Theme 2: Relationship Between Domestic and International Levers

When overarching common principles in international data frameworks contradict national laws, there is often little benefit in having convergence.¹ A central challenge is grappling with the proper relationship between the international and domestic levers of data regimes.

Several experts suggested that there is already a lack of compatibility between domestic and international levers around data governance. One participant noted that many countries’ international engagement on these data issues (free flows, law enforcement access to data, content moderation, etc.) is hampered by a lack of domestic consensus on the policy outcomes that the country should try to achieve. Even a relatively comprehensive data governance regime like GDPR arguably fits into this category, insofar as various motivations like consumer data protection, pushback against American tech firms, and mandating better tech company cybersecurity may have been in conflict, to some degree, in the final law.

Another participant argued that there will always be a patchwork of laws around any issue. In the early days of internet governance—and, more or less, still today—most countries treated the governance of the (then, relatively) global network as a domestic issue and passed laws as such; there is a growing recognition of the need for multilateral efforts in this regard.

With data governance, therefore, countries must consider the ways in which domestic and/or international levers could work together to most appropriately and effectively manage worldwide data flows. Otherwise, states may risk harmfully imposing wide-ranging laws on global telecommunications systems that end up negating the benefits of convergence. As Daphne Keller, Intermediary Liability Director at the Stanford Center for Internet & Society (disclaimer: she did not participate in this roundtable), noted recently, it seems “perfectly reasonable” for companies to comply with certain data rules in different jurisdictions, “but that’s exactly the problem: every court in every country will want to do the same thing.”²

With data governance, therefore, countries must consider the ways in which domestic and/or international levers could work together to most appropriately and effectively manage worldwide data flows.

Participants identified a number of challenges moving forward:

• Designing the patchwork: Should certain countries work together with certain other countries to make their regulatory patchworks compatible? Should countries make their regulatory regimes compatible with as many others as possible? Should sovereignty and individual priorities instead be the primary concern for governments? This relates to the question of a coalition of countries that work together to enforce certain free data flow rules, which we discuss in the next section.
• Identifying the international bodies: Which international bodies might be appropriate venues through which to address certain data governance issues? For instance, how might security exceptions in the WTO constrain the ability of states to effectively use the WTO to enforce free-data-flow policies?
• Maintaining a relatively global data system: If some countries should desire to maintain relatively free data flows, how do they manage relationships between domestic and international levers so as to not impose too many restrictions on global networks? How much regulation is too much regulation?³

This leads to our discussion in the next section of a third theme: the building of coalitions.