Legal Evaluation for Security Exception Claims About the Cross-Border Transfer of the Korean Map: A Case of Google

Abstract

Google, a U.S. company, has made repeated requests for the cross-border transfer of the Korean map. The requests have been rejected by the South Korean government, citing security concerns for satellite imagery. This article examined the legality of this rejection based on the Security Regulations on National Spatial Information of South Korea. The legal evaluation showed that the Korean government does not have the legal authority to regulate the online provision of satellite imageries by U.S. companies. Strict regulations of satellite imagery services, which are not specified in the current domestic law, create uncertainties for domestic and foreign companies providing online mapping services. This article offered legal insights on how to fundamentally address the deep-rooted stumbling block raised in the 2020 U.S. Trade Barrier Report concerning the cross-border transfer of the Korean map.

Keywords

Korean map cross-border transfer security exception Google legal evaluation

Introduction

Online platform services such as Google have become a global business model representing the digital economy. Online digital platforms are driving the growth of digital trade because they connect service providers and consumers around the world. In this situation, the United States, which actively advocates for the liberalization of digital trade, has signed several regional trade agreements (RTAs) to establish a new trade norm that defends the position of its own information technology (IT) companies. RTAs, such as the Korea–U.S. Free Trade Agreement (KORUS FTA), Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and U.S., Mexico, and Canada Agreement (USMCA), do not allow discrimination between domestic and imported digital products, against national treatment (NT) or the most favored nation (MFN) treatment obligation.

Google, a US company, has made repeated requests for the cross-border transfer of the Korean map. The requests have been rejected by the South Korean government, citing security concerns such as satellite imagery of domestic military facilities. U.S. complaints, which are still being raised, are officially documented in the 2020 Trade Barrier Report (U.S. Trade Representative [USTR], 2020). In South Korea, due to the armistice-created border with an enemy state, it is essential to ensure critical military facilities are not shown on the map. If such an approach is too broad and comprehensive to accommodate the rapidly changing IT landscape, it will become a regulatory burden. In the international community, developed countries, such as the United States, some European countries, and Japan, have expressed great concern about data localization limiting the free movement of data across borders (Cory, 2017). They argue that data localization measures are trade barriers (Meltzer & Lovelock, 2018; Phillips, 2018). Previous research has reported on the productivity performance of industries utilizing cross-border transfer data between South Korea and other countries such as the United States (Ferracane et al., 2019; Meltzer, 2015).

Various studies have pointed out the contradictions between data localization measures for the South Korean map and South Korea’s data utilization policy that emphasizes free movement of data across borders (Aaronson & Leblond, 2018; Sen, 2018). Government ministries, academia, and companies present opposing opinions on the cross-border transfer of the South Korean map. The conflicts and confusion among stakeholders arise due to the different interpretations of the laws and regulations on the issue (Location Newsletter, 2020). It is necessary to judge whether the rejection of Google’s request is backed by the constitution and statutes. Such legal evaluation will allow the Supreme Court to act as an active watchdog to ensure relevant administrative actions according to the constitution. However, many policies, such as the cross-border transfer of the South Korean map, can be extraordinarily difficult to bring before a court since it is very costly for the wide array of involved players to track every decision an agency makes. Furthermore, it is very hard for the judiciary to correct the systemic failures of an administrative decision through court proceedings since the agency records for map data localization are highly technical and complicated scientific. Moreover, numerous scholars have highlighted that the many attempts by actors to control arbitrary law enforcement can trigger conflict with South Korean frontline enforcement officials (Biber, 2008; Stephenson, 2006).

The mapping industry can contribute significantly to the national economy and society because it is a key tool in developing artificial intelligence (AI), such as self-driving cars¹ in the Fourth Industrial Revolution era (Schwab, 2017). A legal evaluation can offer insights and be a fire alarm tool that can bring about substantive changes in ensuring the global competitiveness of the domestic mapping industry. A considerable number of studies on topics such as environmental impact assessment and building permits have involved the legal evaluation on regulatory decisions in South Korea (González Quintero, 2010). However, these studies do not provide any empirical legal evaluation of administrative decisions that relate to the cross-border transfer of the South Korean map. To carry out such legal evaluations, it is necessary to first conduct an objective assessment of domestic regulations that concern the cross-border movement of the South Korean map and pinpoint the problem.

