The First Generation
Edited by James B. Rule
Chapter 1: International Agreements to Protect Personal Data
1. International agreements to protect personal data Lee A. Bygrave CLEAVAGE, CO-OPERATION AND THE INCREASING WEIGHT OF THE WORLD ‘This is not bananas we are talking about.’ Thus spake Spiros Simitis when describing the European view of privacy in an interview with the New York Times in May 1999.1 Simitis, Europe’s de facto privacy doyen,2 made his remark at a time when the European Union (EU) was locked in a dispute with the United States of America (USA) over what constitutes adequate protection of personal data. The primary catalyst for the dispute was the adoption by the EU of a Directive on data protection in 1995.3 The Directive places a qualified restriction on flow of personal data from the EU to any non-EU member state failing to offer ‘adequate’ protection of personal data. For many nonEuropeans, this seemed to be a case of the EU legislating for the rest of the world and, indeed, legislating to the detriment of legitimate business interests. Concern about such detriment was especially strident in the USA. There, federal government officials had estimated that the restriction threatened up to USD120 billion in trade – an amount far greater than had supposedly been at stake in previous trans-Atlantic trade conflicts.4 In May 1999, the dispute between the EU and USA had entered a particularly tense stage. After months of negotiations, talks were stalling, each side claiming that the other was trying to impose unacceptable terms.5 It was a time of brinkmanship in the setting of trans-Atlantic...
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