Transatlantic Privacy Regulation: Conflict and Cooperation

Regulatory differences in the data privacy arena have been a recurring source of contention in transatlantic trade relations. In the 1990s, the focus was primarily on differences in the rules governing market actors. Over the past decade, however, the focus has expanded to include the public sector and the policies regulating the collection and use of personal data by government actors, particularly national security agencies. This article surveys the considerable history of transatlantic relations in the privacy area and the attempts that have been made to reconcile legal and policy differences in the interest of trade liberalization and police and national security cooperation. It then turns to the current dispute over National Security Agency (NSA) surveillance and discusses the factual and legal underpinnings of the dispute. The article demonstrates how this latest episode in transatlantic privacy both underscores longstanding legal differences and reveals fresh ones. The article concludes with observations regarding the impact of the NSA dispute on transatlantic privacy relations and on trade relations more broadly speaking.