Kuner, C. "Regulation of Transborder Data Flows under Data Protection and Privacy Law: Past, Present, and Future," OECD Digital Economy Papers No. 187 (OECD Publishing, 2011).
cross-border data flow (p.21-22): The increasing complexity of regulation governing transborder data flows also creates difficulties for individuals. On the one hand, the Internet has given individuals a greater direct involvement in the transborder transfer of their personal data than ever before. On the other hand, regulation has become more complicated and less transparent, and thus less understandable for individuals. For example, many transborder data flows are conducted based on the consent of the individual, but there is growing concern that individuals may not understand what they are consenting to, and that they may not have a meaningful opportunity to refuse consent. The greater use of cloud computing technologies also means that it will become increasingly difficult for individuals to exercise their rights with regard to data stored in other countries. (†1657)
cross-border data flow (p.26): However, geography will continue to play a role in the regulation of transborder data flows, ... There will always be cases where individuals become concerned about the processing of their personal data outside the borders of their country, based, for example, on a perceived risk of access to the data by foreign law enforcement, the chance of a breach of data security, or some other potential danger. Data controllers may also prefer to keep data within a particular region, and some cloud computing service providers already grant customers the option of keeping data within a national or regional ‘cloud’. Thus, the market for data processing services, driven by demand from both data controllers and individuals, will increasingly allow them to choose whether to restrict the transborder transfer of their personal data. Geography will also remain important with regard to law enforcement access to data, since more and more governments are likely to demand that entities offering communications in their countries also maintain communications equipment there, in order to facilitate such access. (†1658)
