Navigating the Dataverse: Privacy, Technology ... - The ICHRP

the domain of international law. International law is inter-state law. It is premised on the
equal status of states as its principal actors and constructs affairs between states as
literally taking place between these (nominally unitary) actors.
As with any commercial endeavour, information technology is solidly supported
by a body of law, but in its cross-border aspect, relatively little of the relevant
law belongs to the domain of international law.
The existence and primacy of borders are thus fundamental to the operation of
international law. This does not of course mean that transnational phenomena, such
as the circulation of information, escape international law. On the contrary, international
law governs the inter-state circulation of all sorts of goods and services, and in principle
information need not be an exception. Telecommunications agreements (under the
aegis of the International Telecommunications Union), for example, are crucial to the
smooth running of the internet.
Having facilitated the existence and coordination of a global telecommunications
infrastructure, in a number of areas international law steps back from what actually
happens in that infrastructure. International economic (WTO) law is a good example.
Trade in goods and services on the internet is not fundamentally different from other
forms of transnational trade and so international economic law applies to it. But the
relative absence of traditional trade barriers online tends to mean that ‘application’
amounts to little more than ratification and conservation of a status quo. Many other
processes, including the raw transmission of information itself, appear to escape any
regulative dimension of the international law framework.
Certain forms of international data flows take place in ways that circumvent or blur the
bounds of international governance. Satellite communications allow for direct passage
of information with relatively little inter-state coordination or need for international law.
In these areas, the primary legal structures are national, though the national laws of
different countries will naturally tend to overlap. Which law governs the downloading
of a database of credit card details to a terminal in Russia from a server in Texas,
using an ISP in the Netherlands? There is no shortage of law here – but it is not, in the
main, international law. Where three (sovereign) equals may have responsibility in such
situations, there are opportunities for collaboration as well as conflict, but much may
also fall between the gaps.
Certain forms of international data flows take place in ways that circumvent or
blur the bounds of international governance.
Moreover, whereas international law is associated with the public sphere, transnational
law is associated with the private in two senses:
1. It includes “private international law”, a field that deals with “conflict of laws”,
where decisions must be taken over which national laws applies to a dispute of a
private nature that has some transnational element.
2. Transnational activities (such as cross-border information flows) and activities
involving transnational actors have generated norms and customs or have been the
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