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DP 2017 102 Tarrow A Service of Leibniz-Informationszentrum econstor Wirtschaft Leibniz Information Centre Make Your Publications Visible. zbw for Economics Tarrow, Sidney Working Paper Close interaction, incompatible regimes, contentious challenges: The transnational movement to protect privacy WZB Discussion Paper, No. SP IV 2017-102 Provided in Cooperation with: WZB Berlin Social Science Center Suggested Citation: Tarrow, Sidney (2017) : Close interaction, incompatible regimes, contentious challenges: The transnational movement to protect privacy, WZB Discussion Paper, No. SP IV 2017-102, Wissenschaftszentrum Berlin für Sozialforschung (WZB), Berlin This Version is available at: http://hdl.handle.net/10419/156334 Standard-Nutzungsbedingungen: Terms of use: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Documents in EconStor may be saved and copied for your Zwecken und zum Privatgebrauch gespeichert und kopiert werden. personal and scholarly purposes. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle You are not to copy documents for public or commercial Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich purposes, to exhibit the documents publicly, to make them machen, vertreiben oder anderweitig nutzen. publicly available on the internet, or to distribute or otherwise use the documents in public. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, If the documents have been made available under an Open gelten abweichend von diesen Nutzungsbedingungen die in der dort Content Licence (especially Creative Commons Licences), you genannten Lizenz gewährten Nutzungsrechte. may exercise further usage rights as specified in the indicated licence. www.econstor.eu Sidney Tarrow CLOSE INTERACTION, INCOMPATIBLE REGIMES, CONTENTIOUS CHALLENGES: The Transnational Movement to Protect Privacy Discussion Paper SP IV 2017–102 February 2017 WZB Berlin Social Science Center Research Area International Politics and Law Research Unit Global Governance Wissenschaftszentrum Berlin für Sozialforschung gGmbH Reichpietschufer 50 10785 Berlin Germany www.wzb.eu Copyright remains with the authors. Discussion papers of the WZB serve to disseminate the research results of work in progress prior to publication to encourage the exchange of ideas and academic debate. Inclusion of a paper in the discussion paper series does not constitute publication and should not limit publication in any other venue. The discussion papers published by the WZB represent the views of the respec- tive authors and not of the institute as a whole. Sidney Tarrow [email protected] CLOSE INTERACTION, INCOMPATIBLE REGIMES, CONTENTIOUS CHALLENGES: The Transnational Movement to Protect Privacy Discussion Paper SP IV 2017–102 Wissenschaftszentrum Berlin für Sozialforschung (2017) Affiliation of the authors other than WZB Sidney Tarrow Cornell University Abstract CLOSE INTERACTION, INCOMPATIBLE REGIMES, CONTENTIOUS CHALLENGES: 1 The Transnational Movement to Protect Privacy by Sidney Tarrow Scholars and legal practitioners have found profound differences between the privacy practices of Europe and the United States. This has produced incompatible regimes of regulation, causing serious normative and political issues. This conflict – originally centered on the exchange of commercial data -- became increasingly more acute after 9/11, as American policy-makers saw digital data as a major source of intelligence and Europeans become frightened of the impact of American surveillance. On the cusp of 9/11, the EU and the US had negotiated a peculiar mixed- level agreement – the “Safe Harbor” agreement -- to regulate the behavior of firms exchanging data across the Atlantic. The Snowden affair and related revelations showed how badly this agreement worked, producing incentives for European advocates to challenge “Safe Harbor” in court in 2015, resulting in a new – but still untested – agreement in 2016, and influencing the shape of the EU’s new data regulatory authority. These interactions raise three kinds of problems for scholars of global governance and social movements: First, how does the combination of close interaction and incompatible regimes af- fect the capacity of states and other actors to resolve problems of international collaboration? Second, how have international institutions responded to these challenges? Third, such disputes raise the puzzle of how digital globalization has affected the difficult process of the formation of transnational movements. I will argue that – two decades after the start of digital globalization – it has taken critical junctures like 9/11 and the Snowden revelations to produce the political opportunity for the formation of a trans-Atlantic movement on behalf of privacy. Keywords: