Henry Farrell & Abraham Newman, Domestic Security and Privacy Regulation in the Transatlantic Relationship

Comment by: Gavin Phillipson

PLSC 2010

Workshop draft abstract:

Many policy and legal observers had hoped that the conclusion of the Safe Harbor Agreement would prevent data privacy as the new “wedge issue” of transatlantic relations.  Since the terrorist attacks of September 11 2001, however, a series of privacy conflicts have roiled the partnership and undermined anti-terrorism cooperation among NATO allies.    However, these conflicts are poorly understood. Most commentary has focused on differences between the EU and US approaches to human rights and internal security as explaining continuing disagreements between the EU and US. However, explanations centered on value clashes don’t explain why the EU and US agree on so much concerning counter-terrorism policy. We argue that one needs to pay attention to institutional change over time in order to understand these clashes. The EU and US have developed and re-developed specific mechanisms of policy oversight, in a sequence where developments in one regime may influence subsequent developments in the other. These policy trajectories produce unstable and temporary international compromises, which plant the seeds of future conflict. We demonstrate this by examining negotiations over airline data, financial information and general privacy principles.   This has important repercussions for the study of privacy. Scholars (whether legal or policy academics) tend to look either at the EU or US in isolation from each other, or to use stylized descriptions (in which the EU is seen as innately more concerned with fundamental privacy rights, and the US more security focused) to capture the differences between the two systems. We show that institutional developments in the two systems are frequently bound up with each other, and that they are not well captured by the standard accounts of EU-US differences.