Johns, Fleur --- "The Deluge" [2014] UNSWLRS 20

Last Updated: 21 May 2014

The deluge

Fleur Johns^[∗]

Citation

This is a pre-copyedited, author-produced copy of an article accepted for publication in the London Review of International Law following peer review. The definitive publisher-authenticated version, Fluer Johns, ‘The deluge’ London Review of International Law 2013 1:9-34, is available online at: http://lril.oxfordjournals.org/cgi/reprint/lrt002?ijkey=ry ga4oGx8VeCyFk&keytype=ref.This copy may also be referenced as [2014] UNSWLRS 20.

Abstract

Glee and despair accompany the advent of ‘big data’— that is, the accumulation of vast digital datasets and enhanced capacities for their use. In light of new global development opportunities identified with this deluge, the article lays groundwork for a critical conversation about big data within public international law scholarship.

I. Introduction

Scarcity is a critical adjuvant for international legal thought. Scarcity of water, diminishing forests, depleted natural resources; these are conditions about which international lawyers often worry. Yet abundance and proliferation are also sources of concern for international law. Mounting waste, rising obesity rates, the multiplying agendas of terrorist cells, an ever-mutating array of pathogens; a sense of ‘too much’ triggers as much global anxiety as ‘not enough’.

Among the dimensions of excess by which the globe is said to be afflicted is a ‘data deluge’ being experienced globally. According to a May 2012 United Nations (UN) report, the world’s stock of digital data is expected to increase forty-four times between 2007 and 2020, doubling every twenty months.^[1] A new order of measurement has been coined to cope: the term zettabytes was introduced in 2010.^[2] This inundation is often greeted with awe. In scale and inevitability, it smacks of the sublime. Big data is said to define our age, even as it frequently exceeds our grasp.^[3]

Data can be ‘big’ in a number of ways; in conceptual terms, in volume, in complexity. The term ‘big data’ alludes to the amassing and analysis of vast amounts of recombinable digital information that eludes corralling for a variety reasons.^[4] The ‘global data economy’, with which big data is often associated, is sometimes framed as an ‘economy of goods and ideas . . . that trades in personal information’ with consumer-monitoring, advertising and Internet-based transacting comprising its ‘backbone’.^[5] Elsewhere, the global data economy appears as a comprehensively reconfigured and recharged version of the pre-existing global economy, whereby processing and manufacturing times are reduced, performance analysis capacity intensified, product and service-customisation increased, decision-making optimised, and ‘entirely new business models’ invented thanks to the harnessing of big data.^[6] Visions of economic yield surrounding big data have a significant financial dimension as well. Imagining augmented databases, data sets or data analysis capacities as income-yielding assets raises the prospect of their financing and securitisation generating value, independently of any other business innovations with which they might be associated.^[7]

At the forefront of the worries by which the term ‘big data’ is often accompanied is a sense that ‘stewardship’ is lacking in the assembly, storage, management, analysis, distribution, business or developmental deployment and monetisation of data.^[8] Particular concerns surround accumulations and transfers of personal data, that is, data traceable to and about a natural person. Along silent data streams all around us—being channelled, pooled, commodified, corrupted, diverted, erased—human freedom and agency are draining away, or so it is often supposed.

Uneasiness abounds: surely someone, somewhere, in all this, needs to have a hand—or a coordinated group of hands—on some tiller? An invisible hand would suffice for some, but invocations of the market don’t always reassure.^[9] ‘The challenges are great, and will only be solved by focused effort and collaboration’, wrote Clifford Lynch, executive director of the Coalition for Networked Information, in Nature a few years ago. ‘As the volume of data, and the need to manage it grows, disciplinary consensus [and] leadership will be very powerful factors in addressing [those] challenges’, Lynch continued. Then again, ‘necessary community standards are lacking’, Lynch acknowledged.^[10] On what, then, might ‘disciplinary consensus’ rest? Indeed, which discipline or disciplines and which leader or leaders are, or should be, in play?

Breathiness, glee and hope are, at the same time, plentiful in the proximity of the term ‘big data’. The unprecedented global ‘data flood’ is life-giving and value-generating in many accounts.^[11] Personal data flows are said to yield ‘the new “oil”’ for the twenty-first century and big data ‘a new asset class touching all aspects of society’, according to the influential World Economic Forum (WEF).^[12] The WEF has identified a ‘new wave of opportunity for economic and societal value creation’ with the vast masses of digital data being created by and about people the world over. This value-creation opportunity demands, according to the WEF, ‘a new way of thinking about individuals’. It also demands global legal reform. ‘Unlocking the full potential of data’ would, the WEF has argued, require redress of the ‘lack of global legal interoperability’ and resolution of ‘points of tension’ around privacy, ownership, transparency and value distribution.^[13]

Development opportunities potentially associated with big data engender particular excitement. ‘At any one point in time and space’, the UN has observed, ‘such data may . . . provid[e] an opportunity to figuratively take the pulse of communities’, a possibility that is ‘immensely consequential for society, perhaps especially for developing countries’.^[14] Households in developing countries might, the UN has speculated, leverage real-time digital data to improve their access to food, tailor energy use, gain better access to micro-credit or other financial support, access health advice, and contribute to early warning mechanisms and social movements while benefiting from the same.^[15] A growing community of ‘mobile money intellectuals’ has highlighted the potential that mobile telephone infrastructure and associated data streams may hold for better integrating and servicing the poor in global financial services markets.^[16] Yet, social scientists working on these developments have also warned against their unreserved celebration, cautioning that ‘[t]he failure to link technological questions to normative political questions [and, I would add, legal questions] can lead to undesirable outcomes’.^[17]

On the whole, policy speculations about the burgeoning data economy and related global development opportunities seem largely dominated by ‘big-push logic’—a logic that has met with circumspection in development economics over the past decade. That logic ‘stresses that poor economies need some sort of large demand expansion, to expand the size of the market, so that entrepreneurs will find it profitable to incur the fixed costs of industrialization’ (or post-industrial infrastructure improvement) and suggests that ‘anything that stimulates demand will do’, including resource discovery. Critics of this logic have observed that natural resource booms are sometimes accompanied by declining per-capita GDP.^[18]

Public international law has had much to say, for a long time, about the ‘big push’ of natural resource discovery and the struggles and responsibilities to which it may give rise. International law has been a key battleground for claim-making and norm-making in such contexts.^[19] If data are, indeed, the ‘resources’ likely to fuel much twenty-first century development,^[20] then one might expect data’s mining and monetisation—amid developing countries’ growing numbers of consumers especially—to elicit a new set of stakeholder claims, conflicts and challenges to which international law should already be attuned. One might anticipate, for example, the emergence of something akin to the doctrine of permanent sovereignty over natural resources put forward by Third World states in the context of the commodities boom of the 1970s.^[21] Data-oriented, collective claims have been advanced in debates surrounding access to vaccines, expressed as assertions of ‘viral sovereignty’ over a national population’s genetic data.^[22] Yet, no comparable claims appear to have yet been formulated or anticipated in relation to the economic developments identified with big data. Online protest about individuals’ treatment as commodities rather than consumers, and generic scholarly recognition of a ‘digital divide’: this seems more or less the extent of collective global ‘speaking back’ to the WEF’s sweeping, big data-centred vision and it’s like.^[23]

Before being carried away too readily by the WEF’s ‘new wave of opportunity’, this article would have readers pause. The goal of this article is to initiate and lay some groundwork for a conversation about big data within public international law scholarship. Such a public international law conversation is never likely to cover the field—or rather intersecting fields—engaged by the theme of big data.^[24] Nonetheless, if media historian Lisa Gitelman is right that ‘every discipline . . . has its own norms and standards for the imagination of data’, then nascent orthodoxies may already be at work in global law and policy surrounding personal data that are helping to structure and shape the emergent global data economy, and might yet do so further.^[25] If so, then the ‘models of intelligibility’ surrounding data and the person that global policy-making is bringing to bear merit elucidation and critique.^[26] What are these models’ lawful dimensions and what could be their potential ramifications for public international law? What questions and difficulties might a WEF-evoked vision of ‘global legal interoperability’ towards enhanced data flow pose for public international lawyers? This article does not purport to answer these questions but rather to raise them (and some related questions), to highlight what may be at stake in addressing them, and to propose an agenda for their collaborative pursuit. In short, it contends that there is much more at issue in the governance of the emerging global data economy than technical interface between existing legal systems and well-aired privacy concerns.

