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Abstract:
This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting - the Data Retention Directive. Based on a detailed examination of the Directive's legislative history, the paper finds that privacy - as guaranteed under Article 8 of the European Convention on Human Rights and the Council of Europe's Convention on Data Protection - was adequately protected in the Directive. This positive experience can serve as guidance for guaranteeing other fundamental rights in the rapidly expanding area of EU cooperation on criminal matters.

Abstract:
The difference between European and American regulation of marketplace privacy is well-established: information privacy is protected more under European law than American law. Recently, with the revelation of a number of U.S. government, anti-terrorism programs, it has become clear that the transatlantic difference is not limited to the market. Also in the face of government action, Europeans protect information privacy more than Americans. This paper brings to light the legal differences between the two systems by considering the case - real in the United States, hypothetical in Europe - of a spy agency's database of call records, created for the purpose of identifying potential terrorists. The paper explains that, under American law, such an anti-terrorism database might very well be legal, and that, under European law, such an anti-terrorism database would clearly be illegal. It then reviews the barriers to transatlantic cooperation on fighting terrorism that have been created by the legal difference. The paper also considers the reasons for this transatlantic difference - surprising in view of the common wisdom that Americans are more suspicious of government interferences with individual liberty than Europeans. The paper concludes with a few recommendations for the reform of American information privacy law, principal among them being the establishment of an independent privacy agency.

Abstract:
This Article develops an explanation for the emergence of individual rights before the European Commission, one of the oldest and most powerful international organizations in existence today. I argue that, in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices who were determined to retain them in the face of European integration. To preserve and extend their authority, European institutions adopted these constitutional ideals and hence altered the nature of European rights.

In developing this explanation, I draw upon a number of theories in political science. One of the longest-running debates over European integration is the balance between sovereign states and supranational institutions in setting the pace of European integration. While some scholars argue that traditional state interests and the balance of power among states are critical, others take supranational institutions - and their interest in expanding their powers and pushing forward integration - as the decisive force behind integration. My review of the origins of rights before the Commission shows that both sets of actors, at different points in time, were agents of rights. More importantly, the empirical analysis brings to light two important constraints on the ability of states and supranational institutions to design European rights to their advantage, often overlooked in the political science literature. The first is history writ large: understandings of fair and democratic government developed within the nation-state and representing the accumulation of experiences, beliefs, and norms over generations. The second is history writ small: episodic, external challenges to the authority of European institutions that serve as the context in which such institutions further their interests. These factors should be taken into account in explaining the rights that define what it is to be a European citizen today.

European Commission, rights against government, global governance

Abstract:
This paper conceptualises European governance as a continuous series of collective action games among national regulators. European administration is theorized as a set of mutually beneficial relations among independent regulators, rather than as a hierarchy of supranational institutions, courts, and national administrators. The collective action approach highlights the importance of certain factors in fostering regulatory cooperation and enabling the common market to become an administrative reality: repeated interactions, monitoring and sanctioning by the Commission and the courts, reciprocity norms, and trust. It also suggests that one of the most significant challenges of enlargement will be to establish cooperative regulatory exchanges among old and new regulators. Regulators in the existing member states do not always trust the capacity of Central and Eastern European regulators to administer the acquis communautaire. Cooperation and trust among old and new regulators will also prove difficult because, after enlargement, their relations will gradually shift from ones of power to ones of mutually beneficial exchanges among equals. The solution lies in self-awareness of the structure of the collective action game, a more active role for the Commission and the Court in monitoring compliance, and strict adherence to a strategy of reciprocity in retaliating for non-compliance.

European law, International law, Administrative law, collective action

Abstract:
The theory of constitutional patriotism has been advanced as a solution to the European Union's legitimacy woes. Europeans, according to this theory, should recognize themselves as members of a single human community and thus acknowledge the legitimacy of Europe-wide governance based on their shared belief in a common set of liberal democratic values. Yet in its search for unity, constitutional patriotism, like nationalism and other founding myths, carries the potential for the exclusion of others. This article explores the illiberal tendencies of one element of the liberal canon - the right to privacy - in the case law of Europe's constitutional courts. It argues that, in confronting the tension between privacy and freedom of expression, the European Court of Justice has been more successful than the European Court of Human Rights at accommodating diverse national orderings and thus resisting the illiberal dangers of constitutional patriotism.

EU law, comparative law, privacy

Abstract: