Bilyana Petkova, "Data Protection in the US and the EU: the Case for Federal Solutions"

Bilyana Petkova (Yale-NYU, soon to be Max Weber Fellow at EUI) has forwarded the contribution below, cross-posted from Verfassungsblog, which builds on her article recently posted on SSRN entitled "The Safeguards of Privacy Federalism."  An earlier version of this paper won a Young Scholars Award at the 8th Annual Privacy Law Scholars Conference at Berkeley in June 2015.

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Which level is better placed to provide efficient data protection – the federal or the state level? This question is topical both in the United States and in the European Union. In the US, there are concerns regarding the increased fragmentation of American data privacy law and the lack of relevant federal consolidation. In the EU, the proposed General Data Protection Regulation (GDPR) supposed to replace the Directive of 1995 was met with opposition regarding the “over-centralization of powers” in the European institutions.

Where do we stand with data protection in the EU and in the US now? We are five years in after the EU Commission first announced its initiative to work toward updating the framework European data protection law, and over 207 amendments to the Commission’s proposal later (introduced only in the version of the European Parliament; if we add the ones tabled by the different Presidencies of the Council, the count would reach several thousands). In an unprecedented move, at the end of July the European Data Protection Supervisor issued his own amended version of the Regulation ahead of the upcoming institutional trialogue…

In the meantime, the US has been drifting further away from a comprehensive statutory scheme after a federal proposal for a Consumer Bill of Rights failed to muster agreement twice, first in 2012 and then in 2015. Current attempts to regulatestudent privacy and to consolidate state data breach notification laws on the federal level remain uncertain.

In short, the GDPR and US federal initiatives are seemingly not winning hearts and minds. But they should have at least provoked your curiosity by now. Here is how federal or EU regulation has the potential of bringing a level of legal certainty beneficial to individuals and businesses alike:

The Evils of Centralizing Data Protection: Myth or Reality?

Myth 1: The procedure for enacting US federal or European law is slow and burdensome. Hence, the main fear of centralizing data protection law is that it would bring regulatory ossification that stymies innovation.

Myth 2: Industry lobbies mobilize better on the federal or the EU level. They push Congress or the EU institutions toward the establishment of weak centralized legislation vis-à-vis private sector regulation. The phenomenon, dubbed “defensive preemption”, has been described regarding policy developments in the US environmental field back in the 1980s. Strong lobbies tried to preempt environmental-friendly US state laws by institutionalizing a low bar of federal protection.

The conventional wisdom is not entirely wrong. But it is simplified and too often incomplete. Precisely because of the checks and balances that slow down US federal or EU lawmaking, state regulation is a necessary backstop for data protection law. The state legislatures can react promptly to what are perceived by their constituents as digital threats. Some of the state laws will provide imperfect protection and will possibly be too inflexible. Federal or EU law oversight can evaluate and fix such regulatory failures.

In turn, centralized oversight does not need to translate into weakening of the privacy protections. Federal or EU law can introduce mechanisms that allow the law to respond to ongoing challenges. For example, the GDPR establishes a one-stop-shop mechanism that aims to avoid forum shopping. According to the one-stop shop principle, only one national Data Protection Authority (DPA) is responsible for taking legally binding decisions against a company (the responsible DPA is determined by the company’s main establishment in the EU). However, some were concerned that businesses would locate their main establishment in countries with a less onerous enforcement approach. Despite question marks about the practical implementation of this principle, the GDPR introduces a requirement for co-operation between the national DPAs that significantly minimizes the risk of a “race to the bottom”.

One way to avoid ossification is therefore by relying on state standards and institutions to act as catalysts. An often-quoted example is the first Californian law on breach notifications, now adopted under one form or another in 47 of the US states. A similar case is the French idea of a “droit à l’oubli” that now forms part of the case law of the European Court of Justice and is a feature of the GDPR. If the federal government or the EU legislator refrain from preempting state law for a period of time, at least some of the higher standards of consumer or fundamental rights protection introduced in at least some of the states are likely to be voluntarily taken up by other states but also by the industry. Privacy federalism can offer protections in the long run.

Book Announcement: Michelle Egan, "Single Markets: Economic Integration in Europe and the United States"

Network member Michelle Egan (American University) has alerted us that her new book, Single Markets: Economic Integration in Europe and the United States, is now available from the Oxford University Press.  The publisher's blurb is below, and more information is available from the OUP site here.

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This timely book provides in-depth analytical comparison of the nineteenth century evolution of the American single market with corresponding political, economic, and social developments in post-WWII European efforts to create a single European market. Building the regulatory framework needed for successful adoption of an integrated single market across diverse political units represents one of the most important issues in comparative political economy. What accounts for the political success or failure in creating integrated markets in their respective territories? When social discontent threatens market integration with populist backlash, what must be done to create political support and greater legitimacy?

