Zoning Data Flows

This article explores how China is developing a unique location-based data outbound deregulation regime to mitigate the negative effects of its initial security-driven regulations. A major move is repurposing free trade zones with data outbound negative lists. Using an infrastructural-thinking framework, this article examines the evolution of data outbound regulation in China, recent initiatives in the country's free trade zones, and the dynamics between local and central governments. China's data outbound practices are enabled and constrained by its global information and telecommunication (ICT) infrastructural connectivity and domestic distribution. Free trade zones become appealing deregulation testing grounds due to their overlap with critical ICT hub locations and their role as sites for policy experimentation. The ongoing pilot projects, through the interplay of law and infrastructure, present promising potential to channel China's data outbound activities into specific areas, thereby increasing their visibility, making them more amenable to regulation, and fostering both local and national economies.

Published in Tsinghua China Law Review Vol. 16 No. 2 (2024), pp. 191-223. This paper draws insights from Guarini Global Law & Tech’s Global Data Law Project and Institute for International Law and Justice’s Infrastructure as Regulation Project.

Empowering Law in Earth System Models

This blog explores the power relation between law and science in global environmental governance, by resorting to Global Data Law and Infrastructure as Regulation (InfraReg) project at NYU Law. The identification and understanding of global environmental crises has predominantly depended on science, and more recently, data-driven approaches.

Historically, international environmental law has primarily focused on institutional support for environmental science rather than engaging in the substantive processes of its norm creation. However, a paradigm shift is needed. Environmental physical models often form the condition to and/or couple with social system models, directing the creation of climate change scenarios, especially those by the IPCC. These scenarios are widely embraced by governments and corporations with gigantic climate governance impact, while evading scrutiny from international law.

Emerging proposals advocate for examining these processes through the right to science, as enshrined in the ICESCR, and for integrating broader concepts of climate and energy justice. This blog argues that, in addition, an overlooked perspective lies in the inequities of data generation and infrastructure distribution. Given the complexities and chaotic nature of Earth systems, these disparities create profound injustices that cannot be sufficiently addressed through participation and due process reforms. Instead, mobilization of various regimes of international law and institutions is a must.

This piece is part of the American Branch’s first blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Environmental and Energy Law perspective. The blog post builds on insights developed in GGLT’s Planetary Futures project.

China's Interim Measures for the Management of Generative AI Services

On August 15, 2023, the Interim Measures for the Management of Generative AI Services (Measures) – China’s first binding regulation on generative AI – came into force. The Interim Measures were jointly issued by the Cyberspace Administration of China (CAC), along with six other agencies, on July 10, 2023, following a public consultation on an earlier draft of the Measures that concluded in May 2023. 

This blog post is a follow-up to an earlier guest blog post, “Unveiling China’s Generative AI Regulation” published by the Future of Privacy Forum (FPF) on June 23, 2023, that analyzed the earlier draft of the Measures. This post compares the final version of the regulation with the earlier draft version and highlights key provisions.

Notable changes in the final version of the Measures include:

• A shift in institutional dynamics, with the CAC playing a less prominent role;

• Clarification of the Measures’ applicability and scope;

• Introduction of responsibilities for users;

• Introduction of additional responsibilities for providers, such as taking effective measures to improve the quality of training data, signing service agreements with registered users, and promptly addressing illegal content;

• Assignment of responsibilities to government agencies to strengthen the management of generative AI services; and

• Introduction of a transparency requirement for generative AI services, in addition to the existing responsibilities for providers to increase the accuracy and reliability of generated content.

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”.

Attributive Justice in International Law: The Global Law and Infrastructure of Pathogen Genomic Sequence Data-Sharing and Benefit-Sharing

A succession of epidemic diseases among humans in the first decades of the 21st century renewed long-standing controversies about power imbalances and justice in the global production, use, and distribution of scientific data and its benefits. A new area of contention concerns digital genomic sequence data (GSD). The largely-forgotten idea of ‘attributive justice’, articulated by Hugo Grotius (1625), helps make sense of otherwise-disparate demands for GSD justice.

At least two kinds of attributive justice claims are made in relation to GSD. One is for attribution of credit to scientists and others involved in medical services or other procurement of samples—a scientist-focused attributive justice. These claims are mobilized especially in efforts to rectify existing power and resource imbalances in science production, both within national societies and by scientists from developing country. These claims have considerable traction, but not in formal international law.

A second claim relates to demands by developing countries either to control GSD, or at least to receive benefits from commercial use of it when the underlying biological sample originates specifically in their territory. These claims have been pursued in efforts to extend the 2010 Nagoya Protocol. Other existing or pending international treaty regimes embedded in entirely separate institutions also address benefit sharing in relation to oceanic, plant, or human digital sequence sharing, complicating the formation of a coherent or unified set of rules. Contentions about widely used sets of data- governance principles such as Findable, Accessible, Interoperable, and Reus- able (FAIR) data also arise in each treaty regime.

Infrastructural regimes for the sharing of sequences have become major sites for both the scientist-relative and state-relative attributive justice claims. The most widely used platform for access to GSD of all kinds is the International Nucleotide Sequence Database Collaboration (INSDC) (including GenBank). A leading alternative is GISAID, which is similar in being free to use but conditions GSD access and sets requirements for attribution of

scientific credit. While GISAID goes further than INSDC in supporting scientist-relative attributive justice claims, the two infrastructures are broadly similar with regard to state-relative claims for attribution of GSD and benefit-sharing. The infrastructures have recently begun trying to ensure that metadata accompanying each sequence attributes it to samples taken from a particular country, but not that the GSD is systematically linked to its com- mercial outcomes. These infrastructures embed norms and ideologies of their original builders, such as a normative commitment to ‘Open Science’, and the economic and epidemic-security interests of richer OECD countries.

Attributive justice entitlements of particular scientists and states will not leverage universal principles of distributive virus- and vaccine-justice but are reinforcing significant shifts toward orders of respect and recognition in global health research and (slowly) in sequencing infrastructures. The contributions of attributive justice have been underestimated.

Professor Benedict Kingsbury published his article 'Attributive Justice in International Law: The Global Law and Infrastructure of Pathogen Genomic Sequence Data-Sharing and Benefit-Sharing' in the Summer 2023 issue of NYU Journal of International Law and Politics.