The South Korean government has controlled the mapping of public infrastructures like roads, airports, and railways since 1950 because they were judged central to national security. However, such control systems have been increasingly ineffective as new systems and services, such as Google maps, that allow people to access innovative mapping infrastructures have been developed. Moreover, rapid changes in public awareness of online map services have rendered many existing regulations on map service irrelevant and redundant (Chung, 2018; Greenleaf & Park, 2012; Yoon, 2018). The export of South Korean maps as an exercise of national sovereignty power must be made legitimately according to written law. This article aims to ascertain whether the Korean government has complied with the principles of a strict interpretation of the written law concerning the cross-border transfer of South Korean maps.

This article has five sections. The first section introduces Google’s request for a cross-border transfer of the South Korean map. The second section explores the connection between the map’s role and the core technology that underlies AI (such as self-driving cars) in the Fourth Industrial Revolution. The third section begins by presenting international norms on data transfer (KORUS FTA), which serve as written evidential documents for evaluating the legality of security exception claims concerning the cross-border transfer of the South Korean map. The fourth section compares the different regulations on domestic companies and Google based on the Security Regulations on National Spatial Information. The fifth section proposes the application of the same regulations to domestic and international companies.

The Case of Google

The United States has a great competitive advantage in the field of IT because it is home to many global companies that lead the digital market. Alphabet (Google’s parent company), Amazon, Apple, Facebook, and Microsoft are five of the world’s most valuable listed firms (Leeward Capital Management, 2019). Google’s internet search service² has the highest number of users worldwide (Robertson et al., 2018). The most notable criticism on Google is Googlization or Google Annexation (Vaidhyanathan, 2012). Google offers a universally accessible online service with a vast amount of knowledge accumulated from the web, books, and databases. Thus, Google influences an individual’s information, habits, and opinions. Googlization significantly affects human interests and actions in many subtle ways (Sharon, 2016). Vaidhyanathan (2012) states that we have become far too dependent on an arrogant, barely regulated company that gathers and stores tonnes of personal information about us. Similarly, several scholars pointed out that current law underappreciates the risk of predatory pricing by the titan in e-commerce (e.g., Amazon) that may prove anticompetitive (Khan, 2016). However, there is no reason to stop the consumers’ right to access to state-of-the-art services. If the status quo persists, self-driving cars with Google Maps will soon be able to race on roads around the world. Google maps will also affect the whole world through global surveillance and infrastructure.

In 2014, Nobel laureate Jean Tirole used the two-sided market theory to mathematically prove that the expansion of the business area of digital platform companies, such as Google, aid consumer welfare (Rochet & Tirole, 2014). He argued that companies should not be regulated based on the traditional antitrust theory. For instance, Google’s YouTube service has contributed to creating a global star like Psy from South Korea. The Korean wave, where Korean dramas are consumed worldwide, is a major example of the increase in consumer welfare due to YouTube.

Google Maps is a global internet map platform and one of the services with the most visitors in the world (Nyo & Hein, 2019). In 2016, Google asked the South Korean government to allow the cross-border transfer of the South Korean map (1:5000 scale). The government’s position on this request is driven by two conflicting values: information sovereignty and global information sharing. It is possible to transfer the map abroad only with the consent of the relevant ministries.³ The government (consultative committee consisting of representatives of relevant ministries) stated that it could transfer precise maps (1:5000 scale) to Google if key security facilities exposed are blurred. Google found this caveat unacceptable because its top priority is providing the best service to consumers (Tribune, 2016; Yoon, 2018), and the map was not transferred.

Complaints about the disallowance policy of South Korea are documented in the 2013 U.S. Trade Barrier Report without any modifiers or filtrated expression. The National Trade Estimate Report on Foreign Trade Barriers (USTR, 2020) states that restrictions on the export of location-based data have led to a competitive disadvantage for international suppliers offering innovative interactive services such as traffic updates and navigation directions. It stated that:

Korea is the only significant market in the world that the United States Trade Representative (USTR) is aware of maintaining such restrictions. Korea has never approved a licence to export location-based data. US stakeholders report that Korean officials are linking such approval to individual companies’ willingness to blur satellite imagery of Korea on their global mapping service sites (see Figures 1 and 2). Korean officials have expressed an interest in limiting the global availability of high-resolution commercial satellite imagery of Korea. It is unclear how limiting such availability through specific services (e.g., online mapping) addresses the general concern since high-resolution imagery, including for Korea, is widely available as a stand-alone commercial product (and often free of charge, see Figure 3).

