Monday, March 21, 2005

Data Protection articles

"Data Retention and the War Against Terrorism - A Considered and Proportionate Response?" by Diane Rowland [2004] Journal of Information, Law and Technology (3)
"The Application of Data Protection Law to the Employment Sector" by Gemma Neylon [2005] Cork Online Law Review 4
"We Know What You Did Last Summer! What Aims Should Guide Ireland's Laws on Data Retention?" by Alan Woods [2005] Cork Online Law Review 3
A Comparative Analysis of Zimbabwean and South African Data Protection Systems" by Caroline Ncube [2004] Journal of Information, Law and Technology (2)
"A Model Regime of Privacy Protection" by Daniel J. Solove and Chris Jay Hoofnagle GWU Law School Public Law Research Paper No. 132 (March 2005)
"Abuse of Database Right - Sole-source information banks under the EU Database Directive" by Bernt Hugenholtz Conference paper January 2004

Friday, March 18, 2005

Week 10: Concluding session: International Trade and Data Protection.

Is the EU taking a large risk in not terminating the Safe Harbour?
GATS Article XIV(c)(ii) specifically authorizes the European privacy regulations to restrict cross-border services provided that the measures are not used to discriminate between trading partner countries and provided that the measures are not used as a disguised restriction on trade in services.
Internal EU compliance problems are not relevant because the GATS obligation, known as MFN, relates to favoring one non-EU country over another non-EU country. Since the 2004 EC study and the 2001 study each showed important compliance deficiencies, third countries such as Australia have a very strong argument that the EU is impermissibly favoring the US in that the EU appears to be holding third countries to a higher standard of "adequacy." WTO Appellate Body Decision in the EC-Bananas III case specifically said that de facto discrimination was as valid a basis for an MFN claim as de jure discrimination.
Even with respect to disguised restrictions, Reidenberg thinks the US would have a very difficult case since European data protection agencies do enforce national data privacy laws, even if the level of enforcement is weak. EU would have serious trade issues if EU data protection agencies were to take enforcement actions only against US companies transferring data from Europe. This form of discrimination is an entirely different type of trade problem -- a violation of the GATS national treatment obligation-- that is independent of the Safe Harbour. The issue is differential treatment of companies within Europe based on their nationality rather than differential treatment of destinations.

Thursday, March 10, 2005

Week 8 - safe harbors

US safe harbor website here, and EU Working Group consultations here.

Friday, March 04, 2005

Essay titles

1. 'Anonymity online is not a right, but a hindrance to law enforcement and an invitation to fraud.' Discuss with reference to Lessig's views.
2. Is the Safe Harbour provision in Directive EC/46/95 contrary to free trade rules?
3. Do you consider Information Commissions effective in upholding individual rights to personal data? Explain using evidence from at least two jurisdictions in the EU.
4. Do identity cards protect individual rights? Illustrate your argument with reference to the proposed Identity Cards Bill 2005.

Weeks 8-9 Reading

Week 8: Safe Harbours and US law
Lloyd Chapter 10
Reindenberg, Joel. R. Resolving Conflicting International Privacy Rules in Cyberspace, 52 Stanford Law Review, 1315 (2000)
Jan Dhont, María Verónica Pérez Asinari, Yves Poullet, Joel R. Reidenberg & Lee Bygrave, Safe Harbor Decision Implementation Study (Apr. 19, 2004)
Week 9: CCTV Case Study and Technologies of Control
CCTV regulation by Crime and Disorder Act 1998 here. Also a very good article on ECHR decision in Peck (2003). RIP Act's formation and encryption debate by Hosein is here
Advanced reading:
Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999), chapter 11; "Reading the Constitution in Cyberspace", Emory Law Journal, volume 45, number 3, Summer (1996) pages 869-910
Jamal, Maier and Sunder, E-Commerce and Privacy in the UK and US.

Wednesday, March 02, 2005

Week 7 - Advanced Readings Cybersurveillance and civil rights

Hosein, Ian, Creating Conventions - Technology Policy and International Cooperation in Criminal Matters. Available on-line in draft form
Hosein, Ian, Politics of International Co-Operation, Memo for the Social Science Research Council,
available on the SSRC website.
Hosein, Ian, The Sources of Laws: Policy Dynamics in a Digital and Terrorized World, The Information Society, Volume 20 number 3, 2004.
Available on-line.
Global Internet Liberty Campaign Member Letter on Council of Europe Convention on Cyber-Crime Version 24.2, December 2000,
available on the GILC website.