Description of impactDr Selby's research into data localization arose in 2016 from his interests in the intersection between Internet regulation and the regulation of global trade. His first project in that research program was to examine the issue of data localization, which resulted in a scholarly article published in 2017 in the International Journal of Law and Information Technology (ABDC A-rated).
Dr Selby's article analysed the complex intersection between economic and national security interests which have driven policy debates over whether personal information should be permitted to be transferred freely across national borders (advantaging wealthier countries, such as the USA), or limited to better protect privacy, domestic business and national security interests in less-developed and developing countries. He analysed reasons for different policy responses to this issue within the BRICs (Brazil, Russia, India and China) and the reasons behind the US' strong opposition to data localization requirements.
Dr Selby's research on data localization has been widely cited by scholars and has had significant impact on public policy debates at the highest levels in India and the USA.
After the Puttaswamy decision in 2017 by the Indian Supreme Court recognised the existence of a constitutional right to privacy in that country, the Indian government commissioned the Srikrishna Committee of experts to review approaches to privacy regulation worldwide and to design a new Privacy Law for India.
The Srikrishna Committee's report cited Dr Selby's data localization research and, in accordance with his analysis, recommended that India include a data localization requirement within its new Privacy Law. The report stated "... One of India's key interests with regard to personal data which is critical to India's national security interests and imperative for the smooth running of the wheels of the Indian economy is the prevention of foreign surveillance. It has been argued by some scholars that requirements of storing data within territorial borders may be useful in boosting data security by safeguarding the privacy and security of personal informatoin against non-governmental actors... for the prevention of foreign surveillance critical personal data should be exclusively processed within the territory of India" (p92-93).
Sections 40 and 41 of the Personal Data Protection Bill presented to the Indian Parliament in 2018 contained provisions which require data localization to be implemented in India so as to increase the privacy protections for its more than 1 Billion citizens.
In accordance with Dr Selby's analysis, the US Government responded to this challenge to its advantageous position and sought to preserve its comparative advantage for both its business sector and its intelligence agencies by lobbying the Indian government to remove sections 40 and 41 from the Indian Personal Data Protection Bill. This was evidenced by Reuters news article detailing an October 2018 letter to Indian Prime Minister Modi sent by US Senators John Cornyn and Mark Warner urged India to "adopt a light tough regulatory framework that would allow data to flow freely across borders... we see this (data localization) as a fundamental issue to the further development of digital trade and one that is crucial to our economic partnership." Interestingly, those two Senators are members of the Senate "India Caucus" and members of the Senate Intelligence Committee (which has oversight over the US electronic signals intelligence gathering capability within the National Security Agency). These actions were covered in an article published in the New York Times on 15 October 2018. Even major US technology company leaders, such as Jack Dorsey (CEO of Twitter) discussed data localization issues during their visits to India.
In 2019, the US government sought to further increase its diplomatic pressure on the Indian government when it threatened to cap H-1B visas for Indian workers unless data localization requirements were removed from its Personal Data Protection Bill. The US Federal Trade Representative identified India's Data Localization requirements as one of the "Key Barriers to Digital Trade" in the world.
During the 2019 G20 Leaders Special Event in Osaka Japan, US President Donald Trump raised this policy debate with world leaders when he stated in his public remarks: "...the United States opposes data localization and policies, which have been used to restrict digital trade flows...". In response to this pressure, the Indian Prime Minister Modi refused to sign the G20 leaders "Osaka Declaration on the Digital Economy" due to its prohibitions on data localisation.
|Impact date||2017 → 2019|
|Category of impact||Policy impacts, Society impacts|