Figure 1.

Comparison of Korean aerial photograph service and Google’s satellite imagery of the presidential office of South Korea (marked with *). Panel A: Korean aerial photograph service (captured from the domestic Naver search engine) with the presidential office disguised as a mountain due to national security (not open to the public). Panel B: Google’s satellite imagery shows real feature for presidential office without security treatment. Note. The Korean government has proposed a condition to allow cross-border transfer of Korean map if the presidential office shown in Google satellite images are disguised, as shown in the Korean online service above.

Figure 2.

South Korean map service with location of presidential office marked with *. Note. The presidential office is classified as a national security target facility and is disguised as a contour (mountain area) for confidentiality (not open to the public).

Figure 3.

Google’s satellite imagery of the presidential office marked with *. Panel A: United States. Panel B: North Korean Worker’s Party headquarters. Note. Google claims that it has never operated security treatment in any country in the world due to the company’s policy of providing the latest and best quality imagery services. Unlike other countries, the South Korean government’s condition to disguise military facilities is to censor foreign companies’ services that provide information to users.

The Role of Online Maps in the Fourth Industrial Revolution

The map as location data will serve as the hub for connecting large data sets (Elevelt et al., 2019). Unmanned autonomous vehicles such as self-driving cars and drones are innovative AI products representing the Fourth Industrial Revolution. The use of self-driving vehicles such as autonomous drones, unmanned tractors, unmanned air fighters, unmanned ships, unmanned submarines, and autonomous robots will soon be commonplace (Harrison & Luna-Reyes, 2020). A human driver can navigate using a map with relatively low positional accuracy but autonomous vehicles cannot. They need up-to-the-minute maps of every conceivable roadway to move. The map, in turn, requires a centimeter-level accuracy to identify traffic lane subdivision and road slope, at night or in bad weather (Luo et al., 2019). The map in the Fourth Industrial Revolution is perceived as a product changing paradigm different from electronic maps of the information era (Third Industrial Revolution). It is a tool that can recognize the surrounding situation (context awareness) and has the characteristics of a platform that can maximize the added value of unmanned vehicles. Global companies are competing to build their map to speed up the commercialization of AI-powered autonomous cars. Whoever owns the most detailed and expansive version of these maps could be worth billions of dollars (Liu & Khattak, 2020).

In building high-precision digital maps, it is important to collect highly accurate regional data. Google is the global leader in regional mapping with data collected through its Google Map and Google Earth services. Google is building big data for diverse countries through a road driving test of self-driving cars (Marletto, 2019). It also collects local data for the movement of autonomous cars through Google Street Maps. Peter Norvig, Google’s head of research, told The New York Times that Google Street View (see Figure 4) is the secret component behind Google’s self-driving cars. He averred that it is a hard problem for computer vision and AI to pick a traffic light out of a scene and determine whether it is red, yellow, or green. However, it is trivially easy to recognize the color of a traffic light that one already knows is there. Street View is the product of the mapping exercise that makes self-driving cars work well (Leon & Quinn, 2019; Lin et al., 2020).

Figure 4.

Google Street View of South Korean presidential office (marked with *). Note. It shows an example of Google collecting big data for road testing of self-driving cars in worldwide countries.

In 2018, Nikkei commissioned a Japanese patent analysis company (Patent Result) to investigate patent competitiveness for self-driving cars (Okoshi & Terai, 2018). Google scored 1,385 points in the key technology for the autonomous driving category, while Toyota came in second place with only 204 points. Hyundai motors of South Korea ranked 35th with 107 points in patent competitiveness. Among Korean companies, Hyundai Motors was the only one among the top 50. The driving force behind Google’s breakthrough is the AI mapping technology used to identify and determine vehicle, human movements, and traffic conditions on behalf of the driver. As the era of self-driving realistically approaches, the joint alliance between competitors and other industries—automobile makers and IT companies—to seize the initiative is progressing rapidly. Google Waymo signed a deal in 2019 with Renault and Nissan to develop self-driving cars and trucks for use in France, Japan, and other countries throughout Europe and Asia. It is the first agreement that Waymo signed to provide its technology and services to automakers to build their self-driving vehicles (LeBeau, 2019).

