Internet Data in the United States

Regulations

Federal and state laws and regulations govern the collection, use, retention, disclosure,
sharing and security of data that we receive from and about our users. The use of consumer data by online service providers and advertising networks is a topic of active interest among federal and state regulatory bodies, and the regulatory environment is unsettled. Many states have passed laws requiring notification to users where there is a security breach for personal data, such as California’s Information Practices Act.

The European Court of Justice’s invalidation of the European Commission’s 2000 Safe Harbor
Decision has created uncertainty around certain international transfers of data from the European Union to the United States. A preliminary agreement has been reached between the United States and European Union governments to allow for certainty regarding transfers of data. However, given the preliminary nature of the agreement, some uncertainty remains, and compliance obligations could cause require online companies to change business practices.

The interpretation and application of privacy, data protection, data transfer and data retention laws and regulations are often uncertain and in flux in the United States.

Big Data

Some resources on big data and data analytics in the context of law include:

• JR Jenkins, How to Handle the Big Data Problem Like Abraham Lincoln. Peer to
  Peer, vol. 30, no. 2, Summer 2014, pp. 12-14.
• Peter Ozolin, Listening to Big Data: Finally, Relevant Information for Business
  Development. Peer to Peer, vol. 29, no. 4, December 2013, pp. 44-47.
• Nick Patience, The Value of Big Data to Law Firms. Peer to Peer, vol. 29, no. 1,
  March 2013, pp. 70-71.
• Nicole Blake, And the Data Went Kaboom. Peer to Peer, vol. 29, no. 1, March
  2013, pp. 43-46.
• Peter Hanton, Big Data: Changing the Way We Work, The Law Society Gazette,
  July 18, 2016, http://www.lawgazette.co.uk/law/practice-points/big-datachanging-the-way-we-work/5056604.fullarticle,
• Deb Dobson, How Big Data Can Solve Problems – Big Data 101, ILTA webinar,
  April 29, 2015, http://connect.iltanet.org/viewdocument/2015-how-big-data-
  1?_g,a=1.233032990.1469280009.1476121881&ssopc=1,
• Christian Zust, How Big Data Can Solve Problems – Advanced Statistical
  Analysis, ILTA webinar, July 6, 2015, (in connect.iltanet.org)
• Joe Dysart, The Dawn of Big Data: Mining the Information Mother Lode for
  Pricing, Practice Tips and Predictions. ABA Journal, May 2013, pp. 42-47.
• Sharon D. Nelson & John W. Simek, Big Data: Big Pain or Big Gain for Law
  Firms? Sensei Enterprises, Inc., 2013.
• oni Minick, Data Analytics for Profitable Business Development. Peer to Peer,
  vol. 31, no. 2, Summer 2015, pp. 56-58.
• Jonathan Ashtor, The Future of Patent Analysis at Skadden. Peer to Peer, vol. 31,
  no. 2, Summer 2015, pp. 36-38.
• Sarah Garber, The Third Wave: Why Big Data is the Future of Legal Tech. IP
  Watchdog, August 9, 2016, http://www.ipwatchdog.com/2016/08/09/big-datafuture-legal-tech/id=71675/,
• Dan Steiner, Data Analytics and Your Law Firm. LTT: Law Technology Today,
  April 28, 2016, http://www.lawtechnologytoday.org/2016/04/big-data-law-firmdata-analytics-influencing-cases/
• Nick Goseland, The Big Data Revolution. Above the Law, April 1, 2016,
  abovethelaw.com/2016/04/the-big-data-revolution/, accessed 10/18/16.

International Trade of Data

The United States is committed, according to the Office of the United States Trade Representative, to transforming the rules of international trade to promote the free the flow of goods, services, and data across a free and open Internet.

PROTECTING CRITICAL SOURCE CODE
U.S. innovators should not have to hand over their source code or proprietary algorithms to their
competitors or a regulator that will then pass them along to a State-owned enterprise. The United
States will ensure that companies do not have to share source code, trade secrets, or substitute local
technology into their products and services in order to access new markets, while preserving the ability
of governments to obtain access to source code in order to protect health, safety, or other legitimate
regulatory goals.

ENSURING TECHNOLOGY CHOICE
Innovative companies should be able to utilize the technology that works best and suits their needs. For
example, mobile phone companies should be able to choose among wireless transmission standards like
WiFi and LTE. The United States will negotiate technology choice provisions to ensure that companies
are not required to purchase and utilize local technology, instead of technology of their own choosing.

ADVANCING INNOVATIVE AUTHENTICATION METHODS
The availability of diverse electronic signature and authentication methods protects users and their
transactions through mechanisms such as secure online payment systems. The United States will
ensure that suppliers can use the methods that they think best for this purpose.

DELIVERING ENFORCEABLE CONSUMER PROTECTIONS
When consumers turn to the Internet for social or commercial purposes, they should be protected. We
believe consumer protections, including with respect to privacy, should be embraced by our trading
partners. The United States seeks commitments from its free trade agreement partners to adopt and
maintain enforceable protections within their markets so that baseline consumer trust is enhanced.

SAFEGUARDING NETWORK COMPETITION
The United States believes that modern trade agreements must enable our suppliers to build networks
in the markets they serve—whether landing submarine cables or expanding data and voice networks—
to better access consumers and businesses.

