Data sharing in search for sovereignty: the case of the European Cloud

The paper ”Data sharing in search for sovereignty: the case of the European Cloud” (Catanzariti, M.) will be presented at the 11th FSR Annual Conference “From Data Spaces to Data Governance” (9-10 June, 2022).

Abstract:

Jurisdictional claims to data underpin two opposing regulatory models. The first claims extraterritorial digital reach. Examples include access to data located abroad by domestic law enforcement, global injunctions and claiming territorial extension of domestic law. The second, often in reaction, relies on data nationalism. Examples include data localization requirements by national governments as well as the establishment of national clouds for various types of data. This paper explores the inherent tensions between the increasing use of extraterritorial claims to data and the opposite response of data nationalism. It challenges the presumed dichotomy of territoriality/extraterritoriality claiming that 1) this apparent dichotomy leads to converging territorial solutions; 2) the territorial overuse undermines the geopolitical and legal order. Both the creation of digital borders by eg imposing local storage or local processing requirements and the expansion of a claim to state power beyond national borders are forms of territorially based control. Based on these assumptions, my hypothesis is that territoriality, when applied to data, needs to be profoundly rethought so that inter-state frictions that alter the geopolitical and legal order can be avoided. This implies moving beyond the territoriality/extraterritoriality dichotomy and using functional factors other than the territorial location of data to connect jurisdiction and data. The study claims that the constant adaptation of physical territories to borderless data creates unpredictable reactions by state actors who exercise jurisdiction and private sector data with the technological capabilities to access, process and store huge amount of data. The more the interaction between multiple actors is subject to jurisdictional changes, the more the traditional dichotomy of territoriality as the rule and extraterritoriality as an exception is incapable of facing the composite regulatory regimes as well as the technological challenges.

Research Design and Expected Results:

The paper aims to reconceptualize territoriality in digital matters by providing a novel functional and theoretical legal framework. It applies this framework 1) by exploring the legal options that replace data localization with establishing an EU data cloud infrastructure as the path towards a model of EU digital sovereignty – an attempt to achieve EU technological autonomy and 2) by examining the implications of ‘de-territorializing’ digital jurisdiction for the regulation of the EU cloud. Based on interoperable adequacy standards that replace data localization requirements, the paper ultimately aims to provide a legal blueprint for the EU cloud. It intends to transcribe in rules the idea that unifying territories through a continuous regulated space of data sharing on the cloud is the best solution to avoid the current deceptive dichotomy territoriality/extraterritoriality. Lack of technological autonomy in the EU – with respect to data storage in cloud – has generated extraterritorial claims over data in reaction to extraterritorial violations of EU rights by third countries. The EU’s lack of technological autonomy has meant a “loss of data” provided that data is stored on foreign clouds. Consequently, the EU has tried to reappropriate territorial shares through different degrees of extraterritorial reach: the enlargement of the territorial scope of application; strengthening the requirements for data transfers to third countries; a defensive approach to standards setting against extraterritorial interferences. The paper argues that the establishment of a European cloud needs to be based on functional criteria rather than on data localization requirements that make the control over data possible through interoperable standards. Thus, it claims for a model of data sharing as an alternative to the binary option territoriality/extraterritoriality, investigating the conditions under which this may be possible.

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