The International Norms on Data Transfer

The World Trade Organization (WTO) is responsible for the international trade of goods and services through the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). The international norms for digital trade do not yet exist in a globally agreed-to form, including regulations on cross-border data movement. At the 2019 World Economic Forum in Davos, Switzerland, 76 countries (including the United States, China, European Union, and Japan), who account for more than 90% of world trade, confirmed their intention to initiate WTO negotiations on e-commerce. GATS stipulates that member states comply with the MFN treatment as general obligations and NT as a specific obligation. While the MFN ensures equal opportunities for competition among exporting countries, NT removes trade barriers by ensuring equal competition conditions between domestic and imported products within the importing country. WTO member states can be exempted from the MFN obligation, the core principle of the WTO, concluding an FTA in accordance with GATT Article 24 and GATS Article 5 (WTO, 2020). GATS takes a positive list method in which services subject to NT are listed in the schedule of specific commitments (WTO, 1991). In the GATS classification standard (W/120), online map could belong to the subfields of computer and related services (CRS) under business services or value-added services including online database and remote computing services under communication services (WTO, 1994), although there is no internationally established standard for which GATS classification category the online map service belongs. The CRS or value-added services, including online database, are representative areas (GATS/SC/48) in which the Republic of Korea has taken a position of being completely open to WTO member states through the Uruguay Round. In the Schedule of Specific Commitments of South Korea, the subservices listed as belonging to the CRS and value-added services, including online database, do not contain any restrictions on free market access and NT, and all are included in the free market opening (GATS/SC/48). In principle, concerning cross-border transfer of online map, the Korean government is prohibited from introducing and implementing new restrictions that are not consistent with GATS’ obligations to market access and NT.

The United States has actively pursued bilateral and multilateral negotiations to alleviate or eliminate data transfer restrictions in other countries. The U.S.’ position is to ensure the free movement of data across borders and remove restrictions on data transfer. The KORUS FTA came into force on March 15, 2012. Since then, the United States and South Korea have carried out six rounds of tariff cuts and eliminations, creating substantial new market access opportunities (KORUS FTA, 2011). It also has a separate provision for cross-border information flow that the parties seek to refrain from imposing or maintaining unnecessary barriers to the free flow of information across borders (Table 1). The KORUS FTA defines digital products as computer programs, text, video, images, sound recordings, and other digitally encoded products and produced for commercial sale or distribution, regardless of whether they are fixed on a carrier medium or transmitted electronically (Article 15.9). It is believed that online maps can be classified as digitally encoded products.

Table 1.

Comparison of Relevant Provisions in the KORUS FTA, CPTPP, and USMCA on Cross-Border Information Transfer.

The KORUS FTA Article 15.3: Digital products 2. Neither Party may accord less favorable treatment to some digital products than it accords to other like digital products (a) on the basis that: (i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party.
CPTPP Article 14.11 Cross-Border Transfer of Information by Electronic Means	USMCA Article 19.11 Cross-Border Transfer of Information by Electronic Means
2. Each Party shall allow the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.	1. No Party shall prohibit or restrict the cross-border transfer of information, including personal information, by electronic means if this activity is for the conduct of the business of a covered person.

Note. KORUS FTA = Korea–U.S. Free Trade Agreement; CPTPP = Comprehensive and Progressive Agreement for Trans-Pacific Partnership; USMCA = U.S., Mexico, and Canada Agreement.

The KORUS FTA (2012b) adopts a negative listing approach where, unless otherwise reserved, free market access is allowed to the partner countries. It guarantees NT (no discrimination against its citizens) and MFN treatment (no discrimination against third countries). KORUS FTA has a much greater impact than GATS in terms of the scope and effectiveness of market opening since it is technically quite difficult to predict services that will appear in the future market in advance and exclude them from the market opening targets. The Korean government’s position in view of opening up the market for the CRS or value-added services, including online database, remains the same in the KORUS FTA as at the time of the GATS negotiations (1991). The Korean government has not specified any current (Annex I) or future reservations (Annex II) for the digitally encoded products (KORUS FTA, 2012a, 2012c).

