Greenleaf, Graham; Waters, Nigel --- "Obama’s Privacy Framework: An offer to be left on the table?" [2012] UNSWLRS 56

Last Updated: 10 December 2012

Obama’s Privacy Framework: An offer to be left on the table?

Graham Greenleaf, University of New South Wales
Nigel Waters, University of New South Wales

This paper is available for download at Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2187234

Citation

This paper was published in Privacy Laws & Business International Report, Issue 119: 6-9, October 2012. This paper may also be referenced as [2012] UNSWLRS 56.

Abstract

The Obama Administration is offering the rest of the world a deal: ‘global interoperability’, comprising ‘mutual recognition and enforcement cooperation’. Perhaps we should read the small print. The ‘Framework’ initiative (Consumer data privacy in a networked world: A framework for protecting privacy and promoting innovation in the global digital economy, The White House, Washington, February 2012), launched in early 2012, represents a new level of serious consideration of privacy protection by a US Administration. While it is difficult to assess how much of it it is likely to be achieved in the face of both political gridlock and constitutional uncertainties, it is clearly in the interest of Americans that their government is attempting to take these steps to improve domestic privacy protections. But does this initative offer sufficient of value to the rest of the world, for the price of ‘interoperability’?
This article looks at the proposed Framework from the following explicitly ‘non-US’ perspectives:

(i) Does the Framework’s ‘Consumer Bill of Rights’ meet international standards?
(ii) Is the proposed method of achieving it realistic or futile?
(iii) Is the US demand for ‘interoperability and mutual recognition’ reasonable?
(iv) Is the USA ever likely to protect privacy to international standards?

The article concluses that the rest of the world has to accept that there are some aspects of US domestic law on data privacy which are unlikely to change, but that does not constitute a reason for reducing international privacy standards in fundamental ways in order to accommodate the weaknesses of American privacy protection. The US approach does not deserves an undue amount of respect simply because of its economic and political power, and the Framework proposals do not at this stage change that. A better approach is to support those seeking reform in the USA by deferring ‘interoperability’ until US standards are in practice somewhere closer to those being adopted by most other countries. At some point it could become a rational decision that to have the USA implement and enforce significantly better CPBR would be a deal worth making, for the benefits of ‘interoperability’ on the basis of a minimum global standard. But at the moment that is not the right, best or only choice.