privacy, transatlantic movements, safe harbor, privacy shield 1 This paper is a revised version of a colloquium paper presented to the Global Governance Department at the Berlin Social Science Center in October, 2016. I wish to record my gratitude to Henry Farrell, Abe New- man, Pris Regan, Christian Kreuder-Sonnen, and Lee Tien for their help in the preparation of this paper and to Emilio Lehoucq for the research assistance for the empirical analysis in Part Five. I would also like to thank Colin Bennett, Lance Bennett, Mike Dorf, Kristin Eichensehr, Christian Kreuder-Sonnen, Gary Marks, Jörg Pohle, Agustin Rossi. Rebecca Slayton, Ben Wagner and the members of the Internet Policy Group at the WZB for comments on a draft of the paper. The title, as well as the organization of the material, was sug- gested by Bob Keohane, adding to three decades of collegiality and friendship. 1 Zusammenfassung ENGE WECHSELWIRKUNGEN, INKOMPATIBLE REGIME, UMSTRITTENE HERAUSFORDERUNGEN Die transnationale Bewegung zum Schutze der Privatsphäre von Sidney Tarrow Wissenschaftler und Rechtsanwälte haben tiefgreifende Unterschiede zwischen den Daten- schutzpraktiken Europas und den Vereinigten Staaten gefunden. Dies hat zu unvereinbaren Re- gulierungsregimen geführt, welche ernsthafte normative und politische Probleme darstellen. Dieser Konflikt, der sich ursprünglich auf den Austausch von kommerziellen Daten konzentrier- te, wurde nach dem 11. September zunehmend akuter, da die amerikanischen Entscheidungsträ- ger die digitalen Daten als wichtige Intelligenzquelle sahen und die Europäer Angst vor den Auswirkungen der amerikanischen Überwachung entwickelten. Im Kontext des 11. September hatten die EU und die USA eine Vereinbarung - das "Safe Harbor" - Abkommen ausgehandelt, um das Verhalten von Firmen zu regeln, die Daten über den Atlantik austauschen. Die Snowden- Affäre und die damit zusammenhängenden Enthüllungen zeigten jedoch, wie schwach diese Ver- einbarung war. So konnten Anreize für die europäischen Befürworter geschaffen werden, um "Safe Harbor" im Jahr 2015 vor Gericht anzufechten. Dies führte demzufolge im Jahr 2016 zu einer, noch nicht getesteten, Vereinbarung, welche die Form der neuen EU-Regulierungsbehörde beeinflussen könnte. was zu einer neuen - aber noch nicht getesteten - Vereinbarung im Jahr 2016 führte und die Form der neuen EU Datenregulierungsbehörde beeinflusst. Diese Wechselwirkungen werfen drei grundsätzliche Probleme für Wissenschaftler der Global Governance und sozialer Bewegungen auf: Erstens, beeinflussen die Kombination von enger In- teraktion und inkompatiblen Regimen die Fähigkeit von Staaten und anderen Akteuren, Proble- me internationaler Zusammenarbeit zu lösen? Zweitens, wie haben internationale Institutionen auf diese Herausforderungen reagiert? Drittens, stellen solche Auseinandersetzungen dar, wie die digitale Globalisierung den schwierigen Prozess der Bildung transnationaler Bewegungen beeinflusst hat? Ich behaupte, dass es - zwei Jahrzehnte nach Beginn der digitalen Globalisierung - kritische Umstände wie den 11. September und die Snowden-Enthüllungen brauchte, um die politische Chance zur Bildung einer transatlantischen Bewegung im Namen der Privatsphäre zu schaffen. Stichwörter: Datenschutz, transatlantische Bewegung, safe harbor, privacy shield 2 This paper is dedicated to the memory of Alan Westin, who en- couraged me to publish my first article, which emerged from a term paper written for his course at Columbia in 1961. 3 On October 5, 2015, The Court of Justice of the European Union (CJEU) ruled that the United States’ “Safe Harbor” agreement, which has, since 2000, regulated the transfer of data of Europe- 2 an origin to the United States, was invalid. The ruling came when an Austrian privacy advocate, Max Schrems, brought a case to the Court against Facebook, which maintains its European data center in Ireland. Schrems claimed that his privacy had been violated by the U.S. National Secu- rity Agency’s mass-surveillance programs, which had been revealed by whistle-blower Edward 3 Snowden in 2013 to be sweeping up enormous amounts of data – some of it European in origin . The Irish data protection agency held that it had no authority to monitor what Facebook did with 4 the data it transferred from Europe to the U.S. and the Irish High Court referred the dispute to the CJEU, which decided that the Safe Harbor agreement was incompatible with EU laws and con- 5 ventions. What is Happening Here? This story illustrates three things that will guide the analysis that follows: First , firms like Facebook and their ability to move data quickly across borders constitute the “close interaction” in the first part of the title of this paper. 2 The Safe
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