The first part of this article sets out some emergent orthodoxies by which much of the international legal and policy literature concerning the global data economy appears marked. In each case, it offers some grounds for calling those orthodoxies into question. The second part of this article identifies some questions that developments in the global data economy call upon public international lawyers to address in broad-ranging, counter-disciplinary collaboration.^[27]

II. Some would-be orthodoxies of the global data economy

Just as the global data economy rests on a complex, global technological infrastructure, so our grasp of, and interaction with, that economy depends on a diffuse, yet patterned intellectual infrastructure. Both exhibit nodal and switching points of various kinds. Among this economy’s intellectual underpinnings are certain emergent orthodoxies upon which much legal and policy-making literature appears to settle, often without explicit argument in their defence. Three of these orthodoxies concern circulation, transparency and privacy.

The value of circulation

That circulation is integral to the capitalist economy (of which the global data economy is a particular elaboration)^[28] is not an idea attributable to international legal scholarship or policy-making. The role of circulation in enabling the social realisation of value—and value’s expression in the commodity form—was perhaps most famously described by Karl Marx, in the nineteenth century, in Volumes I and III of Capital.^[29] Anthropologists later elucidated the contingency of circulation pathways within the ‘life histories’ of commodities and commoditisation, as well as associated ‘distributions of knowledge’.^[30] Holding one’s attention upon particular ‘cultures of circulation’, rather than preoccupying oneself with the things in circulation, reveals much about the communities and knowledge that those cultures presuppose and help to generate, anthropologists have shown.^[31]

In the context of writing about the global data economy—international legal and policy-making writing in particular—one recurrent feature of the operative culture of circulation is the sense of necessity and value with which circulation itself is invested. This investment seems additional to, and somewhat independent of, the value or value-generating effects of things circulated in any specific instance.^[32] Flow or movement—data movement, primarily, in this context—is treated, as a matter of reflex, as something to be encouraged. Conversely, blockages, bottle-necks and build-ups tend to be identified with dysfunction, tension and loss.

Consider, by way of illustration, the following remarks from a 2012 WEF report:

Just as tradable assets like water and oil must flow to create value, so too must data. Instead of closing the taps or capping the wells, all actors can ensure that data flows in a measured way. But for data to flow well, it requires the same kinds of rules and frameworks that exist for other asset classes.^[33]

The implication of these sentences is that trade will create value, but emphasis is placed on the natural vitality of circulatory ‘flow’—albeit ‘measured’ or rule-facilitated flow—rather than on mercantile exchange as such. Flow is given a positive inflection, while circulatory obstruction has a presumptively negative cast. Thus, the WEF report goes on to caution that ‘[p]olicy-makers and regulators should avoid the pressure to put forward one-size-fits-all solutions that may unintentionally lock down the flow of data’.^[3] Somewhat less strident, but nonetheless insistent, is the European Data Protection Directive, which calls for ‘remov[al] [of] the obstacles to flows of personal data’ and efforts ‘to ensure that the cross-border flow of personal data is regulated in a consistent manner’.^[35] The UN exhibits a similar set of instincts in the following observations, drawn from a May 2012 report:

Slowly, governments the world over are realising the power of Big Data. Some choose conservative paths for managing the data deluge, involving crackdowns and strict controls (which will likely prove unsustainable), while others will devise institutional frameworks and support innovative initiatives, such as open data movements, that will help leverage its power for the common good.^[36]

That the ‘common good’ is best served by relatively smooth, unobstructed flow—open data movements, trade-favourable regulation and the like—is taken as a given in both these reports without any specification of the ‘common[s]’ or commonality in question. Yet we know from broader literature that the beneficial impact of free trade agreements, for example, is a matter of intense debate and that positive effects from such measures cannot be predicted without regard to many other factors.^[37] Also well-documented are the negative impacts of unregulated global capital flows, and associated speculation, of which data flow (automated data analysis and algorithmic trading, for instance) comprises an important dimension.^[38] Macro-economists’ sense of circulation fuelling economic activity and growth nonetheless seems to have seeped outwards, across disciplines and professions, leaving an expansive thought-stain.^[39] Now pervasive, in commentary on big data, is a sense of the necessity of promoting continuous circulation, including as a criterion for effective regulation. What is worthy of question here is why international policy-making should maintain an inclination favouring flow as such, without precise justifications for doing so.

The exhaustion of transparency

The bias in favour of circulatory flow evident in international policy-making concerning the global data economy might, in part, be explained by reference to a further orthodoxy evident in this field: that surrounding transparency. Transparency in global affairs is often taken to imply that ‘information should be widely and equally held’ and that people, especially when exercising power over others, should ‘conduct their affairs openly, honestly, and according to reasonable rules’.^[4] Among the benefits with which it is identified is ‘a closer bond between the public and their leaders’, or increased legitimacy for government decision-making.^[41] Some accounts also associate transparency with better quality decisions by those wielding public and private power, either through the mitigation of corrupt behaviour or the facilitation of constructive public engagement with processes of decision.^[42] Transparency is often understood to imply relative accessibility and usability.^[43] Transparency is also linked to the integrity and predictability of markets.^[44]

Transparency is regularly invoked in legal and policy texts concerned with the global data economy. Consider, for example, the following extract from a 2010 strategy document released by the European Commission, explaining plans for the reform of data protection regulation within the European Union:

Transparency is a fundamental condition for enabling individuals to exercise control over their own data and to ensure effective protection of personal data. It is therefore essential that individuals are well and clearly informed, in a transparent way, by data controllers about how and by whom their data are collected and processed, for what reasons, for how long and what their rights are if they want to access, rectify or delete their data . . . . Basic elements of transparency are the requirements that the information must be easily accessible and easy to understand, and that clear and plain language is used. This is particularly relevant in the online environment, where quite often privacy notices are unclear, difficult to access, non-transparent and not always in full compliance with existing rules. A case where this might be so is online behavioural advertising, where both the proliferation of actors involved in the provision of behavioural advertising and the technological complexity of the practice make it difficult for an individual to know and understand if personal data are being collected, by whom, and for what purpose.^[45]

Even in this affirmation of transparency, however, one may discern a feature of the notion as it appears in legal and policy literature concerning the global data economy. That recurrent feature is a sense of the idea already having been exhausted, negated or outstripped by the context in which it is deployed.^[46] Note the emphasis placed in this paragraph upon ‘difficult[y] [of] access’, the ‘proliferation of actors’, ‘technological complexity’ and ‘difficult[y] . . . of understand[ing]’. Similarly, in its 2013 paper, Empowering and Protecting Consumers in the Internet Economy, the OECD devoted virtually the entirety of a section headed ‘Transparency, clarity, completeness, and timeliness of information disclosure’ to discussion of the challenges consumers face in making use of information that is technically available to them concerning Internet- and mobile-phone-mediated transactions.^[47]

Evident in these contexts—and elsewhere in legal and policy commentary on the global data economy—is a powerful undertow of anxiety that, as Jodi Dean puts it, ‘a politics of concealment and disclosure may well be inadequate’. ‘Many of us’, Dean suggests, ‘are overwhelmed and undermined by an all-pervasive uncertainty’ amidst ‘seemingly bottomless vats of information’. ‘Having it all’, Dean continues, ‘bringing every relevant and available fact into the conversation . . . may well entangle us in a clouded, occluded nightmare of obfuscation’.^[48] This is not a new insight. The work of Stanley Deetz on organisational and workplace communication, for example, has long shown that access to information is not itself empowering: ‘The primary origin of power is not with [those] who possess information, but in the system of meaning which constitutes information’.^[49] Even if one is circumspect about Deetz’s vesting of ‘primary origin[s]’ in both ‘system’ and ‘meaning’ (as opposed to systems of value, dynamics of meaninglessness, or non-systemic configurations of power, for example), the points regarding transparency’s over-reach—and popular appreciation of this failing—still hold.

The prevailing insistence on transparency in policy-making concerning the digital economy is not, it seems, designed to deliver on its promise of empowerment. The continued appeal of transparency might, then, be attributable to factors other than any sure prospect of effectiveness in these terms. One may, for instance, discern certain ideological functions being performed by transparency’s invocation in legal and policy literature.^[50]

The argument for transparency serves, on occasions, as a proxy for de-regulation. The OECD has contended, for example, that ‘[t]ransparency rules may be considered an element of a comprehensive package of user empowerment or protective regulation, or as a substitute to express regulatory mandates’.^[5] Further, as Jodi Dean has highlighted, the rhetoric of transparency helps to configure the information-saturated digital universe as a ‘consensual space’ fostering ‘enactments of a demos’ (experiences of disorientation, inequity and isolation notwithstanding).^[52] Invocations of transparency encourage us, Dean observes, to ‘“go through the motions” despite what we know’, enrolling us in both the ‘encod[ing] [of] democratic practice and market[ing] [of] global technoculture’.^[53] The already-exhausted form in which transparency commonly appears in global policy literature concerning big data (as well as in popular literature on the same theme) also has the effect of orienting debate around correction or accommodation of transparency’s failures, rather than around the merits and demerits of insisting upon the centrality and necessity of that aspiration in the first place.^[54] For these reasons, as well as the ambivalence and anxiety that often accompany its championing, the orthodoxy that transparency-promotion remains a crucial criterion for regulation and policy concerning the global data economy warrants questioning.

