The Trans-Atlantic Data Privacy Dispute, Territorial Jurisdiction and Global Governance

Abstract

The dispute arising from the European Union's attempts to protect information privacy raises difficult questions about territorial jurisdiction and democratic governance, indeed how political community and political space are defined in the digital age. This paper looks at the trans-Atlantic dispute over application of the European Union's Data Directive (1995) in the context of the emerging geographic incongruity between the reach and domain of the territorially defined Westphalian state and the deep and dense network of international economic relations. It examines the very significant EU-U.S. differences about the both the meaning of privacy and appropriate means to protect it, and reviews the development of data privacy protection in both regions. It then looks at the dispute over attempts to apply the Directive to information 'transferred' to the U.S., and the less than satisfactory attempt at resolution - the Safe Harbor agreement. It argues that the Directive was developed in the pre-Cyberspace era and that attempts to apply its provisions to transactions on the Internet raises very fundamental questions about the meaning of borders, territorial sovereignty and political space. It concludes by exploring the implications for territorial jurisdiction and global governance at some length.