Digital Extraterritoriality: A Comparative Law Perspective

This chapter argues that the competing American ballot-box and European fundamental rights paradigms of regulatory law have marked the specific domain of digital regulation. These regulatory paradigms and their associated state interests are projected extraterritorially through the market power of Silicon Valley, on the one hand, and the privacy rights of EU regulators, on the other hand. This chapter also analyses recent developments in the EU, where there is now a state effort to create digital markets and, relatedly, an emerging preference for some data localization to promote both fundamental rights and economic and security interests. In China, we observe the emergence of a layered form of digital regulation: at the deepest level is state control of digital infrastructure, industry actors, and civil society users; layered on top is an attempt to improve the position of consumers through both digital platform regulation and competition law applied to the largest oligopolies. As a result, the earlier Chinese strategy of data localization is now complemented by a bureaucratically controlled form of extraterritorial engagement.