The persistence of privacy

A somewhat paradoxical complement to the worry about being overwhelmed or blinded by data (highlighted above) is an impetus towards sequestration. This impetus is evident in the predominance of privacy in legal and policy literature concerning the global data economy. More than twenty years ago, Kendall Thomas dubbed privacy a ‘prisonhouse’. ‘[T]he privacy paradigm’, Thomas wrote, ‘lacks the analytical instruments for grasping the substantive, material core’ of harm wrought by sodomy proscriptions. ‘[F]or gay men and lesbians, privacy has always represented privation’; ‘privacy is the ideological substrate of the very secrecy that has forced gay men and lesbians to remain hidden and underground, and thus rendered them vulnerable to private homophobic violence’.^[55]

Thomas was right, it turns out, not to ‘harbor . . . illusions that the theoretical argument [he] elaborated . . . [would] find doctrinal expression in . . . constitutional jurisprudence’, let alone across law and policy more generally.^[56] The cogency of Thomas’ argument notwithstanding, privacy is a prisonhouse that most people engaged in policy debate surrounding the global data economy continue to inhabit.^[57] Among legal scholars so engaged in particular, attention has overwhelmingly centred on data protection and individual privacy.^[58] That is, a primary area of focus has been upon the global expression of legal rights of individual data subjects in relation to data about them that is potentially identifiable as such.^[59] A second, closely related area of public international law focus with respect to personal data has been surveillance and law enforcement, in the counter-terrorism context especially.^[60] In both these contexts, international and regional human rights law norms concerning freedom of expression, freedom of information, individual self-determination and intangible property rights are also frequently invoked, alongside new formulations of rights, such as a ‘right’ to forget or be forgotten.^[61] The comparative study of contract law and intellectual property law, and international trade law relating to intellectual property rights, have also been important, parallel fields of analysis and debate.^[62] Nonetheless, in most if not all of these areas of inquiry, individualised privacy considerations remain paramount. Even scholars observing greater emphasis being placed on the narrower concept of data protection, rather than privacy, in many nations’ recent regulatory practice have taken individual privacy as a primary reference point in evaluating these developments.^[63]

Apparent within this scholarly preoccupation with privacy is an ontological claim comparable to that with which Thomas took issue when discussing sodomy statute-litigation and homophobic violence. In each context, certain understandings of personhood must be accepted for the reasoning to impel. ‘The force for the case for privacy very much depends on the strength of its substantive conception of the individuals who are its origin and end . . . its curiously disembodied understanding of the living subject of privacy rights’, Thomas wrote. ‘The “personhood” privileged in privacy analysis’, Thomas continued, ‘relies too heavily on an abstract image of the human subject as a moral self’.^[64]

Privacy-oriented claims in the personal data context likewise draw much of their cogency from a particular conception of individual subjectivity, or rather a set of particular conceptions. The privacy-asserting person of much legal scholarship and policy writing concerning big data is both a consumer and a producer. She is someone who can, ‘[f]or less than $600, . . . purchase a disk drive with the capacity to store all of the world’s music’ and is otherwise routinely engaged in ‘buying a wide range of products and services’. She is someone inclined and enabled to ‘generate, communicate, share, and access data . . . [via] digital networks’. She is both an actual or potential agent of innovation—including innovation in relation to her own subjectivity—and a ‘direct and indirect beneficiar[y] of big-data-related innovation’.^[65] She is by nature a chooser, enlivened by experiences identified with ‘real choice’, ‘freely’ made and ‘voluntary’.^[66]

In the legal regulation of personal data flows, however, problems surrounding privacy-endowed personhood arise not so much from the abstract or disembodied character of that personhood (as in Thomas’ critique) as from the unstable, ambivalent form of its expression. Even as the person sketched above is conceived in the relevant literature as an active participant in her own disaggregation into widely dispersed data-points—into, for instance, a composite, saleable ‘Database of Intentions’^[67]—that person is still imagined to be to the bearer of a determinative and coherent will, including (necessarily) a will to privacy.^[68] Texts concerning personal data and privacy tend to enshrine an integrated, wilful, relatively self-contained personhood even as they sketch a technological and communicative context in which that personhood is but a contingent assemblage of strewn bits.

Thomas noted a devastating mismatch between, on one hand, the material bodies exposed to homophobic violence and engaged with its mortal politics and, on the other, the relatively peaceable domain occupied by the presumptively secure moral beings of privacy law.^[69] In the law and policy concerning privacy in the global data economy, the salient mismatch is somewhat comparable, but of a different kind. It is between a geographically located, embodied, self-determining individual and the scattered record of her ‘private’ will, amenable to widely different recombinations—both benign and malignant—at her initiative, or at the initiative of others. Legal and policy scholarship concerning the global data economy entertains both modes of personhood, but directs protective and remedial efforts overwhelmingly towards the former, largely ignoring anomalies that arise from its co-existence with the latter.

Consider, by way of illustration, the emphasis placed upon data controllers and processors securing the consent of the ‘data subject’ in both the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data and the European Data Protection Directive.^[70] Reliance is placed, in these contexts, on an individual making meaningful and durable choices regarding personal data-processing and -sharing, operating in a switch-like, opt-in or opt-out mode. At the same time, these guidelines contemplate subjects continuously feeding data into a wide range of processing channels, public and private, such that digital expressions of any ‘identifiable natural person’—and such person’s will—are likely to be multiple and often incoherent. In many instances, in light of this diffuse expression of subjectivities, singular choices to give or withhold consent to particular data uses are unlikely to be determinative. In social networks with mixed public and private user profiles, for example, data mining algorithms render it ‘surprisingly easy to infer private information from group membership data’, irrespective of the choices an individual has made in privacy settings.^[71] In other words, the uneasy coexistence between a single-origin, self-directing personhood and a diffuse, publicly-realised personhood ensures that legal promises made to the former may ‘surprisingly eas[ily]’ be frustrated by reference to the latter. As Omar Tene concedes, ‘[p]rivacy policies . . . cannot be relied upon to protect users’ privacy’. ‘Having exhausted technological and contractual privacy protections’, Tene continues, ‘the fall back for users is the constitutional and statutory scheme provided by the state. Users are bound to be disappointed, as current doctrine is ill-suited to protect their interests’.^[72]

Another shortcoming of this privacy preoccupation is its framing of conflict within the global data economy in profoundly unequal and defeatist terms. Privacy sets the individual personal data subject against an ever-shifting array of known and unknown counterparties or threats, both human and non-human. Collective agency tends to be identified with criminal or corporate privacy-encroachers, while the privacy-asserting data subject is encouraged to fend for herself alone, in doomed isolation. The idea that international legal regard for individual privacy—or a narrower right to protection of personal data—might suffice to attend to even a significant proportion of the forms of harm, conflict, domination, and grievance that ‘flesh-and-blood bodies’ are likely to experience in the global data economy seems chimerical, to say the least.^[73] As Tene highlighted, the notion of privacy seems ill-equipped to render or address actual and potential tribulations of people engaged in the global data economy, despite its dominance in this policy setting. The next part of this article will explore something of what those tribulations may be.

III. Some questions for international law and lawyers

Up to this point, three questions have already been flagged for consideration by, among others, public international lawyers grappling with the global data deluge. Should it be so readily presumed that continuous flow—data flow, for instance—is globally beneficial, and stoppage of that flow routinely suspicious? Should international lawyers continue to mouth the rhetoric of (exhausted) transparency when it seems to offer so little hope, capacity or guidance to the data-saturated? Might it be time to re-think our preoccupation with privacy and associated icons, such as the consenting data subject?

In connection with such re-thinking, international lawyers must attend to a number of other questions that arise in and from developments in the global data economy. Some of these questions revolve around value, claims and norms.

How is value distributed across the global data economy, or likely to be?

