internet communities and for promoting multistakeholder engagement in the context of a multi-track approach to the issues.  The discussion will then be opened to to all participants for a wide-ranging dialogue.

Report: 

Organizer:

William J. Drake; University of Zurich

Moderator:

Richard Samans, Head of Global Agenda, Member of the Managing Board, World Economic Forum

Participants:

•    Fiona M. Alexander, Associate Administrator, Office of International Affairs, NTIA, Department of Commerce, USA
•    Vinton G. Cerf, Vice President & Chief Internet Evangelist, Google
•    William J. Drake, International Fellow & Lecturer, U. of Zurich
•    Raúl Echeberría, Vice President, Global Engagement, Internet Society
•    Anriette Esterhuysen, Director for Global Policy and Strategy, Association for Progressive Communications
•    Torbjörn Fredriksson, Head, ICT Analysis Section, Division on Technology and Logistics, UN Conference on Trade and Development 
•    Goran Marby, President and CEO, Internet Corporation for Assigned Names and Numbers
•    Ricardo Meléndez-Ortiz, CEO, International Centre for Trade and Sustainable Development
•    Marietje Schaake, Member of the European Parliament, the Netherlands
•    Thomas Schneider, Vice-Director, Federal Office of Communications, Switzerland
•    Lee Tuthill, Counsellor, Trade in Services Division, World Trade Organization
•    Mary Uduma, Managing Director, Jaeno Digital Solutions, Nigeria
•    Hong Xue, Professor and Director of the Institute for Internet Policy and Law, Beijing Normal University, China

The past few years have witnessed an increasingly intense debate on the world-wide growth of national data localization restrictions and barriers to cross-border data flows (CBDF).  Such measures can significantly impair global electronic commerce, economic development, and many vital social processes that are predicated upon the movement of data across a relatively open and unfragmented Internet.  In response, provisions limiting them have been included in a number of pending or concluded “mega- regional” trade agreements and have been proposed in the World Trade Organization (WTO).   The World Economic Forum (WEF) has organized a process of analysis and dialogue on these issues that has been facilitated by papers prepared by Dr. William Drake. This IGF roundtable workshop built off the most recent paper in the WEF project, which proposes a multi-track approach to the issues including a) normative intergovernmental processes, b) multistakeholder processes, and c) reformed international trade processes.

The conversation was organized in two parts.  In the first half of the session, the roundtable participants discussed the forces driving and issues raised by data localization and CBDF barriers, and in particular the question of whether international trade policy mechanisms alone were sufficient to meet the challenges.  The speakers broadly agreed that trade agreements have a role to play, but that they face political challenges and some institutional constraints and thus may not be sufficient as solutions.  They also noted that as efforts to devise new trade rules face hurdles, work is needed to assess the applicability and implementation of existing agreements in the WTO and elsewhere.  At the same time, the participants drew attention to the need to address the concerns of those countries that have supported CBDF restrictions and opposed negotiating further trade rules in the near-term.  

In the second half of the session, the roundtable participants considered the proposed multi-track approach.  There was strong agreement on the need for a serious engagement between the international trade and Internet governance communities in the context of parallel movement along these tracks.  Participants noted the importance of ensuring complementarity and avoiding excess redundancy between work conducted in these different settings. Several speakers expressed particular interest in the role that multistakeholder processes could play in helping to explore the issues, consider the concerns of the respective parties, and set the agenda for international collaboration.  They also noted that progress would require the participation of not only experts, stakeholders and international negotiators, but also national-level regulators who deal with CBDF in such fields as tax, finance, and privacy and data protection.  Above all, participants agreed with the proposition that the international community should avoid taking actions that could damage and further fragment the Internet.

The discussion was then opened to the packed room and the online participants, and robust debate ensued.  Participants called attention to the new Dynamic Coalition on Trade and the Internet that was launched at this IGF and would be taking up the sort of issues addressed by the workshop;  emphasized the importance of free and equal access to data and suggested we consider data to be a collective resource of communities; expressed support for the three tracks but wondered if multi‐stakeholder decision‐making procedures can be developed;  argued that what we really need is a global anti‐trust mechanism and global data protection norms rather than trade agreements;  raised the question of whether data localization was really possible to sustain; noted that at the recent WTO ministerial meeting in Buenos Ares, 27 developing countries at all levels of development were among the 70 countries that agreed to begin discussing the possibility of negotiated rules in the WTO; argued that binding trade rules are important and allow governments leeway in implementation in accordance with national conditions; stressed the importance of freedom on information legislation; and emphasized the importance of civil society and other actors having positive agendas for international cooperation.

Gender Reporting

The room was full with the number of participants in the room between 60 and 80. A rough estimate is that about 40% were female. The session did not discuss gender equality and/or women’s empowerment.


Zircon - This is a contributing Drupal Theme
Design by WeebPal.