Data flows and national security: a conceptual framework to assess restrictions on data flows under GATS security exception
Digital Policy, Regulation and Governance
ISSN: 2398-5038
Article publication date: 19 December 2018
Issue publication date: 23 January 2019
Abstract
Purpose
The paper aims to explore the national security implications of a potential for a World Trade Organization (WTO) dispute on data flow restrictions. It proposes a basic conceptual framework to assess data flows’ restrictions under General Agreement on Trade in Services (GATS) security exception.
Design/methodology/approach
If a case were to be brought before the WTO dispute settlement, the defender could support its case by invoking the security exception. This paper analyzes three main arguments that could be brought up: protection from cyber espionage, protection from cyberattacks on critical infrastructure and access to data needed to prevent terrorist threats. These three cases are analyzed both legally and technically to assess the relevance of restrictions on data flows under GATS security exception. This analysis can, more generally, inform the debate on the protection of national security in the digital era.
Findings
In the three cases, restrictions on data considered critical for national security might raise the cost of certain attacks. However, the risks would remain pervasive and national security would not be significantly enhanced both legally and technically. The implementation of good security standards and encryption techniques appears to be a more effective way to ensure a better response to cyber threats. All in all, it will be important to investigate on a case by case basis whether the scope of the measure (sectors and data covered) is considered proportionate and whether the measure in question in practice reduces the exposure of the country to cyber espionage, cyberattacks and terrorist threats.
Originality/value
This paper represents a contribution to the literature because it is the first paper to address systematically the issue of data flows and national security in the context of a GATS dispute and because it provides a unique perspective that looks both at legal and technical arguments.
Keywords
Acknowledgements
This paper is published as a working paper in SIPA Tech & Policy Initiative, Working Paper Series 2. Comments or questions can be sent to martina.ferracane@gmail.com. The author would like to thank Columbia University SIPA and the Carnegie Corporation for their generous research support. I am also grateful to Francesco Casotto (CISCO), Lee Tuthill (WTO) and Prof. Anupam Chander (UC Davis) for their valuable comments and suggestions to improve the quality of the paper. In addition, I would like to thank the participants to the GIG-ARTS Conference 2018 in Cardiff, ECPR General Conference 2018 in Hamburg and GigaNet Symposium 2018 in Paris for their comments.
Citation
Ferracane, M.F. (2019), "Data flows and national security: a conceptual framework to assess restrictions on data flows under GATS security exception", Digital Policy, Regulation and Governance, Vol. 21 No. 1, pp. 44-70. https://doi.org/10.1108/DPRG-09-2018-0052
Publisher
:Emerald Publishing Limited
Copyright © 2018, Emerald Publishing Limited