At the conclusion of World War II, the Bretton Woods Framework created international institutions to preserve economic stability and political stability for peace.[1] Designed at a critical point in history, this Framework was organized around the core principles that international economic cooperation built around more goods produced, more jobs, and more trade would lead to higher standards of living and enduring peace for all.[2] The resurrection of global free trade married with preservation of government sovereignty and cultural heritage carried the Framework through this critical time.
Today, as the 21st Century unfolds, we arrive at another historic inflection point. To equitably provide a better standard of living and return to enduring peace, a new, revised Framework that incorporates core principles for human thriving is necessary. In this insight, I will argue that the sustainable production, jobs, and trade across the globe for such thriving requires one of those core principles to be individual privacy . This reflection discusses designing an international standard to re-balance the legal structures found within and between nations and better deliver justice in the global economy by protecting individual security.[3] Individual security – the freedom to formulate one’s identity privately – provides the ‘atoms’ of the governmental sovereignty and cultural heritage that the Bretton Woods Framework wrestled with. This reflection explores reasons why the construction of a standard that protects individual security should emerge from nations with democratic legal norms. Otherwise, the foundation for national sovereignty and cultural traditions risks erosion into a winner-take-all struggle for one dominant way of life at the sacrifice of the unique individual creativity that underpins vibrant economic success and human thriving.
The global economy that emerges from international standards is shaped by the interconnectedness of individuals, market actors, nations, and international institutions.[4] This global network is at a pivot point whereby innovation in technology has produced adverse effects on individual security, defined here as the selective privacy to form one’s identity. From sky-rocketing depression to political tribalism, savaged reputations to degrading human trafficking, the capacity for individuals to thrive is under duress.
The challenge to nations is to respond to these effects through legal changes.[5] Nations must confront this challenge because global justice requires an equal opportunity to participate as a member of the shared global economy, and participation requires formation of the individual participant.[6] In other words, this equal opportunity depends on persons having the security in their privacy to discern their core principles internally and step into the global market. To effectuate this opportunity, the legal norms must adjust to address market actors exploiting the benefits from mining information and monitoring communication technology at the expense of the individual’s privacy to confidently form their identity on firmly held values.[7] An urgency to these adjustments has emerged because the risk of larger social disruptions through individual unrest is rising.
All of these factors point to a need for a new social contract that protects the private moments when an individual forms their identity. Nations need to reimagine their social contracts with their citizens because they must deliver a regulatory structure that addresses technology’s adverse effects on identity formation.[8] The basic duty of a sovereign is to safeguard well-being, from physical to emotional to spiritual. A nation fundamentally must construct a social order that provides mutual benefit among its citizens while respecting the dignity of the individuals under its care. As nations regulate the protection of individual security, new legal norms for international institutions will emerge by which individuals will evaluate access to and protection of their dignity within the global economy for citizens.[9] A nation will prove successful – or not – based on its regulatory adaptation at this inflection point. In other words, legal adaptation to the digital world will determine a nation’s future development opportunities and perhaps even its citizenry for generations.
Just opportunity for citizens to participate in the global information economy necessitates that nations include individual privacy as part of their foundational sovereign duty. To succeed in providing their citizens justice across the global network through such equitable access to the global economy, a nation must shift its vertical legal framework to account for individual security. Additionally, international institutions must devise a global standard with transparent measurements that ensure nations are adequately protecting citizens from the trade of identity.[10] Beyond internet usage, an adequate legal standard must encompass a broad range of behaviors monetizing identity within the global information economy, including telecommunications, artificial intelligence, facial recognition, and more.
