THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
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ANALYSIS OF THE CONFLICT BETWEEN DATA SOVEREIGNTY AND
LONG-ARM JURISDICTION
Wang Cong
Doctoral Student at the University of World Economy and Diplomacy,
Tashkent 100174,Uzbekistan
Suqian University, Suqian 223800, China
https://doi.org/10.5281/zenodo.16152543
Abstract:
Data sovereignty and cross-border data flow governance have
become key issues in the global digital age. This article analyzes the theoretical
divisions and practical conflicts between data sovereignty and data freedom. On
the one hand, the theory of data sovereignty extends from traditional
sovereignty to technological sovereignty, emphasizing the state's jurisdiction
over data; on the other hand, the theory of data freedom has been alienated in
practice into the long-arm jurisdiction implemented by the United States and
Europe through the Cloud Act and GDPR, forming a new type of digital
hegemony. Research shows that the practices of various countries are divided
into two models: the "indirect governance" of the European Union and the
"direct control" of emerging countries, and there is a trend of mutual learning
and integration. In the face of governance fragmentation caused by long-arm
jurisdiction, countries need to build a data governance system that balances
security and development, strengthen data cooperation through various
innovative measures, and promote orderly flows while maintaining data
sovereignty.
Keywords:
Data sovereignty long-arm jurisdiction cross-border data flows
global data governance GDPR
Introduction
In the digital age, data has become a national strategic resource and a core
element of global competition. In the formulation of rules for cross-border data
flows, the international community has gradually divided into two camps: "data
sovereignty" and "data freedom", forming a complex pattern of theoretical
opposition and practical conflict. Countries represented by China and Russia
advocate data sovereignty and emphasize the jurisdiction and security control of
data by the state; Europe and the United States extend domestic data rules to
foreign countries through the "long-arm jurisdiction" mechanism, alienating
"data freedom" into a new tool of digital hegemony. This opposition is not only
reflected in the theoretical level, but also profoundly reshapes the global data
governance practice. In this context, exploring a governance path that balances
security and development has become a common issue for all countries.
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Analysis and results
1. The conflict between data sovereignty and data freedom
The legal regulation of cross-border data flow has become a core issue in
global digital governance, and its theoretical controversy has always revolved
around a fundamental question: What kind of relationship should data and
sovereignty maintain in the digital age? The answer to this question has
differentiated into two completely different theoretical propositions - the "data
sovereignty theory" that emphasizes state control and the "data freedom theory"
that advocates free flow. These two theories not only represent the difference in
the understanding of the nature of data, but also reflect the strategic orientation
and value stance of different countries in the digital field.
1.1 Data sovereignty theory: the extension and evolution of traditional
sovereignty in the digital age
The classic concept of sovereignty has become the cornerstone of the
modern international order after the establishment of the Westphalian system.
When Internet technology gave birth to the virtual "fifth space", a fundamental
question arose: Can the sovereignty principle of the real world be applied to
cyberspace without physical boundaries? Data sovereignty theorists gave a
positive answer. [1] They believe that although data exists in the form of bits, its
generation, storage and processing always rely on physical infrastructure, and
these facilities must be located within a specific territory. Just as cyber
sovereignty is the projection of traditional sovereignty in cyberspace, data
sovereignty is the embodiment of sovereignty in the data field. [2]
Early discussions on data sovereignty were often intertwined with network
sovereignty. In 2020, the EU successively released three documents, including
the European Data Strategy, proposing the concept of "technological
sovereignty", pushing the theory of data sovereignty to a new level. [3] The
proposal of technological sovereignty reflects the maturity of the theory of data
sovereignty, which has evolved from the initial assertion of jurisdiction to a
systematic theoretical framework covering technology, rules, and values. This
evolution shows that data sovereignty is not a static concept, but a dynamic
system that is constantly enriched with the development of technology. [4]
1.2 Data Freedom Theory: The Paradox of Ideal and Reality
In sharp contrast to data sovereignty theory is the "data freedom theory"
that originated from the utopian thought of the early Internet. The prototype of
data freedom theory can be traced back to the "Declaration of the Independence
of Cyberspace" published by John Barlow in 1996, which declared that
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"cyberspace is not within your borders." Early network theorists Johnson and
Post proposed that the decentralized nature of cyberspace enables it to
spontaneously form a legal order independent of real sovereignty. This view is
based on technological determinism, believing that code is law and that the
governance of cyberspace should be dominated by the technical community
rather than the government. At the economic level, data freedom theory is
supported by neoliberal theory. [5]
The fundamental contradiction facing the theory of data freedom is that the
"de-sovereignization" it advocates needs to be achieved through legislation by
sovereign states. When the United States passed the "Cloud Act" to extend its
data jurisdiction beyond its borders, it was actually promoting anti-sovereignty
ideas by sovereign means. This "self-denial" has led to the alienation of the
theory of data freedom into a tool of digital hegemony in practice.