Single Markets focuses on the creation of integrated economies, in which the United States and European Union experienced sharply contested ideas about the operation of their respective markets, conflict over the allocation of institutional authority, and pressure from competing political, economic, and social forces over the role and consequences of increased competition. Drawing upon four case studies, the book highlights the contestation surrounding the US and EU's efforts to create common currencies, expand their borders and territories, and deal with the pressures of populist parties, regional interests and varied fiscal and economic challenges. Theoretically, the book draws on work in European integration and American Political Development (APD) to illustrate that the consolidation of markets in the US and EU took place in conjunction with the expansion of state regulatory power and pressure for democratic reform.

Single Markets situates the consolidation of single markets in the US and EU in a broader comparative context that draws on research in economics, public administration, political science, law, and history.

The Network on SSRN: Erin Delaney on "Judiciary Rising: Constitutional Change in the United Kingdom"

Network member Erin Delaney (Northwestern) has posted a new piece on SSRN, entitled "Judiciary Rising: Constitutional Change in the United Kingdom."  The article is forthcoming from the Northwestern University Law Review.  The abstract is below and the full article may be downloaded here.

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Britain is experiencing a period of dramatic change that challenges centuries-old understandings of British constitutionalism. In the past fifteen years, the British Parliament enacted a quasi-constitutional bill of rights; devolved legislative power to Scotland, Wales, and Northern Ireland; and created a new Supreme Court. British academics debate how each element of this transformation can be best understood: is it consistent with political constitutionalism and historic notions of parliamentary sovereignty, or does it usher in a new regime that places external, rule-of-law-based limits on Parliament? Much of this commentary examines these changes in a piecemeal fashion, failing to account for the systemic factors at play in the British system.

This Article assesses the cumulative force of the many recent constitutional changes, shedding new light on the changing nature of the British constitution. Drawing on the U.S. literature on federalism and judicial power, the Article illuminates the role of human rights and devolution in the growing influence of the U.K. Supreme Court. Whether a rising judiciary will truly challenge British notions of parliamentary sovereignty is as yet unknown, but scholars and politicians should pay close attention to the groundwork being laid.

Book Announcement: Francesca Strumia, Supranational Citizenship and the Challenge of Diversity (Martinus Nijhoff)

Network member Francesca Strumia (University of Torino & Cleary Gottlieb/Milan) has let us know that her new book, Supranational Citizenship and the Challenge of Diversity: Immigrants, Citizens and Member States in the EU, has just appeared from Martinus Nijhoff Publishers.  More details can be found here and the publisher's blurb is below.  Congratulations Francesca.

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In Supranational Citizenship and the Challenge of Diversity Francesca Strumia explores the potential of European citizenship as a legal construct, and as a marker of group boundaries, for filtering internal and external diversities in the European Union. Adopting comparative federalism methodology, and drawing on insights from the international relations literature on the diffusion of norms, the author questions the impact of European citizenship on insider/outsider divides in the EU, as experienced by immigrants, set by member states and perceived by “native” citizens. The book proposes a novel argument about supranational citizenship as mutual recognition of belonging. This argument has important implications for the constitution of insider/outsider divides and for the reconciliation of multiple levels of diversity in the EU.

Call for Papers: The Law and Politics of Multi-Level Governance -- A Jean Monnet Research Workshop at Rutgers University, June 14-15, 2013

The Jean Monnet Chair at Rutgers University, held by network member Dan Kelemen, is pleased to invite paper proposals for a Research Workshop on the theme of “The Law and Politics of Multi-Level Governance”. When the European Communities were established, the European Court of Justice was composed of a handful of judges and staff members, there was very little European law to interpret, and few national courts actively participated in the community legal system. In the decades since, the scope of European law has expanded dramatically, the Court of Justice itself has grown into a much larger institution and the network of national courts that cooperate (and sometimes conflict) with the European Court in the interpretation and application of EU law has burgeoned. Today thousands of judges across twenty-seven member states are trained in European law, participate in EU-related judicial networks and engage with the EU courts in Luxembourg. This workshop will bring together scholars of European legal integration, multi-level governance and comparative federalism to explore the construction of this multi-level legal system and the interactions between the national and EU level courts and the governments that comprise it.

The workshop will take place on June 14-15, 2013, at Rutgers University in New Brunswick, NJ.  The workshop is sponsored by the Center for European Studies and the Jean Monnet Chair at Rutgers University. The Jean Monnet program will cover the costs of travel (economy class) and accommodation for participants and will provide a modest honorarium. We ask each workshop participant to prepare a draft paper for the conference, which participants will be asked to revise into an article following the conference as part of a journal special issue.

Scholars interested in participating should submit a letter of interest, curriculum vitae, and an abstract of their proposed paper to Prof R. Daniel Kelemen at european@rci.rutgers.edu by Feb 28, 2013. There are a limited number of slots available. Selections will be announced in early March.