Current reservations describe the current Republic of Korea's domestic laws inconsistent with the obligations (nonconforming measures, pursuant to Articles 11.12 and 12.6) under the KORUS FTA, while future reservations indicate areas where the obligations under the Agreement will not apply in the future. The current reservation is a list of existing domestic regulations that are not in accordance with the obligations under the KORUS FTA and can be amended in the direction of more liberalization from the current regulations, but it prevents revisions in the direction of retreating the liberalized content. Future reservations refer to a list (areas not open to the FTA) for existing domestic regulations that more restrictive measures could be enforced in the future or where entirely new restrictive measures could be adopted.

In principle, according to the current or future reservations of the KORUS FTA, the Korean government cannot impose any new restrictions on market access and NT to foreign business operators such as Google. One could argue that the map requested by Google was not included in the scope of the concession of the Korean government because it was a service that was not familiar to the general public at the time of the KORUS FTA negotiation. In disputes based on GATT and GATS’ general exceptions, only one in 44 cases was won by the state claiming the exception (Public Citizen Foundation, 2020). In this respect, it is believed that there will be considerable limitations for the Korean government to renegotiate the reservation list due to technological advancement.

The CPTPP (2018) came into force on December 30, 2018, and on September 30 of the same year, the USMCA (2018) was concluded. Both agreements contain obligations to prohibit measures that would impede the free movement of data across borders. The CPTPP includes mandatory provisions that promote cross-border movement of data among member states and prohibits parties from adopting or maintaining a means of unjustifiable trade restriction. The USMCA Agreement between the United States, Canada, and Mexico also contains provisions similar to the CPTPP. Article 15.3 of the KORUS FTA provides clauses that neither Party may accord less favorable treatment to some digital products than it accords to others like digital products. Further, Article 14.11 of the CPTPP and Article 19.11 of the USMCA contain the parties’ regulatory obligation to implement the free transfer of information and impose further obligations to prohibit unjustifiable discrimination or a disguised restriction to prevent free movement of data.

The RTAs highlight on “member states” obligations to ensure the free movement of data. It is assumed that the United States will pay much attention to these issues in future trade negotiations. The U.S.’ position can also be identified through the National Trade Estimate Report on Foreign Trade Barriers, published by the USTR. The annual report shows that the United States sees data transfer barriers as trade barriers (USTR, 2020).

The KORUS FTA stipulates an exception chapter to the general rules (Table 2). The exception chapter seeks to ensure flexibility of the agreement by allowing the application of the agreement to be excluded in areas where the legislative and policy autonomy of the Party is required, such as security exceptions and the special domestic situation of the Party. These general exceptions have been set out in Article 20 of GATT and Article 14 of GATS to ensure the autonomy of State Parties over important matters such as national security and domestic regulations. The KORUS FTA stipulates the exception clauses in a way that it accommodates Article 20 of GATT and Article 14 of GATS.

Table 2.

Comparison of Relevant Provisions in the KORUS FTA and GATS on the Security and Domestic Exceptions.

The KORUS FTA Article 23.2: Essential security	General Agreement on Trade in ServicesArticle XIV bis: Security Exceptions
Nothing in this Agreement shall be construed: (a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or (b) to preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security or the protection of its own essential security interests.	1. Nothing in this Agreement shall be construed: (a) to require any Member to furnish any information, the disclosure of which it considers contrary to its essential security interests; or (b) to prevent any Member from taking any action which it considers necessary for the protection of its essential security interests: (i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
KORUS FTA Annex II, Schedule of Korea, p. II-KOR-8. State-Owned National Electronic/Information System	General Agreement on Trade in Services Article VI: Domestic Regulation
Korea reserves the right to adopt or maintain any measure affecting the administration and operation of any state-owned electronic / information system which contains proprietary information of the government or information gathered pursuant to the regulatory functions and powers of the government. Such measures shall apply to any other state-owned electronic/information systems that may be established in the future (KORUS FTA, 20^12d).	1. In sectors where specific commitments are undertaken, each Member shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner. 2. (a) Each Member shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Member shall ensure that the procedures in fact provide for an objective and impartial review.

Note. KORUS FTA = Korea–U.S. Free Trade Agreement; GATS = General Agreement on Trade in Services.

