Scholarly record
AN APPROACH TO A NEW AGREEMENT FOR EU/USA TRANSANTLANTIC PERSONAL DATA FLOW: AMERICAN TECHNOLOGY AND EUROPEAN LAW IN CONFLICT
Abstract
The European Union (EU) and the USA have two very different models of personal data protection (European terminology) or information privacy law (American terminology). EU law has a defined and clear concept of personal data and a general law to protect this fundamental right. Meanwhile, the USA does not have a uniform definition of information privacy or personally identifiable information (PII); and it has only some sectorial laws to protect privacy in some markets. Personally identifiable information is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. At the same time, there is not a unique concept in US law for information privacy. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-indentified. In some way, then, we can say that the European law is applicable to almost all information on the Internet. And in some way, too, we can say that American technology uses data to establish its markets and services. These widely divergent positions present a difficult point from which to start looking for an agreement. In addition, some legal categories of the European LawВ—General Data Protection Regulation (GDPR)В—are not negotiable under contracts. Because of their inalienability they cannot be traded away by the free will of individuals, which complicates the mutual relationships between the two continents. After breaking the SAFE HARBOR (after the SCHREMS EUROPEAN COURT DECISION Sept. 23, 2015, in CASE C-362/14) and under the New Agreement PRIVACY SHIELD FRAMEWORK 2016, new problems arose. Also, it cannot be forgotten that the prospects of the Internet of Things (IoT) and Artificial Intelligence (AI) are introducing new technologies that challenge the present laws and concepts. These problems are asking for harmonized solutions that reflect cooperation of laws and policies for both sides of the Atlantic. This is necessary in order to continue with the traditional commercial relationship between Europe and North America and to work together against the terrorism threat. This paper will examine possible departure points, criteria and perspectives to find an approach based on the European Law (GDPR) and the US regulations and policies.
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