'Faraway, So Close!' – A Constitutional Perspective on Transatlantic Data Flow Regulation

“Obama’s Court: Recent Changes in U.S. Constitutional Law in Transatlantic Perspective” edited by Anna-Bettina Kaiser, Niels Petersen and Johannes Saurer, 2017 Forthcoming

15 Pages Posted: 5 Dec 2016

See all articles by Thomas Wischmeyer

Thomas Wischmeyer

Faculty of Law, Bielefeld University

Date Written: October 30, 2016

Abstract

In the 1990s and early 2000s many scholars predicted that the common challenges faced by the U.S. and the EU would over time lead to some form of regulatory convergence or even to the emergence of shared constitutional standards. Under the Obama Presidency, however, the U.S. and Europe have been heading in diametrically opposite directions, especially as far as the protection of informational privacy through constitutional law is concerned. The paper starts by analyzing how the U.S. Supreme Court in the Obama/Roberts era has significantly lowered the level of constitutional protection for many salient informational privacy claims both for U.S. persons and for foreigners, especially by exempting the U.S.’s domestic and international surveillance architecture from constitutional review. In contrast, the CJEU has used the constitutionalization of privacy as a means to re-invent itself as a constitutional and a fundamental rights court. This paper takes up the questions that arise from the divergence, namely whether one of the two courts’ approaches is better able to guide us towards a sustainable legal framework for transatlantic data transfer in the 21st century.

Keywords: data protection; right to informational privacy; transborder data flow regulation; Fourth Amendment; surveillance; Safe Harbor Framework; Schrems; Google Spain

Suggested Citation

Wischmeyer, Thomas, 'Faraway, So Close!' – A Constitutional Perspective on Transatlantic Data Flow Regulation (October 30, 2016). “Obama’s Court: Recent Changes in U.S. Constitutional Law in Transatlantic Perspective” edited by Anna-Bettina Kaiser, Niels Petersen and Johannes Saurer, 2017 Forthcoming, Available at SSRN: https://ssrn.com/abstract=2877548

Thomas Wischmeyer (Contact Author)

Faculty of Law, Bielefeld University ( email )

Universitätsstraße 25
Bielefeld, NRW 33613
Germany

HOME PAGE: http://www.jura.uni-bielefeld.de/lehrstuehle/wischmeyer/wischmeyer

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