The Politics of Data Transfer: Transatlantic Conflict and Cooperation over Data Privacy

151 Pages·2017·1.619 MB·English

by  Yuko Suda

The Politics of Data Transfer
In this book, Yuko Suda examines the Safe Harbor debate, the passenger
name record (PNR) dispute, and the Society for Worldwide Interbank
Financial Transactions (SWIFT) affair to understand the transfer of personal
data from the European Union (EU) to the United States. She argues that
the Safe Harbor, PNR, and SWIFT agreements were made to mitigate the
potentially negative effects that may arise from thebeyond-the-border reach
of EU data protection rules or US counterterrorism regulation. A close
examination of these high-profilecases wouldreveal how beyond-the-border
reach of one jurisdiction’s regulation might affect another jurisdiction’s policy
and what responses the affected jurisdiction possibly makes to manage the
effects of such extraterritorial regulation.
The Politics of Data Transfer adds another dimension to the study of transat-
lanticdataconflictsbyassumingthatthecasesexemplifynotonlythepoliticsof
data privacybut also the politics of extraterritorial regulation. A welcome and
timely collection uncoveringthe evolution of and prospectsfor the politicsof
dataprivacyinthedigitalizedandinterconnectedworld.
Yuko Suda is a part-time lecturer at Tokyo University of Foreign Studies,
Japan.
Routledge Studies in Global Information, Politics and
Society
Edited by Kenneth Rogerson, Duke University and Laura Roselle, Elon
University
International communication encompasses everything from one-to-one
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whichothersubjects rest.Thisseriesprovidesa publishingspaceforscholarship
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10. Beyond the Internet
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Transatlantic Conflict and Cooperation over Data Privacy
Yuko Suda
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The Politics of Data
Transfer
fl
Transatlantic Con ict and Cooperation
over Data Privacy
Yuko Suda
Firstpublished2018
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Contents
Foreword vi
Acknowledgements vii
Introduction 1
1 The Politics of Data Privacy 10
2 The Politics of Extraterritorial Regulation 19
3 The EU Data Protection Directive 30
4 From Safe Harbor to Privacy Shield 38
5 The PNR Dispute 55
6 The EU PNR Directive 71
7 The SWIFT Affair 81
8 Data Privacy and Free Trade Agreements 94
9 Conclusion 109
References 121
Index 136
Foreword
By Kenneth Rogerson and Laura Roselle, series editors
In the early, heady days of internet diffusion, the term “borderless” was used
to evoke the excitement of global communication in which traditional geo-
political boundaries were immaterial. Experience has taught us that this
euphoria was never as real as it seemed. Yuko Suda dives deeply into the
politics of global data flows, reminding us of how relevant the understanding
of attempts to regulate these flows really are. While, at times, regulations feel
piecemeal and even haphazard, their existence has consequences, both within
countries and elsewhere. Understanding the relationship between global
communication and the state has never been more important.
Acknowledgements
Thisbookhasevolvedfrommyarticle,“TransatlanticPoliticsofDataTransfer:
Extraterritoriality,Counter-ExtraterritorialityandCounter-Terrorism,”which
was published in the Journal of Common Market Studies (JCMS), Volume 51,
Issue 4, July 2013. The article is a comparative case study of the passenger
name record (PNR) dispute, the Society of Worldwide Interbank Financial
Transactions (SWIFT) affair, and the Container Security Initiative (CSI),
focusing on the extraterritorial reach of the counterterrorism regulation of
the United States (US) and the data protection regulation of the European
Union (EU). My approach to analyzing these cases using the concept of
extraterritoriality was influenced by an article by Miles Kahler and David A.
Lake titled “Economic Integration and Global Governance: Why So Little
Supranationalism?” (Walter Mattli and Ngaire Woods, eds, The Politics of
GlobalRegulation,Princeton:PrincetonUniversityPress,2009).Inthissense,
this book, which is an extension of my JCMS article, was inspired by the
account of the SWIFT case that Kahler and Lake provided in their highly
stimulating article.
A book cannot be produced with a wave of a magic wand. While it was
a long and complicated process, I was fortunate to have received a lot of
support and assistance. I greatly appreciate the helpful comments from
the series editors, Kenneth Rogerson and Laura Roselle, as well as the two
anonymousreviewers.
I am heartily thankful to David Wessels for his help, guidance, and
encouragement during the writing of this book. I also would like to thank
Yuichi Morii, who was kind enough to read my manuscript and offer
valuable comments and suggestions with his expertise in EU politics.
I would like to express my gratitude to Kazuto Suzuki, Yoko Kawamura,
and Fumio Shimpo for their kind assistance.
Part of the research for this book was presented at the 2011 Annual
Convention of the Japan Association of International Relations. I am grateful
to Yukio Maeda, Naofumi Miyasaka, Heigo Sato, and other participants in
the session for their feedback.
The research for this book was furthered by a grant from the Tele-
communications Advancement Foundation. With this financial support, I
viii Acknowledgements
wasabletoflytoBrusselsandconductinterviewswithofficialsoftheEuropean
Commission and with the European Data Protection supervisor, who
kindly spared some time for me. I have also benefited from a research grant
from the KDDI Foundation.
The manuscript of this book was edited for language by Editage. I never
thought I would write a book in English, which is not my native language.
But somehow I did.
Introduction
With advanced information communication technology, it is now routine
to collect, process, use, store, and transfer various kinds of data across national
borders. Cross-border flows of data, indeed, are soaring and connecting more
countries, organizations, andpeople. According to oneanalysis, cross-border
data flows grew 45 times larger between 2005 and 2014 (McKinsey Global
Institute 2016). The rise of the internet, of course, has contributed to this
exponential growth; between 2000 and 2015, internet penetration has
increased almost sevenfold from 6.5 to 43 percent of the global population
(ITU 2015). Recent technological developments, most notably “cloud
computing,” are further increasing the volume and complexity of data
flows. Nowadays, data might be collected in Berlin, processed in Bangalore,
stored in Boston, and accessed from Brisbane.
Among the enormous digital streams are data that contain personal
information,suchasnames,addresses,telephonenumbers,andemailaddresses.
In fact, myriad activities undertaken by individuals and businesses—ranging
from shopping at a “foreign” website to chatting with a friend abroad
through a social networking service (SNS) to transnational corporations
managing employee and customer records—generate flows of personal data
acrossborders.Inaddition,somegovernmentactivitiesalsoentailcross-border
flows ofpersonally identifiableinformation. Sharing of information between
law enforcement authorities of different countries is a good example. By all
accounts, cross-border flows of personal data are crucially important in
economic, social, and political terms.
Significantly, while data flow across national borders and territoriality
appearstobelosingitssalienceinthisfield,collection,processing,use,storage,
and transfer of personal data are regulated primarily by national data pro-
tection or privacy laws that are enacted and enforced within territorially
based jurisdictions (Gellman 1999; Reidenberg 1999). This means that the
reach of law or regulation is incongruent with the geographical scope of
what is being regulated, possibly leading to overlapping jurisdictional claims
by different states.
To make matters more complicated, there exist considerable differences
among national data privacy laws and regulations, which in turn reflect