The speculations of the WEF cited early in this article are illustrative of the hand-rubbing economic expectation that often surrounds big data. The inside-cover of a May 2011 report by the research arm of the consulting firm McKinsey & Company announces, in large font, ‘a growing torrent’ of big data, followed by a dizzying series of boldface figures, among them: ‘$300 billion potential annual value to US health care—more than double the total annual health care spending in Spain’; ‘€250 billion potential annual value to Europe’s public sector administration—more than GDP of Greece’; $600 billion annual consumer surplus from using personal location data globally’; ‘60% potential increase in retailers’ operating margins possible with big data’; ‘140,000-190,000 more deep analytical talent positions, and 1.5 million more data-savvy managers needed to take full advantage of big data in the United States’.^[74]

The impression conveyed by this report is one of extraordinary abundance. There is, it suggests, enough value-generating capacity and productivity growth to be had by anyone and everyone with an inclination to ‘exploit [big data’s] potential’. Yet already, in this effusive numerical display, one glimpses a distributional landscape populated by likely winners and projected losers: Europe’s public sector administration versus Greece’s; the US health care sector versus Spain’s; the ‘data-savvy’ and those with ‘deep analytical talent’ (and the education to enable its realisation) versus the rest.^[75] Within the report, this rocky landscape appears in even sharper relief: ‘[s]ome sectors are positioned for greater gains from the use of big data’; a level playing field this is not.^[76]

‘[B]arriers’ may, nonetheless, be ‘overcome’, the report assures us, and lawyers must put a collective shoulder to their assigned wheels. A ‘number of legal issues’ are raised in this report that will require ‘clarification . . . [in order] to capture the full potential of big data’. These are framed in ways that, for the most part, cleave closely to existing intellectual property rubrics: ‘Who “owns” a piece of data and what rights come attached with a dataset?’, ‘What defines “fair use” of data?’ Considerations of liability are also raised: ‘Who is responsible when an inaccurate piece of data leads to negative consequences?’ Yet the ‘clarification’ of these issues (as opposed to their negotiation) will ‘probably’ be worked out ‘over time’, the report suggests. Policymakers need, meanwhile, to hasten on with the task of ‘provid[ing] the institutional framework to allow companies to easily create value out of data while protecting the privacy of citizens and providing data security’. These imperatives include ‘creating an intellectual property framework that encourages innovation’. ^[77]

However much one might discount these ‘predictions’ and recommendations as hyperbole designed to sell consultancy services, forecasts such as these remain difficult to resist. McKinsey’s ‘find a general pattern in which customers, consumers, and citizens capture a large amount of the economic surplus that big data enables’. They do so, moreover, referencing the work of respected economist Erik Brynjolfsson, an expert on information technology and its role in business performance and organisational change.^[78] International lawyers—perennially worried about their discipline lagging behind other fields—are not pre-disposed to second-guess such rallying cries, especially when they harmonise with voices from the UN and the WEF, discussed above. If ‘consumer surplus’ is there to be enjoyed by people the world over, then why worry about distributional downsides? ‘[N]egative consequences’ (envisaged, it seems, primarily in terms of quantifiable damages enumerated in particular claims) may be addressed ‘over time’. Who are lawyers to stand in the way of ‘the next wave of growth’, hand-wringing about inequity or ideology?^[79]

Questions nonetheless beg international legal attention concerning a global data-driven economy so envisaged. For a start, it is important to consider what or who gets left out of the picture when we envisage economic growth as ‘data-driven’? Whose labour, other than that of the ‘data-savvy manager’, will be deployed, where, and under what terms, to bring this ‘new oil’ to global markets?^[80] Exactly which ‘customers, consumers, and citizens’, globally, are likely to feature in any ‘general pattern’ of surplus-capture, and which are not, and how might consumption and citizenship be re-imagined in that connection? What might be entailed in different ‘citizens’ (and, for that matter, non-citizens) experiencing themselves as ‘stakeholder[s]’ in this economy, and what stakes might conceivably be within their grasp?^[81]

That economic winners and losers will emerge from the advent of big data, as McKinsey’s speculative sketch of ‘general pattern[s]’ indicates, is not itself a problem that public international law could or should aspire to solve. Nor ought it to be presumed that big data will bring nothing but darkness and destruction for all but an already ‘data-savvy’ few. What I wish to highlight with the foregoing questions (without claiming to have yet conducted the sustained, collaborative inquiry that their pursuit demands) is the importance of public international lawyers following the many global value chains proliferating around big data, grasping their governance and constitutive and distributional impacts, and exploring the potential for international law to interpolate those.^[82] Particularly noteworthy is the extent to which these global value chains appear to be premised, often, on the continuing concentration of human and financial capital in certain locales, and concentration of the ‘plenty of under- and nonconsuming customers [available for ‘strategic innovators’] to tap’ in other locales, namely at ‘the base of the economic pyramid in emerging markets’.^[83]

What claims and collectivities might emerge in this economy and how might they conflict?

There is acknowledgement, in the McKinsey report quoted above, that a relatively broad cross-section of people might see themselves—or be seen—as having investments in the global assembly, mining and monetisation of a data-assets, and that this might give rise to conflicting claims. Recall the question posed: ‘Who “owns” a piece of data and what rights come attached with a dataset?’.^[84] So framed, the McKinsey report would have us anticipate and analyse these claims in terms of property ‘own[ership]’ (specifically, intellectual property ownership) and ‘rights’, as currently understood. Elsewhere, however, the same report emphasises that ‘data are fundamentally different from many other assets’, with reference to their copiable, recombinable character and their susceptibility to multiple, simultaneous uses by different people.^[85] Given this incommensurability, and the transformative change otherwise identified with the advent of big data, the formulation of novel or hybrid legal and quasi-legal claims—beyond conventional privacy-, property- and rights-based claims—might legitimately be anticipated within a data-driven global economy. These might, in turn, express or occasion alliances and subjectivities not previously configured within public international legal purview.

Consider, by way of illustration, claims and collectivities that could potentially emerge around the data-driven ‘asset class’ of impact investments.^[86] This is a category of investments ‘intended to create positive impact beyond financial return’.^[87] The assets in question are direct or indirect investments in businesses serving ‘base of pyramid’ customers—those defined by the World Resources Institute as people earning less than $3000 per year—as well as those ‘living at the base of economic pyramids in developed countries’.^[88] Of particular significance in investment decision-making and evaluation surrounding this asset class are two data-gathering and analysis tools created in 2011 and 2008 respectively, namely: the Global Impact Investment Rating System (or GIIRS) which is an aggregation, into star-based ratings and scores, of data responsive to a second tool, the Impact Reporting and Investment Standards (or IRIS).^[89] Accordingly, though not comprised of monetised data in its entirety, this asset class has been largely constituted through innovations in data and remains so constituted on an ongoing basis.

Sarah Dadush has described in some detail the process by which the IRIS ‘taxonomy and metrics’ and the GIIRS ratings system are produced. As well as investors and those responsible for developing these tools (‘US-based, mostly private actors’), her description encompasses a range of ‘entities’ that might seek to avail themselves of accreditation as IRIS-compliant and/or GIIRS ranked. These include ‘for-profit and non-profit businesses, as well as intermediaries, such as investment funds’. ^[90] Also featured in her account—though curiously under the headings ‘Participation’ and ‘Responsiveness’, rather than under those headings centred on ‘production’ in which investors, database-creators and investment-seeking businesses appear—are those referred to as ‘beneficiaries’ or ‘the impact-ed’.^[91] These ‘beneficiaries’ are, in Dadush’s account, ‘not directly involved in the production of the framework’ of IRIS metrics or GIIRS rankings, except in so far as they may access an online feedback avenue made available to the public at large. More specifically, Dadush observes that ‘positive beneficiary feedback is not a criterion for a high GIIRS rating, nor is it a metric listed in the IRIS menu that can be tracked’.^[92] In Dadush’s description, ‘beneficiaries’ are, nonetheless cast as ‘stakeholders’ of this asset class, alongside investors and shareholders.^[93]

Although Dadush does not emphasise their constitutive role, the bodies, life experiences and life-chances of these ‘beneficiaries’ comprise the central focus of, and very rationale for, this data-driven asset class and the industry rapidly crenellating around it. Only with suitable beneficiaries’ demographic data in hand may a would-be investee-entity constitute itself as an asset within the impact investment class.^[94] Without a ready line-up of ‘base of pyramid’ service-recipients or would-be ‘clients’, funds do not flow and no return on investment may be anticipated, let alone realised. Beneficiaries’ post-investment experiences feed into ‘impact evaluation’ and any resulting financial and professional benefits enjoyed by the decision-makers in question.^[95]

Just as shifting alliances of shareholder-activists and/or employees have, from time to time, troubled large corporations’ management and majority shareholders, so it is conceivable that those ‘beneficiaries’ within one or other ‘base of pyramid’ could assert the latent agency—or seek greater return on the bodily investment—to which their membership of this ‘base’ amounts. Were that to be the case, one could not expect any neat alignment of interests to hold down through the various layers of this prescriptive pyramid, from peak-scaling investor to base-inhabiting ‘beneficiary’. This is but one example of the conflict-provoking claims that developments in the global data economy might give international lawyers cause to anticipate, or for which international lawyers might wish to agitate.

