Data Localization Laws and Policy
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Data Localization Laws and Policy

The EU Data Protection International Transfers Restriction Through a Cloud Computing Lens

W. Kuan Hon

Countries are increasingly introducing data localization laws, threatening digital globalization and inhibiting cloud computing adoption despite its acknowledged benefits. This multi-disciplinary book analyzes the EU restriction (including the Privacy Shield and General Data Protection Regulation) through a cloud computing lens, covering historical objectives and practical problems, showing why the focus should move from physical data location to effective jurisdiction over those controlling access to intelligible data, and control of access to data through security.
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Chapter 4: Assumptions

The EU Data Protection International Transfers Restriction Through a Cloud Computing Lens

W. Kuan Hon

Abstract

• Unspoken assumptions underlying policies driving data export restrictions and the Directive’s approach to transfers, dating from the 1970s, leading to its lack of technology-neutrality, which the GDPR perpetuates. • Assumptions regarding how controllers use processors: ‘computer service bureaux’, cf. cloud’s direct self-service. • Assumptions behind the Restriction: • data location (mainframe model vs modern Internet/cloud realities), • access (physical possession vs intelligible access including encryption, remote access, simultaneous access; data location as only one factor among others), • countries’ jurisdiction (data location vs effective jurisdiction and modern supply chains’ multi-intermediation and multiple locations), • who can protect data (power/responsibility of countries to protect data adequately, and controllers’ risk assessments). Keywords: Internet, technology-neutrality, data location, cyberspace, jurisdiction, cloud computing

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