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 8: Summary and recommendations

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

W. Kuan Hon

Abstract

• The Restriction’s legislative aim: prevent controllers from circumventing data protection principles by moving personal data outside the EU. • ‘Transfer’, jurisdiction, regulators’ data location fixation and data localization. • Mismatch between the Restriction’s assumptions and modern realities. • Allowing transfers, particularly to processors. Problems with mechanisms and onward transfers; the GDPR’s deprecation of technological protections like encryption. • Problems enforcing the Restriction. • Focus on access and security instead, to achieve the Restriction’s aims better. • Policy recommendations: abolish data localization restrictions. Otherwise, define ‘transfer’ by reference to recipients and jurisdiction; distinguish ‘transmissions’ (intelligible access); extend E-Commerce Directive defences to intermediaries without intelligible access; define and exclude ‘transit’; encourage risk-based self-assessment; continue ‘block’ mechanisms (valid, absent contrary evidence); incentivize technical protections equally with legal protections; promote third party expert certifications; seek international agreement to resolve conflicting jurisdictions and state surveillance’s limits/oversight, meanwhile increasing international regulatory cooperation on privacy. Keywords: policy, data localization, data sovereignty, jurisdiction, international transfers, cloud computing

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