What norm-making processes are being authorised or invoked in this economy and how is power exercised through those?

The pyramid configuration operative in the ‘base of pyramid’ validation of impact investment-ready assets encapsulates one mode of norm-making of great importance to governance of the global data economy: that is, the embedding of norms in, and entrenchment of norms through, data aesthetics.^[96] As scholars in the digital humanities have shown, data visualisations and representations of, and in, the digital economy exert tremendous influence on the way we grasp and deal with a range of global conditions, events and issues.^[97] Configurations, such as the pyramid configuration from impact investing’s ‘base of pyramid’ rubric (together with the IFC’s and World Resources Institute’s related definition), amount to standards with which participants are expected to accord in their own knowledge practice across the global data economy.^[98] The same might be said of visualisations of circulatory movement as the lifeblood of global law, discussed above.

Traditional international legal norm-making exercises—such as the drafting and negotiation of treaties—remain significant in the global governance of big data.^[99] The WIPO Copyright Treaty, for instance, adopted in 1996 provides for the protection of computer programs as literary works and gives protection to data compilations (that is, databases) when created as intellectual property in any form.^[100] The adoption of this treaty was a regulatory measure of consequence, helping to move copyright ‘to the center stage of international economic policy’.^[101] Nonetheless, the pyramid-shaped visualisation of impact investment’s various ‘stakeholders’ draws attention to other types of norm and norm-making just as influential in regulating this terrain.

In some respects, taking account of the range of norms regulating the global data economy may be a matter of building critically upon the insights of legal scholarship surrounding ‘soft law’.^[102] It might also be a matter of expanding upon Lawrence Lessig’s (and others’) investigations of the regulatory effects of code.^[103] Yet other directions (and potential pitfalls) for inquiry arise in connection with big data, its governing effects and the prospects for its governance. International lawyers making forays into this field risk, for instance, falling victim to ‘apophenia: seeing patterns where none actually exist, simply because enormous quantities of data can offer connections that radiate in all directions’.^[104] Navigation of this risk demands both technical competencies and critical inclinations: a combination that many international lawyers (this writer included) will need to seek in collaboration.

Likewise, while critical analysis of data abstractions and aesthetics is often valuable, certain lines of inquiry may be foreclosed by that approach, such as the evaluation of distributional impacts called for above. Ethnography and other modes of empirical research do not, moreover, offer satisfactory counterpoints. As Boyd and Crawford have highlighted, paying attention to material conditions of production, and to particularities of design and use, is often difficult in relation to big data; ‘[c]ontext is hard to interpret at scale and even harder to maintain when data are reduced to fit into a model’.^[105] Accordingly, addressing dynamics of power and authority through norm-making across the global data economy will likely demand ‘extravernacular’ research experimentation. This presents those so inclined with all the possible perils and delights that may attend ventures in ‘new thinking’ in international law.^[106]

IV. Conclusion

It is no accident that developments surrounding big data are so often described in the language of inundation. Stories of big data perform today something like the function that flood myths have long performed in the world’s many mythological traditions.^[107] They tell tales of devastation and rebirth. They anoint cultural heroes and enlist a litany of cultural line-workers, international lawyers among them.

To international lawyers has been consigned largely a diminutively technical and facilitating role in this saga. The task which policy-makers and thought-leaders concerned would have international lawyers play in the global data economy is that of fostering ‘global legal interoperability’, a term implying an orientation towards technical workability and readiness for practice.^[108] Also implicit in the big-data-related assignment laid out for international lawyers to date is more or less uncritical reproduction of certain emergent orthodoxies, a number of which have been outlined above.

International lawyers do not need to envisage themselves as heroes of this particular flood myth in order to recognise that there is more to the task with which literature concerning big data has presented them to date than making the old legal wiring work better transnationally. Important questions arise concerning power, conflict and inequity in the global data economy; international lawyers have the collective capacity to contribute to the formulation and negotiation of at least some of these.^[109] Before endorsing too readily the routine characterisations of law in stories surrounding the global data flood, let us work with others to track some of its many global runnels and riverlets, taking note of who or what is getting washed up along their banks.

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^[∗] At time of publication: Associate Professor of Law and Co-Director of the Sydney Centre for International Law, University of Sydney; currently: Professor of Law, UNSW Australia [[e-mail]]. The author would like to thank the article’s two anonymous reviewers for their helpful feedback, and Associate Professor Kimberlee Weatherall of the University of Sydney Faculty of Law for invaluable early guidance. Thanks are due also to the University of Sydney Faculty of Law for research funding.

^[1] UN Global Pulse, ‘Big Data for Development: Challenges and Opportunities’, May 2012, available at http://unglobalpulse.org (last visited 23 April 2013) 8.
^[2] R Wray, ‘Goodbye Petabytes, Hello Zettabytes’, Guardian, 3 May 2010, available at http://www.guardian.co.uk/technology/2010/may/03/humanity-digital-output-zettabyte (last visited 23 April 2013).
^[3] S Lohr, ‘The Age of Big Data’, New York Times, 20 February 2012, SR1; B Peters, ‘The Age of Big Data’, Forbes, 12 July 2012, available at http://www.forbes.com/sites/bradpeters/2012/07/12/the-age-of-big-data/ (last visited 23 April 2013); D Bollier, The Promise and Peril of Big Data (Aspen Institute, 2010), available at http://www.thinkbiganalytics.com/uploads/Aspen-Big_Data.pdf (last visited 23 April 2013).
^[4] C Lynch, ‘How do your data grow?’ 455 Nature (4 September 2008) 28-29, available at http://www.nature.com/nature/journal/v455/n7209/full/455028a.html (last visited 23 April 2013). The research arm of consulting firm McKinsey & Company define ‘big data’ as ‘datasets whose size is beyond the ability of typical database software tools to capture, store, manage and analyse’, remarking that ‘[t]he definition incorporates a moving definition of how big a dataset needs to be in order to be considered big data . . . as technology advances over time’ and that ‘the definition can vary by sector’: J Manyika et al., Big Data: The Next Frontier for Innovation, Competition, and Productivity (McKinsey Global Institute, 2011) available at http://www.mckinsey.com/insights/mgi/research/technology_and_innovation/big_data_the_next_frontier_for_innovation (last visited 23 April 2013).

⁵ N Zurawski, ‘Local Practice and Global Data: Loyalty Cards, Social Practices and Consumer Surveillance’ 52 The Sociological Quarterly (2011) 509, 513.
^[6] Manyika et al. (2011). As the business journalist Dan Woods has observed, lack of detail concerning, and ‘lack of attention to patterns of value creation’ underpinning, the economic and developmental changes with which big data is associated is a common feature of discussions on this theme. ‘Most of the time’, Woods laments, ‘we are presented with scenarios in which data is poured into Hadoop [an open-source software framework that supports data-intensive applications], or sifted with Splunk [a US-based corporation producing software for searching, monitoring, and analysing machine-generated data] and somehow you get insights’: D Woods, ‘Apigee Insights: An Innovative Pattern for Big Data Value Creation’, Forbes, 12 February 2013, available at http://www.forbes.com/sites/danwoods/2013/02/12/apigee-insights-an-innovative-pattern-for-big-data-value-creation/ (last visited 23 April 2013).
^[7] See generally R Martin, Financialization of Daily Life (Temple UP, 2002). One instance of the financialisation of augmented data streams and data analysis capacities is afforded by recent decades’ developments in the weather derivatives market: see A Pike & J Pollard, ‘Economic Geographies of Financialization’ 86 Economic Geography (2010) 29, 42-45. On data flaws impeding ’evolution’ of this financial market, see AK Alexandridis & AD Zapranis, Weather Derivatives: Modeling and Pricing Weather-Related Risk (Springer, 2013) 37-54.

^[8] Manyika et al. (2011).

