The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures

By Schwartz, Paul M. | Harvard Law Review, May 2013 | Go to article overview

The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures


Schwartz, Paul M., Harvard Law Review


I. INTRODUCTION

Internet scholarship in the United States generally concentrates on how decisions made in this country about copyright law, network neutrality, and other policy areas shape cyberspace. (1) In one important aspect of the evolving Internet, however, a comparative focus is indispensable. Legal forces outside the United States have significantly shaped the governance of information privacy, a highly important aspect of cyberspace, and one involving central issues of civil liberties. The EU has played a major role in international decisions involving information privacy, a role that has been bolstered by the authority of EU member states to block data transfers to third party nations, including the United States. (2)

The European Commission's release in late January 2012 of its proposed "General Data Protection Regulation" (the Proposed Regulation) provides a perfect juncture to assess the ongoing EU-U.S. privacy collision. (3) An intense debate is now occurring about critical areas of information policy, including the rules for lawfulness of personal processing, the "right to be forgotten," and the conditions for data flows between the EU and the United States.

This Article begins by tracing the rise of the current EU-U.S. privacy status quo. The European Commission's 1995 Data Protection Directive (the Directive) staked out a number of bold positions, including a limit on international data transfers to countries that lacked "adequate" legal protections for personal information. (4) The impact of the Directive has been considerable. The Directive has shaped the form of numerous laws, inside and outside of the EU, and contributed to the creation of a substantive EU model of data protection, which has also been highly influential. (5)

This Article explores the path that the United States has taken in its information privacy law and explores the reasons for the relative lack of American influence on worldwide information privacy regulatory models. As an initial matter, the EU is skeptical regarding the level of protection that U.S. law actually provides. Moreover, despite the important role of the United States in early global information privacy debates, the rest of the world has followed the EU model and enacted EU-style "data protection" laws.

At the same time, the aftermath of the Directive has seen ad hoc policy efforts between the United States and EU that have created numerous paths to satisfy the EU's requirement of "adequacy" for data transfers from the EU to the United States. (6) The policy instruments involved are the Safe Harbor, the two sets of Model Contractual Clauses, and the Binding Corporate Rules. (7) These policy instruments provide key elements for an intense process of nonlegislative lawmaking, and one that has involved a large cast of characters, both governmental and nongovernmental.

This Article argues that this policymaking has not been led exclusively by the EU, but has been a collaborative effort marked by accommodation and compromise. In discussing this process of nonlegislative lawmaking, this Article will distinguish the current policymaking with respect to privacy from Professor Anu Bradford's "Brussels Effect." (8) This nonlegislative "lawmaking" is a productive outcome in line with the concept of "harmonization networks" that Professor Anne-Marie Slaughter has identified in her scholarship. (9) "Harmonization networks" develop when regulators in different countries work together to harmonize or otherwise adjust different kinds of domestic law to achieve outcomes favorable to all parties. (10)

The Article then analyzes the likely impact of the Proposed Regulation, which is slated to replace the Directive. The Proposed Regulation threatens to destabilize the current privacy policy equilibrium and prevent the kind of decentralized global policymaking that has occurred in the past. The Proposed Regulation overturns the current balance by heightening certain individual rights beyond levels that U.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.