Domesticating The ‘Foreign’ in Making Transatlantic Data Privacy Law

International Journal of Constitutional Law, Forthcoming

26 Pages Posted: 22 Feb 2017

See all articles by Bilyana Petkova

Bilyana Petkova

University of Graz - Faculty of Law; Yale University - Yale Information Society Project

Date Written: February 20, 2017

Abstract

Research shows that in the data privacy domain, the regulation promoted by frontrunner states in federated systems such as the United States or the European Union generates races to the top, not to the bottom. Institutional dynamics or the willingness of major interstate companies to work with a single standard generally create opportunities for the federal lawmaker to level up privacy protection.

This article uses federalism to explore whether a similar pattern of convergence (toward the higher regulatory standard) emerges when it comes to the international arena, or whether we witness a more nuanced picture. I focus on the interaction of the European Union with the United States, looking at the migration of legal ideas across the (member) state jurisdictions with a focus on breach notification statutes and privacy officers. The article further analyses recent developments such as the invalidation of the Safe Harbor Agreement and the adoption of a Privacy Shield. I argue that instead of a one-way street, usually conceptualized as the EU ratcheting up standards in the US, the influences between the two blocs are mutual. Such influences are conditioned by the receptivity and ability of domestic actors in both the US and the EU to translate, and often, adapt the “foreign” to their respective contexts. Instead of converging toward a uniform standard, the different points of entry in the two federated systems contribute to the continuous development of two models of regulating commercial privacy that, thus far, remain distinct.

Keywords: EU-US Data Privacy, Breach Notification, Privacy Officer, Safe Harbour, Privacy Shield

Suggested Citation

Petkova, Bilyana, Domesticating The ‘Foreign’ in Making Transatlantic Data Privacy Law (February 20, 2017). International Journal of Constitutional Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2920412

Bilyana Petkova (Contact Author)

University of Graz - Faculty of Law ( email )

Austria

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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