Trans-Atlantic Data Privacy Relations as a Challenge for Democracy

'I think you are misunderstanding the perceived problem here, Mr President. No one is saying that you broke any laws. We are just saying it is a little bit weird that you did not have to.’ - John Oliver
Dan Svantesson, Dariusz Kloza
European Integration and Democracy Series
book | published | 1st edition
May 2017 | xl + 568 pp.



ISBN 9781780684345

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ISBN 9781780685786

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‘I think you are misunderstanding the perceived problem here, Mr President. No one is saying that you broke any laws. We are just saying it is a little bit weird that you did not have to.’

- John Oliver
The Daily Show, 10 June 2013

‘John Oliver formulated in this context the very question about the limits, about the use and abuse, of the law and of the state’s power when it comes to global mass surveillance practices. Where does lie the ‘thin red line’ between the two legitimate yet seemingly competing interests: national security and privacy? […] The result we present to the reader might seem merely another book about the Snowden affaire and the fall of Safe Harbor, but these two have been (only) an inspiration. Our object of interest is the protection of data privacy in relations between Europe and Americas as a challenge for democracy, the rule of law and fundamental rights. […] The present book is very clearly an anthology – it is a compilation of diverse contributions, from different perspectives, within a broad topic. Our aim with this volume is to highlight a selection of particularly ‘hot’ questions within the topic of trans-Atlantic data privacy relations as they look at the end of 2016. […] In the final chapter, we draw out and highlight those themes we see emerging within the body of this work. We eventually attempt to suggest a few lessons de lege ferenda.

- from the Preface by the editors
‘Under the ‘Lisbon Treaties’, which are in force since 2009, the European Union regards itself as a distinct political entity, which is not a federation of Member States, but it is held together – as Luuk van Middelaar says – with a “unique, invisible glue”. This connection is grounded with shared goals. One of them – expressed both in the Treaty on the Functioning of the European Union (Article 16) and in the Charter of Fundamental Rights of the European Union (Articles 7 and 8) is a unique obligation to protect personal data. Stating that everyone has the right to the protection of personal data concerning them, the European Union feels obliged to observe how safe is the data both held in its territory and transferred outside thereof’

- from the Foreword by Wojciech R. Wiewiórowski,
Assistant European Data Protection Supervisor

‘Privacy and data protection are topics of international significance. While the EU–US relationship gets a great deal of attention, there are also many crucial issues of a more global nature. This book includes contributors of international stature who deal with Snowden and Safe Harbour, but also go beyond them to address some of the key topics affecting privacy at the international level. The topics are timely and the authors highly qualified, and the book will be of interest to anyone interested in privacy and data protection law and policy.’

– Dr Christopher Kuner,
Co-Director, Brussels Privacy Hub, Vrije Universiteit Brussel,
editor-in-chief, International Data Privacy Law

Table of Contents

Table of Contents (p. 0)


1. Transnational Data Privacy in the EU Digital Single Market Strategy (p. 5)

2. Principles for US–EU Data Flow Arrangements (p. 27)

3. The Role of Proportionality in Assessing Trans-Atlantic Flows of Personal Data (p. 49)

4. US Surveillance Law, Safe Harbour and Reforms Since 2013 (p. 85)

5. The Paper Shield: On the Degree of Protection of the EU–US Privacy Shield against Unnecessary or Disproportionate Data Collection by the US Intelligence and Law Enforcement Services (p. 127)

6. International Data Transfers in Brazil (p. 149)

7. From ACTA to TTIP: Lessons Learned on Democratic Process and Balancing of Rights (p. 159)

8. Free Trade Agreements and Data Privacy: Future Perils of Faustian Bargains (p. 181)

9. Nine Takeaways on Trade and Technology (p. 213)

10. Extraterritoriality in the Age of the Equipment-Based Society: Do We Need the ‘Use of Equipment’ as a Factor for the Territorial Applicability of the EU Data Protection Regime? (p. 221)

11. Jurisdictional Challenges Related to DNA Data Processing in Transnational Clouds (p. 241)

12. Regulating Economic Cyber-Espionage among States under International Law (p. 263)

13. Terrorism and Paedophilia on the Internet: A Global and Balanced Cyber-Rights Response Is Required to Combat Cybercrime, Not Knee-Jerk Regulation (p. 287)

14. Understanding the Perpetuation of ‘Failure’: The 15th Anniversary of the US Terrorist Finance Tracking Programme (p. 305)

15. Does It Matter Where You Die? Chances of Post-Mortem Privacy in Europe and in the United States (p. 313)

16. The Right to be Forgotten, from the Trans-Atlantic to Japan (p. 321)

17. Is the Definition of Personal Data Flawed? Hyperlink as Personal Data (Processing) (p. 331)

18. Big Data and ‘Personal Information’ in Australia, the European Union and the United States (p. 347)

19. Blending the Practices of Privacy and Information Security to Navigate Contemporary Data Protection Challenges (p. 379)

20. It’s All about Design: An Ethical Analysis of Personal Data Markets (p. 391)


21. Evaluation of US and EU Data Protection Policies Based on Principles Drawn from US Environmental Law (p. 407)

22. Flagrant Denial of Data Protection: Redefining the Adequacy Requirement (p. 429)

23. A Behavioural Alternative to the Protection of Privacy (p. 451)

24. The Future of Automated Privacy Enforcement (p. 507)

25. Moving Beyond the Special Rapporteur on Privacy with the Establishment of a New, Specialised United Nations Agency: Addressing the Deficit in Global Cooperation for the Protection of Data Privacy (p. 521)

26. Convention 108, a Trans-Atlantic DNA? (p. 533)

27. Landscape with the Rise of Data Privacy Protection (p. 545)

About the series:

European Integration and Democracy Series

European Integration and Democracy is a double peer-reviewed book series dedicated to the analysis of the challenges to democracy posed by the process of European integration, using interdisciplinary (law, history, political science, etc.) and comparative perspectives. Each volume in the series is usually devoted to a single aspect of these challenges. The intended readership includes policy makers, legal practitioners, academics and advanced students interested in a critical analysis of the interaction between the European integration and the concept of democracy.

The series was launched in 2012 and is managed by the Centre for Direct Democracy Studies (CDDS) at the Faculty of Law, University of Białystok, Poland. The Centre is devoted to analytical, theoretical, prospective and comparative research on direct democracy, democratic deficit and the role of direct democracy in regional integration. Intersentia became the series’ publisher in 2014.

Editors-in-Chief: Elżbieta Kużelewska (University of Białystok, Poland) and Dariusz Kloza (University of Ghent, Belgium).

Editorial board: Daniel Barnhizer (Michigan State University, United States of America), Tomas Berkmanas (Vytautas Magnus University, Kaunas, Lithuania), Filip Křepelka (Masaryk University, Brno, Czech Republic), Erich Schweighofer (University of Vienna, Austria), Ryszard Skarzyński (University of Białystok, Poland) and Konstanty A. Wojtaszczyk (University of Warsaw, Poland).

The first two volumes in the series were published by Aspra-JR and can be downloaded in open access (click on the title):
- Kużelewska Elżbieta and Kloza Dariusz (eds.) (2012) The Challenges of Modern Democracy and European Integration. European Integration and Democracy Series, Vol. 1, Aspra, Warszawa, 249 pp.

- Kużelewska Elżbieta and Kloza Dariusz (eds.) (2013) Elections to the European Parliament as a Challenge for Democracy. European Integration and Democracy Series, Vol. 2, Aspra, Warszawa, 372 pp.

More about this series