Sensoring the Oceans: The Argo Floats Array in the Governance of Science Data Infrastructures

What role do governance arrangements, background legal rules, and the core infrastructures play in enabling data collection, determining what “ocean data” is produced, and when and how it is made available? We explore this question by focusing on data about oceanic features produced by Argo – an international program, operationalized by state agencies and research institutions, that comprises arrays of autonomous floats for ocean observation. Through examination of annual meeting notes, interviews, and observation of the Argo Steering Committee’s annual meeting, we analyze the techniques and practices involved in planning, testing, calibrating, validating, and error-correcting that ultimately lead to the production, transmission, and dissemination of Argo data. We then position Argo within the institutional governance of oceans, weather, climate and, most recently, earth systems to illustrate both the evolution of Argo’s role and its evolving and uneasy position within different governance approaches. In the conclusion, we challenge the utility of “ocean data” as an analytical category and highlight the risks of over-coordination and institutionalization of data infrastructures. We suggest that allowing data infrastructures like Argo to develop organically might lead to productive (if unexpected) connections, fusions, or splits, which might in turn reorient the focus of observation towards unexplored interactions between and within earth systems. We hope that our analysis helps bring to the fore some core data-infrastructural features of planetary governance as it now exists and will (have to) rapidly further evolve.

The final version of this working paper will be published in “Governance by Data: Infrastructures of Algorithmic Rule” (Cambridge University Press), edited by Fleur Johns, Gavin Sullivan, and Dimitri van Den Meerssche.

From Headlines to Al: Narrowing the Bargaining Gaps between News and AI Companies

This paper explores the interplay between litigation, legislation, and infrastructures as regulation in relation to scraping news texts by artificial intelligence (AI). It delves into the pivotal role of scraping public texts from news websites in training AI, which raises conflicts over data generation and revenue distribution between news and AI companies. The current bargaining imbalances between the parties limit news companies from receiving adequate compensation, potentially undermining incentives for public news creation. The paper analyzes the limitations of litigation in addressing text-scraping disputes due to its lengthy, costly nature and fragmented US case law. It proposes targeted legislative interventions inspired by Australian and Canadian models regarding presenting news on digital advertising platforms. The three proposed regulatory measures are collaborative negotiations by the new companies, integrating AI technologies into future collaborations, and regulating Robot.txt and AI.txt infrastructures while embracing the fair use doctrine. These tools can improve the bargaining in the shadow of the law between news and AI companies by tipping the scale in favor of news companies. Despite their challenges, these regulatory measures suggest new avenues for value distribution between the news and AI companies in the ever-evolving technological landscape.

This paper was initially written for the Global Data Law course. It won second prize in the Berkeley Technology Law Journal writing competition 2024 and is forthcoming in that journal.

Unveiling China’s Generative AI Regulation

The Cyberspace Administration of China (CAC) released Draft Measures for the Management of Generative AI Services (the “Draft Measures”) on April 11, 2023. The comment period closed on May 10, 2023. Public statements by industry participants and legal experts provided insight into the likely content of their comments. It is now the turn of the CAC as China’s “cyber super-regulator” to consider these comments and likely produce a revised text.

This blog post analyzes the provisions and implications of the Draft Measures. It covers the Draft Measures’ scope of application, how they apply to the development and deployment lifecycle of generative AI systems, and how they deal with the ability of generative AI systems to “hallucinate” (that is, produce inaccurate or baseless output). It also highlights potential developments and contextual points about the Draft Measures that industry and observers should pay attention to.

Published by the Future of Privacy Forum blog. The blog post builds on insights developed in the context of Guarini Global Law & Tech’s conference on “how (not) to regulate generative AI”.

Confronting Data Inequality

Control over data conveys significant social, economic, and political power. Unequal control over data—a pervasive form of digital inequality—is a problem for economic development, human agency, and collective self-determination that needs to be addressed. This Article takes steps in this direction by analyzing the extent to which law facilitates unequal control over data and by suggesting ways in which legal interventions could lead to more equal control over data. We use the term "data inequality" to capture unequal control over data-not only in terms of having or not having data, but also in terms of having or not having the ''power to datafy" (i.e., deciding what becomes or does not become data). We argue that data inequality is a function of unequal control over the infrastructures that generate, shape, process, store, transfer, and use data. Existing law often regulates data as an object to be transferred, protected, shared, and exploited and is not always attuned to the salience of infrastructural control over data. While there are no easy solutions to the variegated causes and consequences of data inequality, we suggest that retaining flexibility to experiment with different approaches; reclaiming infrastructural control; systematically demanding enhanced transparency; pooling data and bargaining power; and developing differentiated and conditional access to data mechanisms may help in confronting data inequality more effectively going forward.