Legal Evaluation for Security Exception

Map Censorship for Military Facilities

Article 26.1 of the Security Management Regulations on Spatial Information (Security Management of Aerial Photo) of South Korea⁴ states that aerial photographs containing national security facilities and military facilities shall be kept confidential (not open to the public). South Korea’s domestic legislations do not provide specific regulations for national security target facilities and military facilities in commercial satellite images. In this case, provisions targeting aerial photos are applied to commercial satellite imagery.

The National Trade Estimate Report on Foreign Trade Barriers (2020) states that the United States is sensitive to South Korea’s national security concerns but does not agree with South Korea’s current policy concerning imagery. For instance, it is ironic that any South Korean can find a clear image of security facilities when accessing overseas services. Figure 5 is a satellite image of the Israeli Ministry of Defense provided by MapQuest (stylized as MapQuest), an American free online web mapping service. Various satellite image services besides Google provide similar information for security facilities. It is arbitrary law enforcement that satellite images found for free on the internet are protected as military secrets. Neupert found the interesting fact about the web map of South Korea. He did a thorough investigation of the country’s national map and found that many facilities and dozens of golf courses used by the South Korean army were deleted from the map (Neupert, 2015).

Figure 5.

MapQuest satellite image of the Israeli defense ministry (marked with *). Note. The satellite image of military facilities requested by the Korean government to be deleted are already widely publicized on the internet, so anyone in the world can easily find them even if one does not search Google Earth.

Based on this research, Professor Neupert published a booklet, Eighteen Secret Golf Courses. It is an artist’s book about censorship in South Korean maps. It contains maps of golf courses that cannot be found on South Korean maps. He points out that there is a plenitude of unrestricted satellite images freely and easily available (Google Maps, Nokia Here, Microsoft Bing Maps, Esri, MapQuest, and DigitalGlobe). It seems rather nonsensical to delete golf courses that can be easily found on commercial satellite services and have nothing to do with national security.

The locations removed from the South Korean map officially inform the enemy that they are military facilities. Anyone can easily find the security facilities by comparing the place deleted from the South Korean map with the same location in the unrestricted satellite image of other services. The Security Management Regulations for South Korean Maps let domestic mapping companies signify the exact location of military facilities in South Korea. This can be a fatal weakness in security because it provides the enemy with accurate location information on military security facilities. This procedure does not help national security at all.

Differentiated Regulation Between Domestic Companies and Google

If a regulation is necessary, it should be executed equitably regardless of whether it is a South Korean or U.S. company. For the cross-border movement of map information, the current national law of South Korea applies separate regulations for foreign and domestic companies. Law enforcement for cross-border information flow needs to create an environment of fair competition where innovative and competitive platforms can grow better, regardless of nationality, as stated in the KORUS FTA. There have been constant criticisms of the rigorous regulatory framework for domestic companies’ online map service (H. Kim et al., 2018; Yoon, 2018), compared to major foreign countries, including Google (Table 3). The regulation requiring the removal of security facilities is enforced only for domestic companies. These regulatory measures have hindered the growth of innovative native platforms. If the national security–based regulatory measures are continued, it may hamper the competitiveness of domestic companies.

Table 3.

Differentiated Regulation Between Domestic Companies and Google.

Category	Domestic Company	Google
Aerial photograph (Figure 1a)	It can be used freely	Cross-border transfer is not allowed
Aerial photographs containing security facilities (Figure 1a)	It shall be kept confidential	Same as above
Satellite imagery acquired by a foreign company (Figures 1b, 3, 5)	The law does not have an explicit statement	The law does not have an explicit statement
1:1000 Scale digital map (Figure 6)	It can be used freely	Same as above
1:1000 Scale digital map containing security facility (Figure 6)	It shall be kept confidential	Same as above
1:5000 Scale digital map (Figure 2)	It can be used freely	Same as above
1:5000 Scale digital map containing security facilities (Figure 2)	It shall be kept confidential	Same as above
1:500 Scale cadastral map (Figure 7)	It can be used freely	Same as above
1:500 Scale cadastral map containing security facilities (Figure 7)	It shall be kept confidential	Same as above
Street view (Figure 4)	The law does not have an explicit statement	Same as above

The South Korean government allows domestic portals to use aerial photographs, 1:1000 digital maps (Figure 6) and 1:500 cadastral maps (Figure 7) that contain spatial information. The legal validity of the South Korean government’s decision, which requests removing security facilities from Google Maps, cannot be justified by domestic legislation and KORUS FTA. In this AI era, there is an urgent need for a different set of security-based rules from those used in the age of military dictatorship. Controlling the military installations available to the public in various mapping services causes problems for regulation feasibility and reality. Security regulations should be relaxed for military installations that can be protected realistically, are not known by international mapping services, and not exposed to the public.