The confrontation between data freedom and sovereignty is essentially a
conflict of different values. The United States regards data mainly as an economic
asset, the European Union emphasizes its relationship with human rights, and
China attaches importance to the relationship between data and national
security. These differences are due to their respective historical traditions and
actual national conditions.
The debate on data sovereignty and freedom is not just a theory, but directly
shapes the global data governance landscape. To understand this theoretical
division, we need to grasp three key points: [6]
First, both theories have their rationality and limitations. Completely
denying sovereignty may lead to digital anarchy, while absolutely emphasizing
sovereignty may stifle innovation vitality. The ideal model should be to find a
dynamic balance between the two.
Second, the choice of theoretical position is closely related to the stage of
national development. Digital powers tend to allow free flow to expand their
influence, while latecomers need more sovereign barriers to cultivate local
industries. This difference makes data governance a new battlefield for
international competition.
Finally, theories are interpenetrating in practice. The European Union has
both maintained data sovereignty and established global influence through
GDPR; while China insists on data sovereignty, it is also piloting measures to
facilitate cross-border data flows in free trade pilot zones. This convergence
foreshadows a complex landscape for future data governance.
2. Practical expression: two paths to achieve data sovereignty
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In the process of transforming theory into practice, data sovereignty
presents two typical paths to achieve it: one is the "indirect protection of rights"
model represented by the European Union, which emphasizes guiding market
self-discipline through high-standard legislation; the other is the "sovereign
direct participation" model represented by China, Russia and other countries,
which directly intervenes in data governance through mandatory regulations.
These two paths reflect the differences in different legal traditions and
governance concepts, but both successfully bring virtual data into the
jurisdiction of national sovereignty.
2.1 EU model: indirect governance based on rights protection
The EU's data governance system is built on a profound tradition of rights
protection. Its General Data Protection Regulation (GDPR) has pioneered an
innovative path of "realizing sovereignty through private rights". This
mechanism includes three key designs: high-standard legislation to establish
behavioral norms, diversified compliance mechanisms, and a hierarchical
regulatory system. The subtlety of this model lies in the fact that state power is
hidden behind the rights protection framework, and market players are guided
to independently realize their sovereign will by setting the rules of the game. [7]
The case of the EU's fine of 746 million euros on Amazon in 2021 shows that this
"light-touch regulation" can also produce a strong deterrent effect.
2.2 Mandatory localization model: direct manifestation of sovereign
powe
r
Unlike the EU's indirect governance, many countries choose to directly
exercise sovereign power through data localization storage requirements. This
model presents diverse characteristics in legislative techniques and
implementation mechanisms. From the perspective of legislative genealogy,
there are strict types in all fields, such as Russia; there are types that focus on
key areas, such as China; and there are types that regulate specific industries,
such as Australia. From the perspective of the law enforcement toolbox,
countries have developed distinctive law enforcement methods to implement
localization requirements. For example, China adopts technical review,
establishes a cybersecurity review system, and conducts data security
assessments on companies listed overseas; India uses economic leverage to
require payment data to be processed domestically, otherwise the payment
license will be revoked; France adopts judicial deterrence. [8]
2.3 Comparison of models and convergent development
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The two paths have their own advantages in terms of implementation effect:
the EU model is more adaptable to global business needs, and although the
compliance costs of enterprises are high, market expectations are clear; the
localization model can quickly respond to national security concerns, but may
increase corporate operating costs. Interestingly, in recent years, there has been
a trend of mutual learning and integration: the EU strengthens the sovereignty
element, and Article 48 of the GDPR explicitly refuses to enforce foreign court
rulings that conflict with EU law, which is essentially a declaration of sovereignty.
