Friending the Privacy Regulators

68 Pages Posted: 11 Aug 2016 Last revised: 2 Dec 2016

William McGeveran

University of Minnesota Law School

Date Written: August 5, 2016

Abstract

According to conventional wisdom, data privacy regulators in the European Union are unreasonably demanding, while their American counterparts are laughably lax. Many observers further assume that any privacy enforcement without monetary fines or other punishment is an ineffective “slap on the wrist.” This Article demonstrates that both of these assumptions are wrong. It uses the simultaneous 2011 investigation of Facebook’s privacy practices by regulators in the United States and Ireland as a case study. These two agencies reached broadly similar conclusions, and neither imposed a traditional penalty. Instead, they utilized “responsive regulation,” where the government emphasizes less adversarial techniques and considers formal enforcement actions more of a last resort.

When regulators in different jurisdictions employ this same responsive regulatory strategy, they blur the supposedly sharp distinctions between them, whatever may be written in their respective constitutional proclamations or statute books. Moreover, “regulatory friending” techniques work effectively in the privacy context. Responsive regulation encourages companies to improve their practices continually, it retains flexibility to deal with changing technology, and it discharges oversight duties cost-efficiently, thus improving real-world data practices.

Keywords: Privacy, Data Protection, Internet, Facebook, Social Media, Regulation, Responsive Regulation, Comparative Law, Ireland, Consumer Protection, Administrative Law

JEL Classification: K20

Suggested Citation

McGeveran, William, Friending the Privacy Regulators (August 5, 2016). 58 Arizona Law Review 2016; Minnesota Legal Studies Research Paper No. 16-26. Available at SSRN: https://ssrn.com/abstract=2820683

William McGeveran (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://blogs.law.harvard.edu/infolaw

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