^[9] Compare D Robinson, H Yu, WP Zeller & EW Felten, ‘Government Data and the Invisible Hand’ 11 Yale Journal of Law & Technology (2009) 160, 161 (arguing for government ‘rel[iance] on private parties in a vibrant marketplace of engineering ideas’) and D Linders, ‘From e-government to we-government: Defining a typology for citizen coproduction in the age of social media’ 29 Government Information Quarterly (2012) 446, 451 (advancing a number of concerns about a ‘market-driven, transaction-oriented approach’).

^[10] Lynch (2008).

^[11] Lohr (2012).
^[12] World Economic Forum, ‘Personal Data: The Emergence of a New Asset Class’, January 2011, available at http://www.weforum.org/reports/personal-data-emergence-new-asset-class (last visited 23 April 2013) 5.
^[13] Ibid 5, 15.
^[14] UN Global Pulse (2012) 9.
^[15] Ibid 9-11, 13-14.

^[16] B Maurer, ‘Regulation as Retrospective Ethnography: Mobile Money and the Arts of Cash’ 21 Banking and Finance Law Review (2011) 299, 302; J Kendall, B Maurer, P Machoka & C Veniard, ‘An Emerging Platform: From Money Transfer System to Mobile Money Ecosystem’ 6 Innovations: Technology, Governance, and Globalization (2011) 49; KP Donovan, ‘Mobile Money, More Freedom? The Impact of M-PESA’s Network Power on Development as Freedom’ 6 International Journal of Communication (2012) 2647. See generally the website of the Institute for Money, Technology and Financial Inclusion in the School of Social Sciences at the University of California, Irvine, available at http://www.imtfi.uci.edu/ (last visited 23 April 2013).
^[17] KP Donovan, ‘Seeing Like a Slum: Towards Open, Deliberative Development’ 13 Georgetown Journal of International Affairs (2012) 97, 98.
^[18] JD Sachs & AM Warner, ‘The Big Push, Natural Resource Booms and Growth’ 59 Journal of Development Economics (1999) 43.
^[19] S Pahuja, ‘Conserving the World’s Resources?’, in J Crawford & M Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge UP, 2012) 398.
^[20] World Economic Forum (2011) 5. See also World Economic Forum, ‘Big Data, Big Impact: New Possibilities for International Development’, 2012, available at http://www.weforum.org/reports/big-data-big-impact-new-possibilities-international-development (last visited 23 April 2013).
^[21] N Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties (Cambridge UP, 1997).
^[22] DP Fidler, ‘Negotiating Equitable Access to Influenza Vaccines: Global Health Diplomacy and the Controversies Surrounding Avian Influenza H5N1 and Pandemic Influenza H1N1’ 7(5) PLoS Medicine (2010), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2864298/ (last visited 23 April 2013).
^[23] E Bernstein & TJ Lee, ‘Where the Consumer is the Commodity: The Difficulty with the Current Definition of Commercial Speech’, March 2012, available at SSRN: http://dx.doi.org/10.2139/ssrn.2019270 (last visited 23 April 2013); RH Wade, ‘Bridging the Digital Divide: New Route to Development or New Form of Dependency’ 8 Global Governance (2012) 443.
^[24] Among the disciplines contending to define and theorise the ramifications of ‘big data’, or most likely to be in such contention, are the following: economic sociology, economic geography, political economy, development studies, cultural studies, anthropology, science and technology studies, critical theory, media studies, intellectual history (including the history of statistical thought), business management and marketing. Within legal scholarship, the front-running sub-fields are intellectual property law, international economic law and the sub-field variously defined as law and technology or Internet law. The digital humanities are also broadly concerned with mapping and visualising big-data-related shifts, although according to Alan Liu, ‘the field does not yet possess an adequate critical awareness of the larger social, economic, and cultural issues at stake’ in ‘the postindustrial state’ to live up to the ambitions embedded within it: A Liu ‘The State of the Digital Humanities: A Report and a Critique’ 11 Arts and Humanities in Higher Education (2012) 8, 11, 30. See generally MK Gold (ed.), Debates in the Digital Humanities (University of Minnesota Press, 2012).
^[25] L Gitelman, Raw Data is an Oxymoron (MIT Press, 2013).
^[26] D Boyd & K Crawford, ‘Critical Questions for Big Data: Provocations for a Cultural, Technological, and Scholarly Phenomenon’ 15 Information, Communication & Society (2012) 662.
^[27] J Klabbers, ‘Counter-Disciplinarity’ 4 International Political Sociology (2010) 308 (discussing prospects for approaching inter-disciplinary inquiry without disciplinary instrumentalisation or colonisation). For more on ‘counter-disciplinarity’, see E Zein-Elabdin, ‘Articulating the postcolonial (with economics in mind)’, in E Zein-Elabdin & S Charusheela (eds), Postcolonialism meets Economics (Routledge, 2004) 21, 34.
^[28] There may be parts of the global data economy that do not correspond to the structure or dynamics of capitalism—that are more commensurate, for instance, with an economy of gift exchange—but I shall set that aside for purposes of this article.
^[29] K Marx, Capital: A critique of political economy, vol. 1, trans. B. Fowkes and vol. 3, trans. D Fernback (Penguin, 1976-1981); see also I Gerstein, ‘Production, Circulation and Value’ 5 Economy and Society (1976) 243, 247-61. Emphasis was, however, already placed upon the economic significance of monetary circulation in late seventeenth century thought: see MW Holtrop, ‘Theories of the Velocity of Circulation of Money in Earlier Economic Literature’ 4 Economic History (1929) 503.
^[30] A Appadurai, ‘Introduction: Commodities and the Politics of Value’, in The Social Life of Things: Commodities in Cultural Perspective (CUP, 1988) 3, 17, 41.

^[31] B Lee and E LiPuma, ‘Cultures of Circulation: The Imaginations of Modernity’ 14 Public Culture (2002) 191.
^[32] Public international law scholarship’s relative indifference to what is being circulated leads to a further occlusion, namely, inattentiveness to ongoing shifts in the global economy’s circulatory system(s). As anthropologist Bill Maurer explains, recent rule changes initiated under the US Bank Secrecy Act 1970, by the United States’ Financial Crimes Enforcement Network (FinCEN), could be understood to have staged a ‘conceptual shift from value to access’ in characterising prepaid instruments such as private coupons and gift cards. In FinCEN’s preference for conceiving of such instruments as ‘prepaid access’ rather than ‘stored value’, Maurer suggests that we might be seeing notions of monetary value and exchange-potential taking ‘a back seat to . . . transactional data’ and entitlements to access data. In other words, the circulation of data and data access-entitlements might entail ‘the obviation of money as a store of value’: B Maurer, ‘Late to the Party: Debt and Data’ 20 Social Anthropology (2012) 474, 477-78. These developments seem distinguishable from, albeit related to, techniques of value dispersal and unbundling involved in constituting the derivative form and sustaining global derivatives markets. The circulation of data, and/or entitlements to access data, without immediate regard for prospects for its monetisation, is akin to the circulation of derivatives unbundled from trade in the underlying variable asset to which they relate: see generally R Martin, M Rafferty & D Bryan, ‘Financialization, Risk and Labour’ 12 Competition in Change (2008) 120. In the context described by Maurer, however, the tether between data (or data-access-entitlement) and any underlying asset or prospect of exchange seems even more attenuated than in the generic derivative form. In Maurer’s account, the market in transactional data embedded in a coupon or gift card is not derivative of the amount or other features of the originating purchase, nor of any explicit anticipation of any successor transaction. Maurer’s example also suggests that the practical activity of mapping, patrolling and exploiting global trade routes in data may be occurring in professional, commercial and regulatory settings quite unlike those in which derivative design, trade and regulation has traditionally been rooted.

^[33] World Economic Forum, ‘Rethinking Personal Data: Strengthening Trust’, May 2012, available at http://www.weforum.org/reports/rethinking-personal-data-strengthening-trust (last visited 23 April 2013) 5.

³⁴ Ibid 31.
^[35] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1995), available at http://ec.europa.eu/justice/data-protection/index_en.htm (last visited 23 April 2013) (see, e.g., preambular paragraph (8)).
^[36] UN Global Pulse (2012) 13.

