A Transatlantic Privacy Pact?: A Sceptical View
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Description
Everywhere in the world, twentieth-century safeguards for privacy vis-à-vis the government were radically incomplete. But individuals nonetheless had many practical ways to shield private information. The digital revolution has upended this structure. Government access to personal information and its ability to extract revealing personal details from them are exponentially simplified. Although these developments largely work to the advantage of State surveillance, law enforcement has its own needs for clarification, at the same time that citizens need new means of refuge from state scrutiny. Prominent privacy and human-rights advocates urge that the answer to these problems lies in a multilateral agreement requiring states to adhere to uniform, privacy-sensitive standards, with no discrimination between their own nationals and those of other countries. An international movement of privacy activists is promoting a ‘Snowden Treaty’ to achieve a similar objective. As a substantive matter, it is surely right to consider the problem from the perspective of universal human rights. Yet as an institutional matter, the turn to an international agreement will sideline the courts, disempower legislative bodies and privacy advocates, defuse commercial pressure for strong privacy safeguards, and create a dynamic controlled almost exclusively by the executive and its national security establishment. I do not want the fox to design this henhouse. This essay explains why that would happen in a multilateral process and why its consequences for worldwide privacy are not attractive. On the contrary, national sovereignty should continue to frame the search for solutions. Part I describes privacy protection in the pre-digital world and explains how the digital era has eroded many practical safeguards. Part II summarises recent proposals for restoring a more privacy-protective environment by means of international agreements. The remainder of the paper argues that these well-intentioned proposals are unlikely to accomplish their objective. Although the ultimate concern is for privacy and democracy worldwide, Part III opens the analysis parochially, by arguing that a multilateral approach would be bad for Americans. Part IV argues that international agreements would be bad for privacy and democracy in the rest of the World as well, because American commitments to national security oversight can exert a stronger upward pull on global norms than can the terms of any foreseeable international agreement. Paradoxically, the jurisdictional competition that usually precipitates a ‘race to the bottom’ is more likely, in this context, to prompt a ‘race to the top’. This author takes no pride in supporting an approach that bears an uncomfortable resemblance to celebratory ‘American exceptionalism’. That concept has a well-deserved reputation for moral insensitivity and catastrophic consequences. In the setting of the global privacy dilemma, however, the normally powerful attractions of international co-operation and universal conceptions of human rights present distinct dangers. The effort to find international common ground in this area should not be encouraged but instead cautiously opposed.
Source Publication
Surveillance, Privacy and Trans-Atlantic Relations
Source Editors/Authors
David D. Cole, Federico Fabbrini, Stephen Schulhofer
Publication Date
2017
Recommended Citation
Schulhofer, Stephen J., "A Transatlantic Privacy Pact?: A Sceptical View" (2017). Faculty Chapters. 1376.
https://gretchen.law.nyu.edu/fac-chapt/1376
