“The EU-US interface: Is it possible?” CPDP2015 panel. Recommendation and some thoughts

The organizers of CPDP 2015 made available on their youtube channel some of the panels from this year’s conference, which happened last week in Brussels. This is a wonderful gift for people who weren’t able to attend CPDP this year (like myself). So a big thank you for that!

While all of them seem interesting, I especially recommend the “EU-US interface: Is it possible?” panel. My bet is that the EU privacy legal regime/US privacy legal regime dichotomy and the debates surrounding it will set the framework of “tomorrow”‘s global protection of private life.

Exactly one year ago I wrote a 4 page research proposal for a post-doc position with the title “Finding Neverland: The common ground of the legal systems of privacy protection in the European Union and the United States”. A very brave idea, to say the least, in a general scholarly environment which still widely accepts  Whitman’s liberty vs dignity solution as a fundamental “rift” between the American and European privacy cultures.

The idea I wanted to develop is to stop looking at what seems to be fundamental differences and start searching a common ground from which to build new understandings of protecting private life  accepted by both systems.

While it is true that, for instance, a socket in Europe is not the same as a socket in the US (as a traveller between the two continents I am well aware of that), fundamental human values do not change while crossing the ocean. Ultimately, I can convert the socket into metaphor and say that even if the continents use two very different sockets, the function of those sockets is the same – they are a means to provide energy so that one’s electronic equipment works. So which is this “energy” of the legal regime that protects private life in Europe and in the US?

My hunch is that this common ground is “free will”, and I have a bit of Hegel’s philosophy to back this idea. My research proposal was rejected (in fact, by the institute which, one year later, organized this panel at CPDP 2015 on the EU-US interface in privacy law). But, who knows? One day I may be able to pursue this idea and make it useful somehow for regulators that will have to find this common ground in the end.

You will discover in this panel some interesting ideas. Margot Kaminski (The Ohio State University Moritz College of Law) brings up the fact that free speech is not absolute in the US constitutional system – “copyright protection can win over the first amendment” she says. This argument is important in the free speech vs privacy debate in the US, because it shows that free speech is not “unbeatable”. It could be a starting point, among others, in finding some common ground.

Pierluigi Perri (University of Milan) and David Thaw (University of Pittsburgh) seem to be the ones that focus the most on the common grounds of the two legal regimes. They say that, even if it seems that one system is more preoccupied with state intrusions in private life and the other with corporate intrusions, both systems share a “feared outcome – the chilling effect on action and speech” of these intrusions. They propose a “supervised market based regulation” model.

Dennis Hirsch (Capital University Law School) speaks about the need of global privacy rules or something approximating them, “because data moves so dynamically in so many different ways today and it does not respect borders”. (I happen to agree with this statement – more details, here). Dennis argues in favour of sector co-regulation, that is regulation by government and industry, to be applied in each sector.

Other contributions are made by Joris van Hoboken, University of Amsterdam/New York University (NL/US) and Eduardo Ustaran, Hogan Lovells International (UK).

The panel is chaired by Frederik Zuiderveen Borgesius, University of Amsterdam  and organised by Information Society Project at Yale Law School.

Enjoy!

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