^[37] See, e.g., J Frankel & D Romer, ‘Does Trade Cause Growth?’ 89 The American Economic Review (1999) 379 (finding that ‘trade has a . . . only moderately statistically significant, positive effect on income’); LA Winters, ’Trade and poverty: is there a connection?’ 5 Trade, Income Disparity and Poverty (2000), available at http://192.91.247.23/spanish/news_s/pres00_s/pov3_e.pdf (last visited 23 April 2013) (observing that ‘general answers of the sort “liberalization of type a will have poverty impacts of type b” are just not available’); D Rodrik ‘Trading in Illusions’ 123 Foreign Policy (2001) 54.
^[38] See, e.g. L Taylor, ‘Capital market crises: Liberalisation, fixed exchange rates and market-driven destabilisation’ 22 Cambridge Journal of Economics (1998) 663; E LiPuma & B Lee, ‘Global Flows and the Politics of Circulation’, in Financial Derivatives and the Globalization of Risk (Duke UP, 2004) 1, 5; N Popper, ‘Flood of Errant Trades Is a Black Eye for Wall Street’, New York Times, 1 August 2012, available at http://www.nytimes.com/2012/08/02/business/unusual-volume-roils-early-trading-in-some-stocks.html?pagewanted=all&_r=0 (last visited 23 April 2013); MT Clements, ‘Curbing the Dangers of High-Frequency Trading’ 9 The Economists' Voice (2012), available at http://www.degruyter.com/view/j/ev.2012.9.issue-1/1553-3832.1885/1553-3832.1885.xml (last visited 23 April 2013).
^[39] On macro-economists’ emphasis on circulation, see, e.g., EJ Nell, ‘Monetising the Classical Equations: A theory of circulation’ 28 Cambridge Journal of Economics (2004) 173, 174-77; G Deleplace & EJ Nell, Money in Motion: The Post Keynesian and Circulation Approaches (MacMillan, 1996).

⁴⁰ This is a formulation offered by then-President of the Society for Historians of American Foreign Relations, Robert D. Schulzinger, who contends that ‘[t]he notion originated in the world of finance’: RD Schulzinger, ‘Presidential Address: Transparency, Secrecy, and Citizenship’ 25 Diplomatic History (2001) 165, 165-66.
^[41] Ibid 168; A Frost, ‘Restoring Faith in Government: Transparency Reform in the United States and the European Union’ 9 European Public Law (2003) 87.
^[42] B Holzner, ‘The Transparency Syndrome in Global Change’, September 2001, available at www.spea.indiana.edu/tac/colloquia/2001/pdf/holzner.pdf (last visited 23 April 2013); R Islam, ‘Do More Transparent Governments Govern Better?’, June 2003, World Bank Policy Research Working Paper No 3077, available at SSRN: http://ssrn.com/abstract=636439 (last visited 23 April 2013); JE Stiglitz, ‘On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life’, in MJ Gibney (ed.), Globalizing Rights: The Oxford Amnesty Lectures 1999 (Oxford University Press, 2003) 115.
^[43] SL Star, GC Bowker & LJ Neumann, ‘Transparency at Different Levels of Scale: Convergence between Information Artifacts and Social Worlds’, 1 August 1997, available at http://epl.scu.edu/_gbowker/converge.html (last visited 23 April 2013) (‘A system is transparent if the user does not have to be bothered with the underlying "stuff" driving it, just as an automobile is transparent when one sits down, turns the key, and drives off without the foggiest notion of how internal combustion works. Total transparency . . . is of course an ideal type, nowhere to be found in the real world (everyone’s car stalls now and then, or has its little idiosyncrasies requiring a deeper involvement with the tool). We define transparency here to include the idea of relative usability, and computer tools and interfaces which are basically ready to hand for some group of users.’)
^[44] A Damodaran, ‘The Value of Transparency and the Cost of Complexity’, January 2006, available at SSRN: http://ssrn.com/abstract=886836 or http://dx.doi.org/10.2139/ssrn.886836 (last visited 23 April 2013) (arguing, at 39, that ‘[t]o preserve the integrity of financial markets, we must push to make the financial statements of firms both truthful and transparent’).

^[45] European Commission, Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, ‘A Comprehensive Approach on Personal Data Protection in the European Union’, COM(2010) 609, 4 November 2010, available at http://ec.europa.eu/justice/news/consulting_public/0006/com_2010_609_en.pdf (last visited 23 April 2013).
^[46] The claim being made here is not that transparency is, in all contemporary instances, incapable of realisation so that data releases such as those effected by Wikileaks, for instance, are inconsequential. Rather, I am drawing attention to a characteristic of ‘transparency’, as articulated in much global legal and policy literature, as pre-coded for, and embedded with anticipation of, its frustration. Analysing whether or not that frustration does, in fact, eventuate in a range of different knowledge practices and settings lies well beyond the scope of this article.

^[47] OECD, ‘Empowering and Protecting Consumers in the Internet Economy’, OECD Digital Economy Papers, No 216 (OECD Publishing, 2013) available at http://dx.doi.org/10.1787/5k4c6tbcvvq2-en (last visited 23 April 2013) 21.
^[48]J Dean, ‘Theorizing Conspiracy Theory’ 4 Theory and Event (2000), available at http://muse.jhu.edu/journals/theory_and_event/v004/4.3r_dean.html (last visited 23 April 2013).

^[49] S Deetz & D Mumby, ‘Metaphors, Information and Power’, in BD Ruben (ed.), Information and Behaviour, vol. 1 (Transaction Publishers, 1985) 372. See, further, S Deetz, Transforming Communication, Transforming Business: Building Responsive and Responsible Workplaces (Hampton Press, 1995); S Deetz, ‘The Business Concept and Managerial Control in Knowledge-Intensive Work: A Case Study of Discursive Power’, in B Davenport Sypher (ed.), Case Studies in Organizational Communication 2: Perspectives on Contemporary Work Life (Guilford Press, 1997) 183.
^[50] The notion of ‘ideology’ or ‘ideological function’ being deployed here is, broadly speaking, aligned with that outlined in S Žižek, ‘Introduction: The Spectre of Ideology’, in S Žižek (ed.), Mapping Ideology (Verso, 2012) 1 (as a ‘generative matrix that regulates the relationship between visible and non-visible, between imaginable and non-imaginable, as well as the changes in this relationship’). See also J Dean, ‘Why the Net is not a Public Sphere’ 10 Constellations (2003) 95, 101.

⁵¹ OECD, ‘The Development and Diffusion of Digital Content’, OECD Digital Economy Papers, No 213 (OECD Publishing, 2012), available at http://dx.doi.org/10.1787/5k8x6kv51z0n-en (last visited 23 April 2013) 40 (emphasis added).

^[52] Dean (2003) 102-03.

^[53] Ibid 101-02.

^[54] By way of an illustration from popular literature, see NN Taleb, ‘Beware the Errors of “Big Data”’, Wired, 8 February 2013, available at http://www.wired.com/opinion/2013/02/big-data-means-big-errors-people/ (last visited 23 April 2013).

^[55] K Thomas, ‘Beyond the Privacy Principle’ 92 Columbia Law Review (1992) 1431, 1444, 1510.
^[56] Ibid 1436.
^[57] This is not to downplay important differences in policy approaches that pertain in this setting. For a comparison of approaches in a number of Asian jurisdictions (with a focus on Singapore), the United States and Europe, see S Chesterman, ‘After Privacy: The Rise of Facebook, the Fall of Wikileaks, and the Future of Data Protection’, April 2012, available at SSRN: http://ssrn.com/abstract=2042144 (last visited 23 April 2013).
^[58] See, e.g., DJ Solove, Nothing to Hide: The False Tradeoff between Privacy and Security (Yale UP, 2011); DJ Solove, The Digital Person: Technology and Privacy in the Information Age (NYU Press, 2004). The relationship between these two notions—data protection and privacy, that is—is explored in Chesterman (2012) and in K McCullagh, ‘Protecting “Privacy” Through Control of “Personal” Data Processing: A Flawed Approach’ 23 International Review of Law, Computers & Technology (2009) 13.
^[59] See, e.g., AE Wade, ‘A New Age of Privacy Protection: A Proposal for an International Personal Data Privacy Treaty’ 42 George Washington International Law Review (2010) 659; BJ Keele, ‘Privacy by Deletion: The Need for a Global Data Deletion Principle’ 16 Indiana Journal of Global Legal Studies (2009) 363; S van der Hof & JEJ (Corien) Prins, ‘Personalisation and Its Influence on Identities, Behaviour and Social Values’, in M Hildebrandt & S Gutwirth (eds), Profiling the European Citizen, Cross-disciplinary Perspectives (Springer, 2008) 111; CJ Bennett & C Raab, The Governance of Privacy: Policy Instruments in Global Perspective, 2nd ed. (MIT Press, 2006); JG Reidenberg, ‘The Simplification of International Data Privacy Rules’ 29 Fordham International Law Journal (2005-2006) 1128; SR Salbu, ‘The European Union Data Privacy Directive and International Relations’ 35 Vanderbilt Journal of Transnational Law (2002) 655.
^[60] P Rosenzweig, ‘Privacy and Counter-Terrorism: The Pervasiveness of Data’ 42 Case Western Reserve Journal of International Law (2009-2010) 625; F Bignami, ‘Privacy and Law Enforcement in the European Union: The Data Retention Directive’ 8 Chicago Journal of International Law (2007-2008) 233.
^[61] RK Walker, ‘Forcing Forgetfulness: Data Privacy, Free Speech, and the “Right to Be Forgotten”’, March 2012, available at SSRN: http://dx.doi.org/10.2139/ssrn.2017967 (last visited 23 April 2013); JB Baron, ‘Property as Control: The Case of Information’ 18 Michigan Telecommunications & Technology Law Review (2011-2012) 367; JEJ (Corien) Prins, ‘When personal data, behavior and virtual identities become a commodity: Would a property rights approach matter?’ 3(4) SCRIPTed (2006) 270, available at http://www.law.ed.ac.uk/ahrc/script-ed/vol3-4/prins.asp (last visited 23 April 2013); JE Cohen, ‘Examined Lives: Informational Privacy and the Subject as Object’ 52 Stanford Law Review (2000) 1373; P Samuelson, ‘Privacy as Intellectual Property?’ 52 Stanford Law Review (2000) 1125.
^[62] JH Reichman & PF Uhlir, ‘A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment’ 66 Law and Contemporary Problems (2003) 315; CM Correa, ‘Unfair Competition under the TRIPS Agreement: Protection of Data Submitted for the Registration of Pharmaceuticals’ 3 Chicago Journal of International Law (2002) 69; JH Reichman & P Samuelson, ‘Intellectual Property Rights in Data’ 50 Vanderbilt Law Review (1997) 49.
^[63] Chesterman (2012).
^[64] Thomas (1992) 1458, 1460.

