Against All Odds: Why There Is No International Information Regime

Abstract

For the past decade, the United States and the European Union have been attempting to negotiate an international regime governing information privacy and encryption. They have gone back to the negotiating table repeatedly in an effort to conclude an agreement that provides an international legal framework for a critical sector of the economy. Many people argue that some agreement is needed because globalization based on information technologies is driving the economies of Europe and the United States toward economic convergence. The politically and economically powerful United States has in recent years become increasingly interested in negotiating with the Europeans, especially over encryption, in which it perceives vital interests to be at stake. Despite this, the negotiators have met with only limited success. The bilateral partners have not succeeded in constructing a comprehensive and coherent set of rules, norms and procedures for electronic exchanges. In comparing privacy and encryption policy arenas, we would expect the two actors to be most successful in creating an information privacy regime, since the economic incentives are high. Encryption involves issues of national security that could be expected to block successful negotiations. Instead, encryption policies are slowly converging through export control liberalization, whereas privacy negotiations have produced a partial regime based on mutual recognition that preserves the two parties' differences. We argue that this outcome results from the way in which the issues were negotiated in separate arenas with different players, the differences in the relationship between business and government in Europe compared to the United States, and the preferences of commercial interests in the United States that have consistently lobbied against a common regime for information regulation. We argue that the United States is less able to ensure its own preferred outcome in vital areas than could be expected from its powerful position. We conclude that it will become more likely in these and other commercial arenas that the United States and the European Union (EU), and potentially other trade partners, will construct partial regimes that preserve national preferences but facilitate international exchange.