Transborder Data Privacy as Trade

Transborder Data Privacy as Trade

Data flows continuously across national boundaries. The current model of regulation for data privacy, an essential component for safe data flow, relies impractically on jurisdiction-specific rules. This practice impedes the benefits of data, which are increasingly a necessary and integral part of day-to-day life. A look at the history of data privacy reveals that this practice is rooted in an ill-fitting adoption of privacy standards set in the period after World War II. Europe was reeling from the Nazi regime and intent on keeping the government out of the home and personal communication. Analogies between these traditional protected areas and the contemporary transmissions and use of personal data are unsatisfying—and lead to unsatisfying policy. Traditional privacy jurisprudence must be better reconciled with rapidly advancing technology and globalization.

This Note proposes reframing transborder data privacy as trade. This step would transition the regulatory model away from a jurisdiction-specific set of rules to an internationally shared set of standards that better reflects the immediate mobility of data in the cloud. The U.S. and European systems, while formally divergent enough to cause these problems, are in fact grounded in common principles that would serve as a base for an international agreement on transborder data privacy. Though political opposition to shared standards may be currently insurmountable, this Note nonetheless concludes that an international trade framework would more effectively harness the benefits and mitigate the risks of transborder data flow.

PDF

More in this Issue

A Crime at Any Age: Intimate Partner Abuse in Later Life

Intimate partner abuse (IPA) is a problem that affects millions of women across the United States every year. Traditionally, strategies designed to help victims and reduce IPA have tended to focus on women of childbearing age. However, older women who experience abuse at the hands of male partners are often left out of the conversation. […]

Aquifers and Democracy: Enforcing Voter Equal Protection to Save California’s Imperiled Groundwater and Redeem Local Government

California’s Sustainable Groundwater Management Act (“SGMA”) allows local entities that represent landowners, government agencies, or private companies, rather than the public, to take on exclusive power to regulate and manage imperiled groundwater resources. In at least some cases, under SGMA these entities are governed and controlled in ways that violate the one person, one vote […]

Agencies as Adversaries

Conflict between agencies and outsiders—whether private stakeholders, state governments, or Congress—is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound. In President Obama’s administration, there was the battle between the Federal Bureau of Investigation and the Department of […]

Abandoning the Federal Role in Education: The Every Student Succeeds Act

In December 2015, Congress passed the Every Student Succeeds Act (ESSA), which redefined the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of the NCLB, Congress failed to devise […]