Mind the Gap: Understanding the U.S. Perspective on Privacy in Safe Harbor/Data Transfer Negotiations

Abstract

Transnational businesses are craving harmonization in the law and policy of data transfer across the Atlantic. The U.S.-EU safe harbor agreement fell on hard times in 2014, but its continuation seems a commercial essentiality and a political inevitability. The White House has been pushing a policy shift toward the EU position on consumer privacy since 2012. In 2014, the U.S. Department of Commerce, for matters within its purview, negotiated to resolution EC concerns over safe harbor. But law enforcement data use — not within the department’s purview — remained a sticking point. And with a new data protection regulation on the EU horizon, the spirit of cooperation in the north Atlantic is increasingly soured by reproach in U.S. media, political, and economic circles. Frustratingly, from a European perspective, the United States seems of two minds on the problem of privacy. And so it is. Businesses struggle to achieve seamless transatlantic commerce, a level playing field for market competition and growth. At the same time, the EU privacy framework cuts against the grain of certain deep-seated and structural biases in U.S. law and culture. Abraded by this tension, U.S. nerves are raw on the subjects of privacy, government regulation, and the very relationship of the United States with continental Europe. Business leaders, politicians, and lawyers can benefit by understanding how U.S. and European privacy perspectives diverge and by minding the gap.

Keywords: data protection, privacy, private, personal, directive, regulation, law, First Amendment, Fourth Amendment, right, legal, culture, society, United States, Europe, European Union, comparative

JEL Classification: F02, F13, F23, F42, H11, H73, H77, I18, K10, K19, K23, K33, L82, L86, O38, O57, P52