Unit 7 - Readings & Viewings

The practical problem in addressing the digital economy in the cross-border setting is that there are several different complexes of issues, some tied to internet governance and the control of information, others tied to business models and regulation.  Meanwhile, for a variety of reasons the digital economy has been addressed of late more via FTAs than within the multilateral WTO trading system, despite a variety of long-running WTO programs.  Last but not least, in practice questions about the internet and regulation typically are raised in the form of challenges to existing structures and practices which typically took root in US practice, but increasingly face challenges in differing policy environments abroad.

How is the digital economy different?  Watch “Welcome to the Digital Economy,” (APEC, 02/25/19;  catchy music, APEC is a voluntary Asia-Pacific economic forum dating back to the 1990s, but is more of a high level discussion shop like the OECD rather than structured FTA like TPP or RCEP) at https://www.apec.org/Press/Videos/2019/0225_Digital-Economy

Read Berry & Reisman, “Policy Challenges of Cross-Border Cloud Computing (web version May 2012 USITC)"

Read concerning more recent cross-border data flows specifically:

a. Jonathan Hillman, “The Global Battle for Digital Trade:  The United States, European Union, and China Back Competing Rules” (Blog Post:  The Future of Digital Trade Policy and the Role of the U.S. and UK, CSIS, 04/13/18)

b. Wikipedia, GDPR (EU)

c. Schremms case rejecting EU-US Data Protection Shield as inadequate (EU Court of Justice, C-311/18, 07/16/20)

d. Data Republic, “Data sovereignty and the future of cross-border information sharing:  Understanding the new rules for the data-driven global economy” (white paper, 11/19 following the 2019 G20 meeting;  note countries, including Indonesia, insisting on “data sovereignty” in terms of keeping local personal data in-country on local servers)

As background on the cross-border e-commerce (services) issue from a US perspective more generally, look again at:

a. GATS Articles I and XVII (Art I recites modes of delivery for services, while Art XVII is actually the GATS national treatment provision (GATS Art II is the services MFN provision)

b. What does TPP mean for the open internet? (IIEP Policy Brief 2015)

c. Then, as necessary you can consult the TPP text

d. USTR, United States-Mexico-Canada Trade Factsheet:  Modernizing NAFTA into a 21st Century Trade Agreement (USTR October 2018;  recognize that this is more the outline of the NAFTA Version 2.0 or USMCA IP, internet and e-commerce provisions at the “agreement in principle” level, not the final agreement signed November 30, 2018, which you can access on the USTR website)

e. Geist, “How the USMCA falls short on digital trade, data protection and privacy” (Washington Post 10/03/18)

Remember, however, that TPP-11 or USMCA’s digital economy provisions borrowed from the TPP represent the US view of the digital economy’s preferred legal framework;  meanwhile, there are competing views in the EU and Asia reviewed in the sources above.