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US Regulatory Values and Privacy Consequences

Implications for the European Citizen

DOI https://doi.org/10.21552/EDPL/2016/2/7

Chris Jay Hoofnagle


Europeans have long faced a regulatory challenge: how can the human rights and dignitary values that animate data protection law be protected in transborder data flows? With the proposal of the EU-US Privacy Shield, part of the challenge will be answered by the US Federal Trade Commission (FTC). The FTC is a small but powerful US agency established in 1914 to address problems of monopoly and trust. Shortly after its creation, the FTC turned its attention to consumer issues. Over the years, Congress has repeatedly empowered the FTC, and the agency has accomplished much on privacy matters. In a recent book, I recount the FTC’s privacy successes. But this article focuses on the limits of the FTC’s powers. The American business community has eschewed dignity as a privacy value in favour of economistic conceptions of privacy interests. This article explains how the FTC’s focus on economic liberty constrains how it can protect Europeans’ normative interests in privacy. First, this article recounts why the FTC has to find economic pretences to extend its reach to normative, dignity-based affronts to personality. The article then discusses the structural limits of the FTC and how these limits constrain privacy enforcement. The article concludes with a discussion of instruments that could bridge the gap between the FTC’s economistic conceptions of privacy and the values Europeans place on data protection.

Adjunct Full Professor of Information and Adjunct Full Professor of Law, University of California, Berkeley. For correspondence: <mailto:choofnagle@berkeley.edu>. The arguments in this article appear in fuller form in Chris Jay Hoofnagle, Federal Trade Commission Privacy Law and Policy (Cambridge University Press 2016)

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