Privacy and/or Trade

Anupam Chander

Scott K. Ginsburg Professor of Law and Technology, Georgetown University.

Paul Schwartz

Jefferson E. Peyser Professor, U.C. Berkeley School of Law.

For their helpful suggestions on previous drafts, we would like to thank Kathleen Claussen, Jill Goldenziel, Sylvia Lu, Indra Spieker, Lior Strahilevitz, and David Vladeck. We are grateful to a dream team of research assistants at Berkeley and Georgetown: Shayanna Ahuja, María José Badillo, Ryan Campbell, Robert Fairbanks, Gabriela Gabbidon, Saabhir Gill, Kiana Harkema, Joey Kingerski, Leo Koepp, Meet Mehta, Emma Neukrug, Sudipt Parth, Rishi Ray, Sophia Wallach, and Andy Zachrich. For superb editing, we thank Ian Howard and his colleagues on the University of Chicago Law Review. This Article is dedicated to the memory of Professor Joel R. Reidenberg, a great figure in privacy law and a cherished friend.

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Abstract

International privacy and trade law developed together but are now engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power trade today.

The promise of a global internet, with access for all, including companies from the Global South, is increasingly remote. This Article uncovers the forgotten and fateful history of the international regulation of privacy and trade that led to our current crisis and evaluates possible solutions to the current conflict. It proposes a Global Agreement on Privacy that would be enforced within the trade order, but with external data-privacy experts developing the treaty’s substantive norms.

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