Published in Columbia Journal of Transnational Law, Volume 60, Issue 3 (2022), pp. 829-956. The paper was initially written as a background paper for the World Development Report 2021: Data for Better Lives. It draws on ideas developed in Guarini Global Law & Tech’s Global Data Law project.

Illicit Antiquities and the Internet: The Trafficking of Heritage on Digital Platforms

The contemporary internet has become the transnational marketplace for the sale and trafficking of illicit products, from drugs and guns to malware and stolen user information. Given the scale of these activities, these marketplaces have drawn the attention of international and national law enforcement bodies as well as scholars of cybersecurity and criminal activities. As such, these platforms have moved to the ‘dark web’ or other encrypted communication channels and separated from the ‘surface web’ platforms run by global platform companies, which are the increasing focus of both government regulation and scholars of data privacy law. Among such illicit goods, one is often ignored though globally traded via established marketplaces on social media platforms: looted antiquities. Although representing only a portion of an already small global illicit trafficking network, such activities on internet platforms, particularly Facebook, can cause immense damage to archaeological and cultural heritage sites. Such marketplaces on major internet platforms provide a unique case study in global data privacy and cybersecurity law that has largely gone unstudied. This paper analyzes the trafficking of illicitly acquired antiquities on a variety of internet platforms—particularly Facebook—as an illustration of issues with both the current framework of global data privacy law and the moderation and regulation of such transnational criminal activity. This note will review and critique the existing literature on platform moderation and digital infrastructure and propose and examine various solutions to the mechanisms by which illicit activities endure, specifically by focusing on the potential of multistakeholder collaboration to bring effectively targeted moderation to the trade in illicit antiquities online.

Published in the New York University Journal of International Law and Politics, Vol. 54 (2022), pp. 659-698. It received the journal’s award for the best student note published in the spring 2022 edition of the publication.

This paper originated in the Guarini Colloquium: Regulating Global Digital Corporations convened by Thomas Streinz and Joseph Weiler in fall 2020.

The Digital Markets Act (DMA): A Procompetitive Recalibration of Data Relations?

Since its publication in December 2020, the European Commission’s regulatory proposal for a Digital Markets Act (DMA) continues to be the subject of sustained political and academic interest, particularly in the United States and Europe. Part of the “European strategy for data”, the DMA is designed to address “the most salient incidences of unfair practices and weak contestability” in the digital economy, responding to concerns about the data-derived dominance of U.S. technology companies operating in Europe. This paper aims to provide the first comprehensive legal analysis of the DMA’s recalibration of data relations in the European Union. Through an analysis of the data-specific obligations imposed on gatekeepers under the DMA and their interaction with existing laws and jurisprudence, this paper finds that the proposed access rights and limitations on the collection, combination and use of data give rise to significant ambiguities and could make “Big Tech” the winners of an act originally designed to tackle their dominance. This paper also finds that the DMA may recalibrate data relations in favor of Chinese tech companies wishing to strengthen their position in the EU against their U.S. competitors. Nevertheless, this paper will show that the adoption of the DMA will be a positive first step in the direction of recalibrating data relations in a way that – once teased out by future enforcement and caselaw – could allow for a more active contestation of digital markets, and a freer flow of data.

This paper originated in the Global Data Law course. It was published by the Illinois Journal of Law, Technology and Policy, Volume 2022, Issue 1 (pp. 101-154).

Designing International Economic Data Law

This contribution to the Proceedings of the Annual Meeting of the American Society of International Law (ASIL) reflects on discussions at ASIL’s virtual annual meeting in 2021, where the author chaired a panel titled “The Rise of Restrictions on Data Flows and Digital Technologies: National, Security, Human Rights, or Geo-Economics?”. Transnational access, transfer, and use of data have increasingly become focal points during negotiations for “comprehensive” trade and investment agreements. While these efforts are often presented and discussed as negotiations about “electronic commerce” and “digital trade” that will “modernize” the acquis of international economic law, we are arguably witnessing the design of new international economic data law that is conceptually distinct from conventional international trade and investment law. The design of this new international economic data law reflects a complex political economy.

Governing Data Markets in China: From Competition Litigation and Government Regulation to Legislative Ordering

Data, the most valuable commodity of our age, fuels today’s digital economy. Who owns these data and the rights associated therewith is now an inescapable question and a central concern. Under the current societal backdrop of powerful internet platforms able to wield the increasingly important economic role of data for their own advantage, current legislative frameworks have failed to keep pace with technological progress.

There is of yet no comprehensive nor global legal framework of data property rights. In the People’s Republic of China (“PRC”), as in many other jurisdictions, domestic data ownership law remains unsettled. In this uncertain legal milieu, Chinese platform companies wage intense legal battles with each other and, in rare cases, with their service suppliers over control of user data. Paradoxically, China’s digital economy has boomed without the clear specification of data ownership. How has China managed the massive growth of its data markets and inter-company data disputes without any legal determinations as to who owns data?

