Harvard Journal of Law & Technology
International efforts to define fair information practices for global networks derive from two distinct paradigms. Traditionally, regulatory standards have been cast in trade terms. The trade perspective seeks to promote free flows of information and define standards that balance free flows against human rights values. Fair information practices also draw on another rarely emphasized technical paradigm. This approach seeks to eliminate any technological obstacles to free flows of information by defining standards for system integrity and interoperability. Nevertheless, these technical standards are set in ways that also define fair information practices. While each paradigm provides a basis to establish rules for global electronic highways, the two are surprisingly self-contained and tend not to fit within the broader trends in global information networks and practices. Instead of facilitating the definition of fair information practice standards, the distinct trade and technical perspectives obscure the tendency of global networks to shift norms for the regulation of private sector actors into a combined arena of both national and network jurisdiction. Global information networks challenge regulatory and political assumptions and defy simple regulation of fair information practice. These independent approaches to the establishment of fair information practice rules suggest that international data flows require complex standards, including overlapping regulation, rather than isolated one-dimensional rules.
Joel R. Reidenberg,
Rules of the Road for Global Electronic Highways: Merging the Trade and Technical Paradigms, 6 Harv. J. L. & Tech. 287
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/35