The Data Governance Act requires that specific public interest data must be
processed within the EU. The hybrid model is also gradually emerging. Saudi
Arabia adopts the "data classification + geographic mirroring" strategy: original
data must be stored domestically, but overseas backup is allowed; data in
sensitive industries such as finance is strictly localized.
This convergence phenomenon shows that in global data governance
practices, neither pure free flow nor absolute sovereign control can stand alone,
and countries are exploring a "third way" to balance security and development.
3. Practical alienation: the paradox of data freedom and long-arm
jurisdiction
The theory of data freedom has shown obvious alienation in practice: the
theory that originally advocated "de-sovereignty" has eventually evolved into a
tool for some countries to expand their extraterritorial jurisdiction. The most
typical manifestation of this alienation is the data long-arm jurisdiction
mechanism established by the United States and the European Union through
domestic legislation, which is essentially "sovereignty expansion" in the name of
"data freedom".
3.1 Legal mechanism of long-arm jurisdiction
Jurisdiction in traditional international law is mainly based on the
territorial principle and the personal principle. However, in the field of data, the
United States has reconstructed the basis for jurisdiction through the "data
controller standard". [9] The new rule established by the 2018 "Clarifying
Lawful Extraterritorial Use of Data Act" (CLOUD Act) is that as long as the data
controller (such as a technology company) is subject to the jurisdiction of the
United States, the US government has the right to retrieve the data regardless of
where it is actually stored. This is equivalent to shifting jurisdiction from
geographical space to legal relationship space.
3.2 Conflict of rules and sovereignty confrontation
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In order to deal with long-arm jurisdiction, many countries have enacted
blocking laws. China's Anti-Foreign Sanctions Law explicitly prohibits the
implementation of discriminatory restrictive measures against foreign countries.
The revised version of the EU Blocking Regulation includes the US Cloud Act in
the appendix. Russia stipulates that foreign data requests must be reviewed by
Russian judicial authorities. Long-arm jurisdiction has given rise to counter-
technical measures. China promotes the de-"IOE" (IBM, Oracle, EMC) of IT
facilities in the financial, telecommunications and other industries. The EU GAIA-
X project builds an independent cloud infrastructure. Russia's Runet Act
establishes a national domain name resolution backup system.
The institutional root of this alienation phenomenon is the deviation of
value goals. The original pursuit of data freedom theory is to break down
sovereignty barriers, but in practice it has been alienated into the United States
to maintain the global competitive advantage of technology companies and the
EU to expand the scope of influence of regulatory standards. Both have deviated
from the original intention of the theory and become digital geopolitical tools.
This alienation phenomenon foreshadows the fundamental dilemma facing
global data governance: when the theory of data freedom is alienated into a tool
for expanding jurisdiction, it actually exacerbates rather than eliminates the
division of digital space. The 2021 United Nations Conference on Trade and
Development report pointed out that the world has formed three data
governance circles centered on China, the United States and Europe, each of
which implements different jurisdictional rules. This state of "digital
fragmentation" is far from the vision of interconnection pursued by the founders
of the Internet.
Conclusion
The theoretical division and practical conflict between data sovereignty and
long-arm jurisdiction profoundly reflect the tension between national
sovereignty and globalization in the digital age. Starting from the traditional
sovereignty principle, the theory of data sovereignty continues to expand its
theoretical boundaries through new forms such as technological sovereignty;
while the concept of data freedom has been alienated in practice into a tool for
some countries to expand their extraterritorial jurisdiction. This opposition has
not only caused the fragmentation of global data governance, but also triggered
multiple games among countries at the legislative, judicial and technical levels.
The international order in the digital age is being reconstructed, and the
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dispute over data sovereignty will become an important dimension of this
process. Only by respecting the differences in the development stages of various
countries and adhering to the cooperative spirit of multilateral consultation can
we achieve the co-governance and sharing of digital space and ultimately build a
community of shared future in cyberspace.
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