My final #SchremsII 🧵 for the day begins with the mystery: Why did GDPR find little traction in the US, when it largely swept much of the rest of the world, as @paulmschwartz has demonstrated? 1/
In our paper papers.ssrn.com/sol3/papers.cf…, @BillMcGev, @MargotKaminski and I offer two explanations: (1) 1st Amendment; and (2) Safe Harbor/Privacy Shield. 2/
As cases such as Sorrell demonstrate, 1st Amendment will limit U.S. privacy law (though there is room for such law nonetheless as folks such as @MargotKaminski argue). 3/
But equally, if not more crucial: Safe Harbor/Privacy Shield arrangements protected US from European pressure to change our laws to their model. We simply didn't have to adopt their laws to still participate as easily as possible in digital trade with Europe. 4/
Other states without the political negotiating power of US largely lacked ability to strike our special deal--EU would demand "essential equivalence" in their law through dramatic rewriting of their laws. 5/
But these rewrites are largely for naught: adequacy findings were not forthcoming. Japan's adequacy finding was the product of a negotiation (and some changes in Japanese law). (Korea's should be forthcoming as well.) 6/
If the US was a usual state, the Commission would sit back and wait for it to bring its laws into "essential equivalence." Instead, the Commission will negotiate with the Department of Commerce over the next 12 months to hammer out some other arrangement. 7/
That arrangement will likely require some legislative changes in US (related to surveillance)--not the creation of an omnibus privacy law (which might happen but motivated by CCPA). 8/
American exceptionalism will be preserved--& the GDPR will still not be the model for US law. 9/9
• • •
Missing some Tweet in this thread? You can try to
force a refresh
