EU Privacy and the Cloud: Consent and Jurisdiction Under the Proposed Regulation
12 BNA Privacy and Security Law Report 718 (04/29/2013)
3 Pages Posted: 6 Jul 2013
Date Written: April 1, 2013
The cloud is a business sector in which U.S. companies lead the world in new products and services. The market for cloud computing is already a multibillion-dollar international market. Forrester Research Inc. has predicted a growth in the size of this market from $40.7 billion in 2011 to more than $241 billion in 2020.
Due to the international dimensions of cloud computing, regulations outside of the United States are now as important as those inside it. The European Union is the most important bilateral trade area for the United States, and its proposed data protection regulation is of profound significance for U.S. companies that offer cloud services. As the European Commission notes, concerns about data protection constitute "one of the most serious barriers to cloud computing take-up." It calls for "a chain of confidence-building steps to create trust in cloud solutions."
One of the most important of these steps is the Proposed Data Protection Regulation. U.S. cloud services should take particular note of two areas of the Proposed Regulation. The first concerns its limitations on the use of an individual’s consent to permit data processing. The second is how it crafts a broad jurisdictional reach for EU information privacy law.
This Essay argues that the Proposed Data Protection Regulation drastically narrows the conditions for reliance on the use of "consent" mechanisms as a justification for data processing. The Proposed Regulation also extends EU privacy jurisdiction beyond the existing framework. This Essay analyzes the resulting strict "fair information practices" regarding consent in EU information privacy law. It also proposes adjustments to the proposed jurisdictional approach for EU privacy law.
Keywords: information privacy law, data protection, data privacy, European Union law
JEL Classification: F10, K00
Suggested Citation: Suggested Citation