Figure 6.

1:1000 Digital maps: Presidential office of South Korea marked with *. Note. The presidential office is classified as a national security target facility and is disguised as a uniform color for confidentiality (not open to the public). Anyone can check the location of the security facility by observing the artificially manipulated shape in the online map service.

Figure 7.

1:500 Cadastral maps showing South Korea’s presidential office (marked with *) taken from the domestic Naver search engine. Note. Korea reserves the right to adopt or maintain any measure with respect to cadastral survey and cadastral map–related services (KORUS FTA, 2012e), Annex II, Schedule of Korea, p. II-KOR-34.

It would be appropriate for the Korean government to respond to the cross-border transfer according to the KORUS FTA exception clauses such as the domestic regulation. Korea reserves the right to adopt or maintain any measure affecting the administration and operation of any state-owned electronic/information system that contains proprietary information of the government or information gathered pursuant to the government’s regulatory functions and powers of the government (KORUS FTA, 2012d). Such measures shall apply to any other state-owned electronic/information systems that may be established in the future. Maps produced by the Korean government budget may fall under the exception of the KORUS FTA (KORUS FTA Annex II, Schedule of Korea, p. II-KOR-8. State-Owned National Electronic/Information System). Thus, there could be objective evidence for not being subject to cross-border transfer. However, the Korean government rejected Google’s request based on security reasons. This clause, state-owned electronic/information system, is not cited as a basis for rejection. Minimizing regulations that impair fair competition between South Korean and U.S. companies seems to be a legal solution that can reduce trade conflict, although such exceptions to domestic regulation exist.

Discussion

According to The Economist, the world’s most valuable resource is no longer oil but data (Leeward Capital Management, 2019). As the oil in the First and Second Industrial Revolutions, data will be the driving force of the Fourth Industrial Revolution (Daskal, 2017). New online services, including Google Street View, not only stir our curiosity but also make us fall for innovative conveniences such as cyber tours. Innovation and convergence based on cross-border data transfer are underway in various industries (Lee et al., 2015; Mitchell & Mishra, 2019), including not only manufacturing industries such as agriculture, chemicals, electricity, machinery, computers, electronics, and transportation but also in services such as law, health care, finance, and education.

There is a trade-off between the desire to maximize economic benefit through cross-border data transfer and minimize damage to the domestic industry resulting from such data flows. Over the last 2 decades, domestic regulation has increased as a means to limit cross-border data transfer while data transfer on the (borderless) internet has grown (Greenleaf & Park, 2012; Mitchell & Mishra, 2019). A high-precision map is an essential tool for self-driving cars and a core technology of the Fourth Industrial Revolution. More foreign companies will be looking to expand the export of goods and services based on location information, and trade disputes concerning map transfer will increase in frequency. However, if South Korea cannot logically justify maintaining its security measures for map transfer, the issue can be a cause of trade conflict. Thus, the rapidly developing borderless internet technology and the awareness level of the general public to internet map services should be taken into account when regulating the cross-border transfer of South Korean maps.

In November 2018, the U.S. Embassy in South Korea held a debate themed Keeping Digital Sovereignty in the Borderless Internet. U.S. Ambassador Harry Harris delivered the opening remarks. Joshua Meltzer, a senior researcher at Brookings Institution, pointed out that discriminatory measures for global companies concerning the cross-border transfer of digital data are contrary to WTO conventions and the FTA between South Korea and the United States, Japan, and Europe. This is based on the logic of a “backlashing age,” which is unsuitable for the Fourth Industrial Revolution (K. Kim, 2018). Some South Korean ministries, including the Ministry of Industry and the Ministry of Foreign Affairs, are also concerned that there might be trade conflicts with the United States if the government does not allow for cross-border transfer of the country’s map (Tribune, 2016).

