21 - Evaluation of US and EU Data Protection Policies Based on Principles Drawn from US Environmental Law

Summary

INTRODUCTION\

Like all international regulatory agreements, creating standards of trans- Atlantic data protection that satisfy all parties is no easy feat As seen with the recent Schrems case striking down the Safe Harbour Agreement, we are far from finding an appropriate arrangement that works Although US Federal Trade Commissioner Julie Brill argued that the US and EU share ‘an overwhelming degree’ of principles and goals, it is an objective fact that the EU demands high standards for the personal data protection of its citizens The US model of self-regulation and'sector specific … regulatory fragmentation ‘does not mesh with the systematic coverage required by the EU While the standards of the European Union will remain the ‘benchmark’ for other countries to meet, that is not to say that there are no lessons to be learned from the United States at all; they just are not in the realm of data protection, but rather environmental protection In fact, robust comparisons can be made to how we conceptualise both data and the environment, as well as how the initial regulatory schemes of the two arenas have developed In turn, this comparison also allows us to anticipate what the second iteration of data protection should look like by understanding how environmental protection developed in the United States aft er the initial wave of regulations in the 1960s and 1970s.

Making sure that public policy is able to effectively regulate the newest technology has been one of the biggest challenges of the past century, and will certainly only increase in difficulty and importance in the coming decades Policies, for better or worse, are oft en implemented incrementally, which makes it almost impossible to cover the almost exponential increases in technological capabilities and applications Rapid advancement puts the public, including policy-makers, at a disadvantage for understanding the technological changes impacting their lives This dichotomy between the reality of the problem and comprehension (or lack thereof) describes the state of privacy policy since its inception While this problem is true for all kinds of policy, it is especially relevant to technology regulation.