US Regulatory Values and Privacy Consequences: Implications for the European Citizen

Chris Jay Hoofnagle, US Regulatory Values and Privacy Consequences, 2 Eur. Data Prot. L. Rev. 169-177 (2016)

UC Berkeley Public Law Research Paper No. 2801404

9 Pages Posted: 7 Jul 2016 Last revised: 2 Mar 2017

See all articles by Chris Jay Hoofnagle

Chris Jay Hoofnagle

University of California, Berkeley - School of Information; University of California, Berkeley - School of Law

Date Written: June 27, 2016

Abstract

Europeans face a regulatory challenge: how can the human rights and dignitary values that animate data protection law be protected in transborder data flows? With the proposal of the EU-US Privacy Shield, part of the challenge will be answered by the US Federal Trade Commission (FTC). The FTC is a small but powerful US agency established in 1914 to address problems of monopoly and trust. Shortly after its creation, the FTC turned its attention to consumer issues. Over the years, Congress has repeatedly empowered the FTC, and the agency has accomplished much on privacy matters. In a recent book, I recount the FTC’s privacy successes.

But this article focuses on the limits of the FTC’s powers. The American business community has eschewed dignity as a privacy value in favor of economistic conceptions of privacy interests. This article explains how the FTC’s focus on economic liberty constrains how it can protect Europeans’ normative interests in privacy. First, this article recounts why the FTC has to find economic pretenses to extend its reach to normative, dignity-based affronts to personality. The article then discusses the structural limits of the FTC and how these limits constrain privacy enforcement. The article concludes with a discussion of instruments that could bridge the gap between the FTC’s economistic conceptions and the values Europeans place in data protection.

Keywords: enforcement, civil penalties, dignity versus liberty, case selection

JEL Classification: 033, L5, K2

Suggested Citation

Hoofnagle, Chris Jay, US Regulatory Values and Privacy Consequences: Implications for the European Citizen (June 27, 2016). Chris Jay Hoofnagle, US Regulatory Values and Privacy Consequences, 2 Eur. Data Prot. L. Rev. 169-177 (2016); UC Berkeley Public Law Research Paper No. 2801404. Available at SSRN: https://ssrn.com/abstract=2801404

Chris Jay Hoofnagle (Contact Author)

University of California, Berkeley - School of Information ( email )

212 South Hall
Berkeley, CA 94720-4600
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

University of California, Berkeley - School of Law ( email )

344 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

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