Recently, South Korea created the Presidential Committee for the Fourth Industrial Revolution (PCFIR) with ministers from relevant ministries as members. It announced the Data Regulatory Innovation Plan in 2018 to increase the openness and sharing of data (PCFIR, 2020). However, current regulations still prohibit the cross-border transfer of the Korean map, core technologies of the Fourth Industrial Revolution, such as self-driving cars. The cross-border transfer of the map will significantly impact the national economy and benefits for the public. If the risk to national security is relatively low, it should be allowed by law. If the enormous amount of Government data held by the RTA Parties is open to the general public and can be used in industries related to the Fourth Industrial Revolution, the economic and social development of mankind can be efficiently achieved through corporate competitiveness reinforcement and technological innovation. Accordingly, some countries, such as the United States and Canada, have agreed to disclose the government data to the general public in “machine-readable and open format can be searched, retrieved, used, reused, and redistributed” through the USMCA RTA as shown below;

Article 19.18: Open Government Data 1:

The Parties recognize that facilitating public access to and use of government information fosters economic and social development, competitiveness, and innovation. 2. To the extent that a Party chooses to make government information, including data, available to the public, it shall endeavor to ensure that the information is in a machine-readable and open format and can be searched, retrieved, used, reused, and redistributed. 3. The Parties shall endeavor to cooperate to identify ways in which each Party can expand access to and use of government information, including data, that the Party has made public, with a view to enhancing and generating business opportunities.

The government must avoid turning domestic companies into proverbial “flowers in the greenhouse” or “fog in the well” due to an attempt to protect mapping data sovereignty. The technology level for self-driving cars in South Korea is considerably behind world-class companies such as Google (Okoshi & Terai, 2018). Google states that Waymo cars will be able to drive anywhere, regardless of the weather, as the Google Street View infrastructure already knows where important road features are and where they can drive as it covers every major city and country on the planet (Strauss, 2018).

There is an urgent need for a legislative system that enables global leaders in self-driving technology such as Google to collaborate with domestic companies. There is also a need to minimize the impact on domestic self-driving industries by implementing a consistent policy on map transfer between domestic and foreign companies. It would be reasonable adaptive regulation to provide foreign companies with the same precise maps as South Korean companies. Such governance will play a key role in satisfying the two opposing values of information sovereignty toward domestic maps and the protection of related industries. It can also lead directly or indirectly to an increase in bargaining power or strengthen cooperation with negotiating partners in digital data trade. For South Korea to pioneer future industries and lead the data economy, regulations on cross-border transfer of the South Korean map must be amended to reflect the rapid growth in technology.

Conclusion

The KORUS FTA is a bilateral treaty that stipulates that the parties refrain from imposing or maintaining unnecessary barriers to electronic information flow across borders. It guarantees NT and MFN treatment. South Korean laws for online mapping services have not escaped the regulatory framework, which focuses only on domestic companies. The legal evaluation confirmed that Article 26 of the Security Regulations on National Spatial Information does not include any written regulation concerning satellite data acquired by a foreign company. The domestic mapping industry suffers from the obligations imposed by various redundant government regulations that hinder transforming from a domestic mapping industry to a globally competitive one. The Security Regulation on National Spatial Information in the Fourth Industrial Revolution affects the daily life of the general public and all kinds of businesses including the autonomous driving industry. It is logical to apply the same regulations to domestic and U.S. companies for the use of South Korean maps according to the terms of the KORUS FTA. This legal evaluation raised provocative questions about security exception claims on the cross-border transfer of the South Korean map and provided a solid foundation for data regulatory innovations in South Korea.

Footnotes

Author’s Note

The Google Earth image used in this article was obtained using the free download function provided by Google Earth. The author thanks Google Earth for providing the satellite images and permission to use them for this study. Digital maps and cadastral maps of South Korea were acquired using the free download function provided by the domestic Naver search engine. The author would also like to thank Naver for providing the maps for this study.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biography

Dan-Bi Um is a full-time researcher at the Institute of Law Studies at Pusan National University, South Korea. She holds a Ph.D. in Law from Korea University. Her research focuses on information law and policies, data security, and decision making on information transfer. She can be reached at dbulaw@pusan.ac.kr.

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