This Article finds that the basic rules of Chinese data markets have developed through litigation between private companies under the precepts of anti-unfair competition law, by government mediation in high-profile cases between market-making entities, and by-means-of government regulation using existing and new legal and policy frameworks, including anti-monopoly law and other data-specific government policies on antitrust and cybersecurity. In addition, the Chinese central and local governments have enacted general legislation on key data issues and are refining their policy efforts via experimental pilot projects in various locales to further develop data markets.

The case studies in this Article reveal the present condition and the limitations of a legal regime in which the reality of data monetization precedes the legal issues of “ownership,” and illustrate the efforts taken by the Chinese government thus far. However, in its analysis of the Shenzhen legislative experiment, this Article offers a cautionary perspective on those reform efforts in the absence of a new comprehensive legal framework, by spotlighting the controversy within the Chinese academic and legal communities over issues of how ownership rights granted prematurely can introduce new challenges to the emerging questions of competition, innovation, knowledge, transparency, accountability, privacy, and the broader public interest.

Incremental development and experimentation, in the form of judicial rulings by the Chinese courts and state regulatory guidance as well as legislative actions that influence the evolution of existing law based on established principles of antitrust enforcement, IP regimes, and contracts, is a promising path to allay the concerns of premature legislation on data property rights—as any new legislation that upholds the status quo could run the risk of stifling both market innovation and competition.

Published in the George Mason International Law Journal, Vol. 13, Issue 1, pp. 1-27 (2022). The paper originated in Guarini Global Law & Tech’s Global Data Law course.

Infrastructural Control Does the Trick: Apple’s Privacy Battles with Facebook and Tencent

Jingxian Zeng presents a comparison of Apple’s battles with Facebook and Tencent over advertising data tracking to argue that current notions of privacy law rest on the misconception that the power of digital platforms is derived from their control over data, rather than their control over the infrastructure that collects and processes data. The article targets the assumption behind the mobilization of data protection and privacy to contest platform power: the enormous power of platforms derives from their control over data such that granting individuals rights to their own data is enough to contest platform power. This approach ignores a fundamental source of platform power—control over the digital infrastructure that enables the collection and processing of data. Failing to account for this aspect of platform power runs the risk that data protection and privacy will be mobilized by platforms to safeguard their “walled gardens,” thus running against the “public” expectation of empowering individuals vis-à-vis platforms. The differing implementation of Apple’s privacy-preserving policy in the U.S. and China, through Facebook and Tencent respectively, offers a vivid illustration of the significance of infrastructural control.

This paper was published by the NYU Journal of Legislation & Public Policy. It originated in the Guarini Colloquium: Regulating Global Digital Corporations convened by Thomas Streinz and Joseph Weiler in Fall 2022.

The Beijing Effect: China's 'Digital Silk Road' as Transnational Data Governance

China shapes transnational data governance by supplying digital infrastructure to emerging markets. The prevailing explanation for this phenomenon is “digital authoritarianism” by which China exports not only its technology but also its values and governance system to host states. Contrary to the one-size-fits-all digital authoritarianism thesis, this Article theorizes a “Beijing Effect,” a combination of “push” and “pull” factors that explains China’s growing influence in data governance beyond its borders. Governments in emerging economies demand Chinese-built digital infrastructures and emulate China’s approach to data governance in pursuit of “data sovereignty” and digital development. China’s “Digital Silk Road,” a massive effort to build the physical components of digital infrastructure (e.g., fiber-optic cables, antennas, and data centers), to enhance the interoperability of digital ecosystems in such developing states materializes the Beijing Effect. Its main drivers are Chinese technology companies that increasingly provide telecommunication and e-commerce services across the globe. The Beijing Effect contrasts with the “Brussels Effect” whereby companies’ global operations gravitate towards the EU’s regulations. It also deviates from US efforts to shape global data governance through instruments of international economic law. Based on a study of normative documents and empirical fieldwork conducted in a key host state over a four-year period, we explain how the Beijing Effect works in practice and assess its impact on developing countries. We argue that “data sovereignty” is illusory as the Chinese party-state retains varying degrees of control over Chinese enterprises that supply digital infrastructure and urge development of legal infrastructures commensurate with digital development strategies.

Published in New York University Journal of International Law and Politics (JILP), Vol. 54, Issue 1, pp. 1-92.

NYU Law’s US-Asia Law Institute (USALI) published an essay about the paper entitled “Understanding China’s Growing Influence in Global Data Governance: Looking beyond US-China Relations”.

The paper draws on ideas from Guarini Global Law & Tech’s Global Data Law project and the MegaReg and InfraReg projects hosted by the Institute for International Law and Justice.