^[65] Manyika et al. (2011).
^[66] O Tene, ‘What Google Knows: Privacy and Internet Search Engines’ 2008 Utah Law Review (2008) 1433, 1469. On the significance of the chooser for international legal thought, see F Johns, Non-Legality in International Law: Unruly Law (Cambridge UP, 2013) 109-13, 156, 221.
^[67] J Battelle, The Search: How Google and its Rivals Rewrite the Rules of Business and Transformed Our Culture (Penguin, 2005) 6.
^[68] On the will to privacy and difficulties it confronts, see I Callus, ‘Reclusiveness and Posthumanist Subjectivity’ 5 Subjectivity (2012) 290.

^[69] Thomas (1992) 1454-56, 1476-92. Feminist critiques of privacy are also apposite here: see LC McClain, ‘Inviolability and Privacy: The Castle, the Sanctuary, and the Body’ 7 Yale Journal of Law & the Humanities (1995) 195.
^[70] The OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, adopted 23 September 1980, available at http://www.oecd.org/internet/interneteconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm (last visited 23 April 2013) (see especially pt 2, para. 7); Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, available at http://ec.europa.eu/justice/data-protection/index_en.htm (last visited 23 April 2013) (see especially Art. 7(a)).
^[71] E Zheleva & L Getoor, ‘To Join or Not to Join: The Illusion of Privacy in Social Networks with Mixed Public and Private User Profiles’, in WWW '09: Proceedings of the 18th International Conference on World Wide Web (2009) 531, available at http://dl.acm.org/citation.cfm?id=1526781 (last visited 23 April 2013).
^[72] Tene (2008) 1490.

^[73] ‘[F]lesh-and-blood bodies’ is Thomas’ term: Thomas (1992) 1498.
^[74] McKinsey Global Institute (2011).
^[75] Ibid.
^[76] Ibid 8-9.
^[77] Ibid 9, 11-13.
^[78] Ibid 7 and notes 8, 11.
^[79] Ibid 7, 12-13.

^[80] The ‘new oil’ characterisation is from World Economic Forum (2011) 5.
^[81] The immediate context here is the McKinsey report’s speculation that ‘[a] stakeholder that holds a certain dataset might consider it to be the source of a key competitive advantage and thus would be reluctant to share it with other stakeholders’: McKinsey Global Institute (2011) 12.
^[82] On analysis of global value chains and their governance dimensions, see P Gibbon, J Bair & S Ponte, ‘Governing Global Value Chains: An Introduction’ 37 Economy and Society (2008) 315.
^[83] J Anderson & C Markides, ‘Strategic Innovation at the Base of the Pyramid’ 49 MIT Sloan Management Review (2007) 83.
^[84] McKinsey Global Institute (2011) 11.
^[85] Ibid.
^[86] N O’Donohue et al., ‘Impact Investments: An Emerging Asset Class’, JP Morgan Global Research Report, 29 November 2010, available at http://www.rockefellerfoundation.org/news/publications/impact-investments-emerging-asset (last visited 23 April 2013); S Dadush, ‘Impact Investment Indicators: A Critical Assessment’, in K Davis, A Fisher, B Kingsbury & SE Merry (eds), Governance by Indicators: Global Power Through Classification and Rankings (Oxford UP, 2012) 392.
^[87] O’Donohue (2010) 7.

^[88] Ibid 8.
^[89] Ibid 29; Dadush (2012) 392-93.
^[90] Dadush (2012) 407-11.
^[91] Ibid 421-22.

^[92] Ibid 421.
^[93] Ibid 422.
^[94] Ibid 406, 408 (describing the questions to which prospective investees must respond concerning ‘beneficiaries targeted’ and ‘consumers/clients served’). On the sorts of opportunities identified with such ‘clients’ or would-be clients, see generally Anderson & Markides (2007).
^[95] Dadush (2012) 423-24.
^[96] Liu (2012) 27.
^[97] See, e.g., M Kelly, ‘Visualizing Millions of Words’ in Gold (2012) 402. See also the visualisation and mapping projects ongoing at the Oxford Internet Institute in the United Kingdom, a description of which is available at http://www.oii.ox.ac.uk/research/ (last visited 23 April 2013).
^[98] A Hammond et al., The Next 4 Billion: Market Size and Business Strategy at the Base of the Pyramid (World Resources Institute/International Finance Corporation, 2007), available at http://www.wri.org/publication/the-next-4-billion (last visited 23 April 2013).
^[99] See, e.g., M Garber, ‘How the UN’s “Game-Changing” Internet Treaty Failed’, The Atlantic, 14 December 2012, available at http://www.theatlantic.com/technology/archive/2012/12/how-the-uns-game-changing-internet-treaty-failed/266263/ (last visited 23 April 2013).
^[100] WIPO Copyright Treaty, adopted in Geneva on 20 December 1996, entered into force on 6 March 2002, available at http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html#P8_189 (last visited 23 April 2013).
^[101] RG Okediji, ‘Copyright and Public Welfare in Global Perspective’ 7 Indian Journal of Global Legal Studies (1999) 117. For analysis of some of the Treaty’s effects, as well as the displacement of copyright norms by contract and encryption, see P Goldstein, ‘Copyright and its Substitutes’ 1997 Wisconsin Law Review (1997) 865.
^[102] A di Robilant, ‘Genealogies of Soft Law’ 54 The American Journal of Comparative Law (2006) 499.
^[103] L Lessig, Code, and Other Laws of Cyberspace, Version 2.0 (Basic Books, 2006).
^[104] Boyd & Crawford (2012) 668.

^[105] Ibid 671. The limits of the ethnographic inquiries pursued by contributors to Davis et al. (2012) are illustrative of this latter point, for all the merits of that book.
^[106] D Kennedy, ‘My Talk at the ASIL: What is “New Thinking” in International Law’ 94 American Society of International Law Proceedings (2000) 104, 125.
^[107] A Dundes, The Flood Myth (University of California Press, 1988); D Leeming, ‘Flood’, in The Oxford Companion to World Mythology (Oxford UP, 2005) 138.
^[108] World Economic Forums (2011) 15; ‘operable, adj. and n.’, OED Online (Oxford University Press, 2012), available at http://www.oed.com.ezproxy1.library.usyd.edu.au/view/Entry/131732 (last visited 23 April 2013).
^[109] To be clear, the sort of roles I have in mind, for international lawyers, in the formulation and negotiation of such questions are not those cast in the mould of a UN Special Rapporteur, or an International Law Commission Working Group. Rather, I am primarily envisaging scholarly participation in collaborative mapping and critical sleuthing work (already underway) along specific, ‘data-driven’ global value chains.