FEATURE
APART AND TOGETHER
Recent Changes in EU and US Regulations Impacting Submarine Cables BY ANDREW D. LIPMAN, ULISES R. PIN AND AISLINN R. KLOS
W
hen the first trans-Atlantic submarine cable was laid between Newfoundland and Ireland in 1858, the project used two ships, the USS Niagara and the HMS Agamemnon. This undertaking by a U.S. vessel and a British vessel represented something familiar to submarine cable developers today: international cooperation. It also occurred in conditions unfamiliar to modern practitioners, for there was not a telecommunications regulatory agency in sight. Indeed, the U.S. Federal Radio Commission would not be formed for another seventy or so years. Now, over a century and a half after that first cable bridged Europe and North America, international cooperation has become staggeringly byzantine due to intricate webs of laws developed to organize our modern network of subsea cables that handles 99% of international data traffic. Some of these regulations are singularly founded in the authority of lone states and others are the result of careful multilateral frameworks. Understanding all of them is critical to anyone operating a submarine cable – and that can be a daunting task. Lately, steps towards unification for regulations, particularly in the European Union (EU), give hope for simpler regulatory requirements for trans-Atlantic submarine cable
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routes. Nevertheless, today’s politics influence investment in, and deployment of, cable networks. Certain countries, including the United States, the United Kingdom, and several EU members, are shifting towards economic nationalism, due to anxieties about terrorism, foreign policy, and, in some cases, promotion of the local economy. These shifts implicate submarine cables. Take, for instance, recent debate in the United States about extending the Jones Act to ships laying and repairing cables; that is, requiring such ships to be built in the United States and to have a majority of their crew be U.S. citizens. While cooler heads prevailed by explaining that this would compromise protection of critical submarine cable infrastructure, this is but one example of how regulation and the specter of regulation can haunt the seas. This article examines the northern trans-Atlantic regulatory environment by first addressing a point of major convergence, national security reviews, and then discussing areas where the United States and the EU are pulling away from one another, net neutrality and data privacy. Unsurprisingly, whether going in the same or different directions, in all cases these changes make the global regulatory space more and more complicated.