University of New South Wales Faculty of Law Research Series
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
This paper was published in Privacy Laws &
Business International Report, Issue 119: 6-9, October 2012. This paper may also
referenced as  UNSWLRS 56.
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
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
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
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
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.