Should American companies—the National Basketball Association (NBA), Apple, Facebook—be doing business in China? Many people appear to have strong feelings about this question, particularly after a series of controversies have erupted in the past two weeks.
Andrew Keane Woods is a Professor of Law at the University of Arizona College of Law. Before that, he was a postdoctoral cybersecurity fellow at Stanford University. He holds a J.D. from Harvard Law School and a Ph.D. in Politics from the University of Cambridge, where he was a Gates Scholar.
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It’s been a busy two weeks for the Court of Justice of the European Union (CJEU). Last week, the court handed down a landmark decision in favor of Google; this Thursday, Oct. 3, it released a blockbuster ruling against Facebook.
Europe’s highest court issued two huge rulings on Sept. 25 regarding the implementation of the EU’s “Right to Be Forgotten.” Both decisions involve a long-standing dispute between Google and France’s data authority, the Commission Nationale de l’Informatique et des Libertés (CNIL); both have considerable implications for the cross-border regulation of the internet.
If the first round of debates over internet governance focused on whether the internet can be governed, today’s debates are about which states will regulate the internet, how and where. China famously manages a walled garden; Europe has built an extremely robust privacy regime (read: mandated data localization) and seeks to apply its laws extraterritorially; the U.S. has a self-professed “open internet” policy but a series of outdated rules encumber different aspects of U.S. internet firm operations.
Technology firms are extraordinarily powerful. They control vast sums of money. They serve unprecedentedly large customer bases—in some instances, larger customer bases than any nation on earth (Facebook now has over 2 billion users).
At this particular moment, it is more than reasonable to wonder whether constitutional rights and human rights matter. Fortunately, a large number of legal scholars and political scientists have attempted to answer this question. Unfortunately, they have been using the wrong tools.