The current data globalisation phenomenon is largely due to the close integration of borderless communications with our everyday comings and goings. Global communications are so embedded in the way we go about our lives that we are hardly aware of how far our data is travelling every second that goes by. But data is always on the move and we don’t even need to leave home to be contributing to this. Ordinary technology right at our fingertips is doing the job for us leaving behind an international trail of data – some more public than other.
The Internet is global by definition. Or more accurately, by design. The original idea behind the Internet was to rely on geographically dispersed computers to transmit packets of information that would be correctly assembled at destination. That concept developed very quickly into a borderless network and today we take it for granted that the Internet is unequivocally global. This effect has been maximised by our ability to communicate whilst on the move. Mobile communications have penetrated our lives at an even greater speed and in a more significant way than the Internet itself.
This trend has led visionaries like Google’s Eric Schmidt to affirm that thanks to mobile technology, the amount of digitally connected people will more than triple – going from the current 2 billion to 7 billion people – very soon. That is more than three times the amount of data generated today. Similarly, the global leader in professional networking, LinkedIn, which has just celebrated its 10th anniversary, is banking on mobile communications as one of the pillars for achieving its mission of connecting the world’s professionals.
As a result, everyone is global – every business, every consumer and every citizen. One of the realities of this situation has been exposed by the recent PRISM revelations, which highlight very clearly the global availability of digital communications data. Perversely, the news about the NSA programme is set to have a direct impact on the current and forthcoming legislative restrictions on international data flows, which is precisely one of the factors disrupting the globalisation of data. In fact, PRISM is already being referred to as a key justification for a tight EU data protection framework and strong jurisdictional limitations on data exports, no matter how non-sensical those limitations may otherwise be.
The public policy and regulatory consequences of the PRISM affair for international data flows are pretty predictable. Future ‘adequacy findings’ by the European Commission as well as Safe Harbor will be negatively affected. We can assume that if the European Commission decides to have a go at seeking a re-negotiation of Safe Harbor, this will be cited as a justification. Things will not end there. Both contractual safeguards and binding corporate rules will be expected to address possible conflicts of law involving data requests for law enforcement or national security reasons in a way that no blanket disclosures are allowed. And of course, the derogations from the prohibition on international data transfers will be narrowly interpreted, particularly when they refer to transfers that are necessary on grounds of public interest.
The conflicting realities of data globalisation could not be more striking. On the one hand, every day practice shows that data is geographically neutral and simply flows across global networks to make itself available to those with access to it. On the other, it is going to take a fair amount of convincing to show that any restrictions on international data flows should be both measured and realistic. To address these conflicting realities we must therefore acknowledge the global nature of the web and Internet communications, the borderless fluidity of the mobile ecosystem and our human ability to embrace the most ambitious innovations and make them ordinary. So since we cannot stop the technological evolution of our time and the increasing value of data, perhaps it is time to accept that regulating data flows should not be about putting up barriers but about applying globally recognised safeguards.
This article was first published in Data Protection Law & Policy in June 2013.