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Privacy Protection(Ism): the Latest Wave of Trade Constraints on Regulatory Autonomy University of Miami Law Review Volume 74 Number 2 SYMPOSIUM Sin Límites: Law & Article 5 Business at the Gateway to the Americas 2-20-2020 Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy Svetlana Yakovleva Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the International Trade Law Commons, Law and Economics Commons, and the Privacy Law Commons Recommended Citation Svetlana Yakovleva, Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy, 74 U. Miami L. Rev. 416 (2020) Available at: https://repository.law.miami.edu/umlr/vol74/iss2/5 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy SVETLANA YAKOVLEVA* Countries spend billions of dollars each year to strengthen their discursive power to shape international pol- icy debates. They do so because in public policy conversa- tions labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy de- bates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning but is socially constructed by the power of dis- course used in international negotiations, and in the inter- pretation and application of international trade policy and * PhD candidate at the Institute for Information Law (IViR) at the University of Amsterdam and Senior Legal Adviser at De Brauw Blackstone Westbroek (Amsterdam). The Author thanks her PhD supervisors, Professors Joris van Ho- boken and Ingo Venzke, as well as Professor Daniel Gervais for helping to de- velop ideas for this Article and for their helpful comments and guidance. An ear- lier version of this Article was presented at the 10th Annual Privacy Law Scholars Conference, Washington D.C., May 2018 (PLSC 2018), the Amsterdam Privacy Conference 2018, Amsterdam, the Netherlands, Oct. 2018 (APC 2018), and the Twelfth International Conference Computers, Privacy and Data Protection: Data Protection and Democracy, Brussels, Belgium, Jan.-Feb. 2019 (CPDP 2019). The Author is grateful to Professors Chris Hoofnagle, William Kovacic, Mark Mac- Carthy, Paul Ohm, Kenneth Propp, and other participants of the PLSC 2018, APC 2018 and CPDP 2019 for their thoughtful feedback. The Author also thanks the editorial team of University of Miami Law Review for their meticulous editing and helpful comments. All errors and opinions expressed are the Author’s own. 416 2020] PRIVACY PROTECTION(ISM) 417 rules. In other words, there are as many definitions of “(dig- ital) protectionism” as there are discourses. The U.S. and E.U. “digital trade” discourses illustrate this point. Using the same term, those trading partners advance utterly differ- ent discourses and agendas: an economic discourse with economic efficiency as the main benchmark (United States), and a more multidisciplinary discourse where both eco- nomic efficiency and protection of fundamental rights are equally important (European Union). Second, based on a de- tailed evaluation of the economic “digital trade” discourse, the Article contends that the coining of the term “digital pro- tectionism” to refer to domestic information governance policies not yet fully covered by trade law disciplines is not a logical step to respond to objectively changing circum- stances, but rather a product of that discourse, which is com- ing to dominate U.S.-led international trade negotiations. The Article demonstrates how this redefinition of “protec- tionism” has already resulted in the adoption of interna- tional trade rules in recent trade agreements further restrict- ing domestic autonomy to protect the rights to privacy and the protection of personal data. The Article suggests that the distinction between privacy and personal data protection and protectionism is a moral question, not a question of eco- nomic efficiency. Therefore, when a policy conversation, such as the one on cross-border data flows, involves non- economic spill-over effects to individual rights, such conver- sation should not be confined within the straightjacket of trade economics, but rather placed in a broader normative perspective. Finally, the Article argues that, in conducting recently restarted multilateral negotiations on electronic commerce at the World Trade Organization, countries should rethink the goals of international trade for the twenty-first century. Such goals should determine and define the discourse, not the other way around. The discussion should not be about what “protectionism” means but about how far domestic regimes are willing to let trade rules inter- fere in their autonomy to protect their societal, cultural, and political values. 418 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 74:416 INTRODUCTION .............................................................................419 I. THE EXPANSION OF THE NOTION OF “PROTECTIONISM” ............429 A. Defining Protectionism: Key Disagreement ....................433 B. Protectionism and the Classical Free Trade Idea ............434 C. Protectionism and “Embedded Liberalism” of GATT 1947..................................................................................437 D. The New Protectionism and the Neoliberal Discourse: Towards an Ever-Broader Conceptualization of “Protectionism” ...............................................................443 1. THE “NEW PROTECTIONISM” ........................................443 2. “FAIR TRADE” ...............................................................446 a. The “New Protectionism” in “Fair Trade” Clothing .................................................................446 b. “Fair Trade” and the Human Rights Movement ....448 3. NEOLIBERAL DISCOURSE ..............................................450 4. THE IMPACT OF NEOLIBERAL DISCOURSE ON FORMATION AND FUNCTIONING OF INTERNATIONAL TRADING SYSTEM ........................................................455 II. DIGITAL PROTECTIONISM: THE LATEST WAVE OF TRADE CONSTRAINTS ON REGULATORY AUTONOMY ........................464 A. The Source of Controversy: E.U. Restrictions on Cross-Border Transfers of Personal Data .......................466 B. The Digital Trade Discourse(s) ........................................469 C. Framing Data Protection as “Digital Protectionism” in the Digital Trade Discourse ........................................473 D. Business Interests Behind the “Digital Trade” Discourse .........................................................................482 E. Measures Banning “Digital Protectionism” in Recent Trade Agreements ............................................................486 F. The “Digital Protectionism” Label as a Trigger to Redefine “Barriers to Trade” ..........................................496 III. THE BASELINE BETWEEN PRIVACY PROTECTION AND PROTECTIONISM: THE ROLE OF DISCOURSE ...........................499 A. Normative Approaches to Privacy and Data Protection .500 B. Limitations of the Economic Approach to Privacy and Data Protection ................................................................507 CONCLUDING REMARKS: TOWARDS A NEW DIGITAL TRADE REGIME ..................................................................................515 2020] PRIVACY PROTECTION(ISM) 419 INTRODUCTION Labels and framing matter in public policy discussions. So much so, in fact, that they often dictate the outcome of the discourse. For example, China spent billions of dollars a year over the past several years to strengthen its discursive power to shape specific interna- tional policy debates,1 especially in artificial intelligence (“AI”), which is an area where countries race for global technological and 2 policy dominance. Similarly, the “digital protectionism” label has 1 David Shambaugh, China’s Soft-Power Push: The Search for Respect, FOREIGN AFF., July-Aug. 2015, at 99, 99–100. China’s diplomatic and development schemes form just one part of a much broader agenda aimed at enhancing its soft power in media, publishing, education, the arts, sports, and other domains. Nobody knows for sure how much China spends on these activities, but analysts estimate that the annual budget for “external propaganda” runs in the neighborhood of $10 bil- lion annually. By contrast, the U.S. Department of State spent $666 million on public diplomacy in fiscal year 2014. Id. See Hung-jen Wang, Contextualizing China’s Call for Discourse Power in International Politics, CHINA: INT’L J., Dec. 2015, at 172, 173 n.4. (“Point 5 in Section 7 of ‘Decision of the Central Committee of the Communist Party of China on Major Issues Pertaining to Deeping Reform of the Cultural System and Pro- moting the Great Development and Flouring of Social Culture’ states that China needs to ‘strengthen international discourse power, and properly respond to exter- nal world concerns.’”); see also JACOB TURNER, ROBOT RULES: REGULATING ARTIFICIAL INTELLIGENCE 234–35 (2019) (citing recommendation III from
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