Portal de Periódicos da CAPES

Transatlantic Privacy Regulation: Conflict and Cooperation

2015; Duke University School of Law; Volume: 78; Issue: 4 Linguagem: Inglês

1945-2322

Francesca Bignami, Giorgio Resta,

Legal Systems and Judicial Processes

I INTRODUCTION Regulatory differences in the data privacy arena have been a recurring source of contention in transatlantic trade relations. In the 1990s, the focus was primarily on differences in the rules governing market actors. Over the past decade, however, the focus has expanded to include the public sector and the policies regulating the collection and use of personal data by government actors, particularly national security agencies. This article surveys the considerable history of transatlantic relations in the privacy area and the attempts that have been made to reconcile legal and policy differences in the interest of trade liberalization and police and national security cooperation. It then turns to the current dispute over National Security Agency (NSA) surveillance and discusses the factual and legal underpinnings of the dispute. The article demonstrates how this latest episode in transatlantic privacy both underscores longstanding legal differences and reveals fresh ones. The article concludes with observations regarding the impact of the NSA dispute on transatlantic privacy relations and on trade relations more broadly speaking. II HISTORY OF DATA PRIVACY IN TRANSATLANTIC RELATIONS A. Regulatory Differences and Similarities In narrating the history of data privacy, the point of departure is generally taken to be the Code of Fair Information Practices set forth in an expert report commissioned by the United States Department of Health, Education, and Welfare and published in 1973. (1) To understand the current transatlantic dispute, however, it bears taking one step back, to begin with the judgment of the German Constitutional Court in the Microcensus case. (2) In 1969, the Court found that the personal information collected in large data banks was constitutionally protected under Articles 1 and 2 of the Basic Law (human dignity and the free development of personality). (3) That litigation involved a challenge to the federal census, which the Court ultimately upheld, but only on condition that the information remain anonymous. (4) This early case was followed, over ten years later, by the celebrated Census Act case in which the Court recognized a broad of informational self-determination (informationelles Selbstbestimmungsrecht). (5) With the right of informational self-determination, the Court significantly extended its earlier jurisprudence. The Court recognized that the right of informational self-determination covered all personal information, and it abandoned the distinction that had been made in the Microcensus case between private information and information in the public domain. The Court also stated that the right came into being at the time of collection--at the moment that the individual was asked to give up the information--and not simply once it was used or misused by state actors and other types of data processors. The extraordinary possibilities of modern information technologies underpinned this conceptualization of the right of informational self-determination. In language reminiscent of a recent report by the United States Privacy and Civil Liberties Oversight Board, (6) the German Court wrote in 1983 that [t]he [individual's decisional] authority needs special protection in view of the present and prospective conditions of automatic data processing. It is particularly endangered because ... the technical means of storing highly personalized information about particular persons today are practically unlimited, and [information] can be retrieved in a matter of seconds with the aid of automatic data processing, irrespective of distance. Furthermore, such information can be joined to other data collections--particularly when constructing integrated information systems--to produce a partial or virtually complete personality profile, with the person concerned having insufficient means of controlling either its veracity or its use. …