To devise a standard that measures equitable access to and equitable treatment across the global economy for individuals, this reflection suggests that international institutions turn to new metrics for telecommunications, labor, competition, and national security. Like Most Favored Nation and National Treatment, nations and international institutions must design and implement an equivalent norm for a sovereign actor in the digital global economy that reflects adequate protection of an individual’s security in identity formation. Consideration of such an Equitable Network Standard as an international norm in turn will permit trade to respond with efficient, sustainable economic practices, similar to standard practices around shipping liabilities. An Equitable Network Standard lays a foundation for the digital economy to bloom and benefit populations globally. A fundamental regulatory shift in the vertical frameworks of nations and modern metrics for the international community to account for individual security will move the global economy towards global justice in the face of modern technology.[11]
This insight has been broken into sections. Following this introduction, I present a brief description of the terms as I am discussing them here. Then I described the historical support for reaching a critical inflection point for global justice and individual security. In the next section, I discuss realigning to secure a social contract that protects individual security from trade in identity. The following section raises the reasons for and the challenges to an Equitable Network Standard that delivers selective privacy through equitable access to and appropriate treatment within the global network. Such a standard may seek a minimum level of privacy and data controls for individuals across national borders. Next, I review the four major areas where metrics to support an Equitable Network Standard could arise and support justice for individuals in the global economy. In that discussion, I illustrate how an Equitable Network Standard could shift the law in telecommunications, labor, antitrust and national security. The conclusion returns to the urgency of the inflection point and urges democratic leadership on the next dominant social contract, bringing the analyses together.
[1] See International Financial Organization, Bretton Woods Documents – Riddle Comments on Bretton Woods Proposals – Comments, 1849648, WB IBRD/IDA STAFF-09-02, World Bank Group Archives, Washington, D.C., United States.
[2] See President’s Special Message to the Congress urging adoption of the Bretton Woods proposals for an International Monetary Fund and International Bank for Reconstruction and Development, Bretton Woods Documents – Roosevelt Address to Congress on Bretton Woods – February 20, 1945 – United States Treasury – Washington, DC, 1849657, WB IBRD/IDA STAFF-09-02, World Bank Group Archives, Washington, D.C., United States.
[3] See Frank J. Garcia, Global Justice and International Economic Law: Three Takes, 184, 193-95 Cambridge University Press (2013).
[4] See Mathias Risse, A Précis of on Global Justice, with Emphasis on Implications for International Institutions, 54 B.C.L. Rev. 1037, 1039-40 (2013), http://lawdigitalcommons.bc.edu/bclr/vol54/iss3/.
[5] See Frank J. Garcia, Restoring Trade’s Social Contract in the United States, 1-3 (Working Paper, Feb. 28. 2022); Frank J. Garcia, Convergences: A Prospectus for Justice in a Global Market Society, 13 Manchester Journal of International Economic Law 128, 129-30 (2016); Kara Frederick, Combating Big Tech’s Totalitarianism: A Road Map, Backgrounder No. 3678, The Heritage Foundation (Feb. 7, 2022), 1, 2, http://report.heritage.org/bg3678; Marie McAuliffe and Binod Khadria, World Migration Report 2020 7-8 (2020).
[6] See Mathias Risse, A Précis of on Global Justice, with Emphasis on Implications for International Institutions, 54 B.C.L. Rev. 1037, 1038 (2013), http://lawdigitalcommons.bc.edu/bclr/vol54/iss3/.
[7] See Mathias Risse, A Précis of on Global Justice, with Emphasis on Implications for International Institutions, 54 B.C.L. Rev. 1037, 1052 (2013), http://lawdigitalcommons.bc.edu/bclr/vol54/iss3/.
[8] See Frank J. Garcia, Restoring Trade’s Social Contract in the United States, 1-3 (Working Paper, Feb. 28. 2022).
[9] See Mathias Risse, A Précis of on Global Justice, with Emphasis on Implications for International Institutions, 54 B.C.L. Rev. 1037, 1040-41 (2013), http://lawdigitalcommons.bc.edu/bclr/vol54/iss3/8.
[10] See Gerald Casper, The Concept of National Citizenship in the Contemporary World: Identity or Volition?, Bucerius Law School, 1-3 (2008); Frank J. Garcia, Global Justice and International Economic Law: Three Takes, 184, 193-95 Cambridge University Press (2013).
[11] See Dirk Messner, World Society – Structures and Trends, 40-42 (Paul M Kennedy et al., Global Trends and Global Governance (Pluto Press) (2002)); Frank J. Garcia, Globalization’s Law: Transnational, Global or Both?, Boston College Law School, Research Paper 384 (Dec. 4. 2015) http://ssrn.com/abstract=2695561.
