The European Union Data Privacy Directive and International Relations
Salbu, Steven R., Vanderbilt Journal of Transnational Law
This Article explores the European Union Data Privacy Directive and its impact upon international relations. Part II provides a background upon which the Privacy Directive is built. In Part III, the Article confronts the differences between how the United States and its European counterparts address privacy issues generally. Part IV analyzes the Privacy Directive in detail, while Part V explores possible effects that the Privacy Directive might have on international relations.
Recently, the European Union passed the Data Privacy Directive (Directive), under which Member States are required to enact implementing legislation. (1) The Directive is the world's most ambitious and far-reaching data privacy initiative of the high-technology era. Its global pervasiveness, and therefore its extraterritorial effects, raise interesting questions regarding tension between the goal of uniform Internet policies and the importance of respecting sovereignty and national autonomy. The resolution of this tension may ultimately affect international relations in the new century.
This Article examines these dynamics. Part II is a primer on contemporary data privacy issues, the foundation upon which the EU Directive is built. Part III briefly discusses differences between U.S. and European approaches to these privacy issues, highlighting a present lack of global uniformity, even among two Western, developed, regional economies. Part IV analyzes the EU Directive and includes some critical observations, highlighting potential pitfalls and shortcomings. Part V looks at the relationship between the EU approach and international relations, examining possible effects on the furtherance or hindrance of a harmonious and cohesive world community.
II. A PRIMER ON CONTEMPORARY DATA PRIVACY ISSUES
Privacy is a concern that obviously predates modern technology. (2) It is also easily taken for granted. As one scholar observes, privacy is a lot like freedom: people do not appreciate its value and importance until it is threatened or lost. (3) In an era of burgeoning information technology, privacy also can become an afterthought, a secondary consideration in the race to find and exploit the next cutting-edge development. (4)
Since the 1980s, but prior to public diffusion of developing Internet technology, legal scholars recognized how seriously computers can threaten privacy. (5) The advantages of technology come at a price: one person's "enhanced information" can invade another person's privacy. (6) This double-edged sword naturally creates conflict, based on both self-interest and ideology. (7)
Reasons for concern have escalated, and they continue to grow. Privacy is becoming increasingly susceptible to ever more sophisticated technologies. Electronic identification cards, wiretaps, biometrics, and video surveillance cameras all have the potential to erode privacy. (8) Digital interactive television technology soon may tell advertisers exactly which programs people view in their homes, refining target advertising (9) in ways that are potentially both beneficial and frightening. (10)
No modern technology poses a greater threat to privacy than the Internet. (11) Interactive computer technology allows researchers to collect data more cheaply and efficiently. (12) Conversion of data into binary form enables the common person to store, use, and misuse data in powerful new ways. (13) Computer technology also allows commercial and other entities (14) to accomplish data collection tasks more quickly and inexpensively. (15) What once took days of manual labor now can be accomplished with a keystroke; what once required substantial capital now can be achieved by anyone with a computer and a modem. (16)
By the late 1990s, the potential had become a reality, as a Federal Trade Commission (FTC) survey analyzed 1402 websites and concluded that ninety-two percent collected personal data, and that the majority did so without posting privacy disclosure statements. …