Kernochan Center for Law, Media and the Arts
Privacy has joined one of many areas of law understandable only by reference to the results of overlapping and conflicting national agendas. What has emerged as the de facto international regime is complex. Yet based on a few simplifying principles, we can nonetheless do much to understand it and predict its operation.
First, the idea that self-regulation by the internet community will be the driving force in privacy protection must be laid to rest. The experience of the last decade shows that nation-states, powerful nation-states in particular, drive the system of international privacy. The final mix of privacy protection that the world's citizens receive is disproportionately dictated by the choices and preferences of powerful nation-states and their respective effects on giant and small targets.
Second, traditional conflicts analysis can help explain and predict the future course of privacy analysis. Privacy regulation can be understood as a species of information regulation to which companies and individuals will respond in predictable ways. The analysis here shows an international privacy system that has fractured into three distinct regulatory patterns. Mainstream privacy, or transactional privacy, has become dominated by the rule of the most restrictive state, a pattern familiar to other areas like the world's regulation of competition (antitrust). Conversely, the problem of information theft has been pushed by the international system toward a kind of a race to the bottom, or to the least restrictive rule. Most akin to international piracy (the kind on boats), it is a familiar problem to international law that will nonetheless take considerable political will to reverse. And finally, while there is a potential for the international system to influence how governments handle the privacy information of their own citizens, the direct collision of interests have limited the extent to which governments police one another.
The International Privacy Regime,
Securing Privacy in the Internet Age, Anupam Chander, Lauren Gelman & Margaret Jane Radin, Eds., Stanford Law Books, 2008
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1345