Safe harbours are hard to find: the trans-Atlantic data privacy dispute, territorial jurisdiction and global governance

Abstract

The trans-Atlantic dispute over application of the European Union's Data Directive (1995) is discussed as a case study of an emerging geographic incongruity between the reach and domain of the territorially-defined Westphalian state and the deep and dense network of economic relations. The article reviews significant EU-US differences about the meaning of privacy and the means to protect it, the history of attempts to apply its provisions to information transferred to the US, and the less than satisfactory attempt at resolution – the Safe Harbor agreement. It then argues that attempting to apply the Directive to transactions on the Internet raises fundamental questions about the meaning of borders, territorial sovereignty and political space and explores the implications for territorial jurisdiction and global governance at some length.

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