FOSTERING INNOVATIVE ENCRYPTION PRODUCTS
Encryption is increasingly seen as an important tool to address protections of privacy and security in the
digital ecosystem. The United States will negotiate rules that protect innovation in encryption products
to meet consumer and business demand for product features that protect security and privacy, while
allowing law enforcement access to communications consistent with applicable law.

BARRING FORCED TECHNOLOGY TRANSFERS
Countries should not make market access contingent on forced transfers of technology. The United
States will negotiate rules prohibiting countries from requiring companies to transfer their technology,
production processes, or other proprietary information to persons in their respective territories.

PROMOTING COOPERATION ON CYBERSECURITY
The United States will work with its trading partners to share information on threats, as well as help to
build cybersecurity capacity to prevent cyber-attacks and stop the diffusion of malware.

PRESERVING MARKET-DRIVEN STANDARDIZATION & GLOBAL INTEROPERABILITY
Innovators should not have to design products differently for each market they seek to serve—that
is why we have the global standards process, where industry leads and the best technologies win.
The United States will ensure that countries cannot arbitrarily demand that less competitive national
standards be forced into innovative American products.

ELIMINATING TARIFFS ON ALL MANUFACTURED PRODUCTS
The United States will agree to eliminate tariffs on all product exports manufactured in the territory of its
free trade agreement partners, including information and communication technology (ICT) products. In
addition, the United States will ask its free trade agreement partners to commit to work to join the WTO
Information Technology Agreement (ITA), which will eliminate tariffs on a broad range of information
technology products, including countries that have not previously joined the ITA.

SECURING ROBUST MARKET ACCESS COMMITMENTS ON INVESTMENT & CROSSBORDER SERVICES, INCLUDING THOSE DELIVERED DIGITALLY
The United States will seek and maintain strong investment and cross-border services commitments.
In particular, the United States will seek to provide U.S. digital service providers with the certainty of
knowing that the services they provide—including both technology-related support services such as
cloud computing and services like consulting, marketing, and advertising more generally—can be legally
offered in the countries of its free trade agreement partners.

ENSURING FASTER, MORE TRANSPARENT CUSTOMS PROCEDURES
The United States will seek to include in its trade agreements strong commitments on customs
procedures and trade facilitation (including express shipments) to ensure that border processing will be
quick, transparent, and predictable. These kind of administrative barriers can often be a bigger problem
than tariffs for U.S. exporters of digital equipment. The United States also will seek to facilitate paperless
trading through the use of electronic customs forms.

BUILDING AN ADAPTABLE FRAMEWORK FOR DIGITAL TRADE
New and innovative digital products and services should be protected in trade agreements against
future discrimination. By design, U.S. trade agreements will include protections for services and
investment that continue to apply as markets change and innovative technologies emerge, unless a
specific, negotiated exception applies.

ENSURING FAIR COMPETITION WITH STATE-OWNED ENTERPRISES
The United States will seek to conclude robust commitments to ensure that State-owned enterprises
competing with U.S. exporters, including in the ICT sector, compete on the basis of quality and price
rather than on the basis of discriminatory regulation, subsidies, or favoritism.

PROMOTING STRONG & BALANCED COPYRIGHT PROTECTIONS & ENFORCEMENT
Copyright protections are essential to ensuring that the coders, designers, and product managers behind
a product have the freedom to create and are compensated for their creative works—just like musicians
and authors. The United States seeks the strong copyright protection and enforcement provisions that
we have in U.S. law, and the commitment of our free trade agreement partners to continuously seek to
achieve an appropriate balance in their copyright systems, including through copyright exceptions and
limitations. The United States also seeks copyright safe harbors for legitimate Internet Service Providers
(ISPs) comparable to those in U.S. law.

ADVANCING MODERN PATENT PROTECTION
The United States will reinforce the global standard of transparent, strong, and balanced patent
protections for cutting edge innovation, including appropriate limitations and exceptions drawn from
international commitments. These provisions protect the jobs and innovative solutions generated by
U.S. entrepreneurs in areas ranging from solar panels to smart manufacturing.

COMBATTING TRADE SECRET THEFT
The United States will negotiate provisions to address the problem of corporate espionage, including trade
secret theft conducted by State-owned enterprises. The United States will ask its free trade agreement
partners to establish criminal procedures and penalties for trade secret theft, including by means of cyber
theft, while preserving domestic laws that protect whistleblowing.

RECOGNIZING CONFORMITY ASSESSMENT PROCEDURES
Conformity assessment procedures verify that products, including ICT products, meet required
standards and technical regulations, but overly burdensome conformity assessment procedures
in foreign countries can hinder ICT exports. The United States will require its free trade agreement
partners to provide “national treatment” to one another’s conformity assessment bodies, so testing and
certification performed by a qualified conformity assessment body will be accepted as consistent with
another partner’s requirements.

Co-location/Internet Data Services Agreements and the E-Commerce Law

Co-location/Internet Data Services Agreements and the Legal Aspects of E-Commerce

Resources

See Also

• PPC Advertising
• Social Networking
• Spam
• Startups
• Internet Tax
• Technology Law
• Terms of Use