Panelists: Focus US, EU Privacy Debate on China -- and Tech Giants

The U.S. and EU treat Big Tech and China differently in the debate on data flows, speakers said at a virtual Progressive Policy Institute event Wednesday. From a privacy and diplomacy standpoint, Europe has painted itself into a corner, said European Centre for International Political Economy Director Hosuk Lee-Makiyama: It addressed U.S. platforms while ignoring that many people use TikTok, Zoom and similar companies, and that some personal data is going to China. While the EU and U.S. squabble, they're losing ground for future economic competitiveness, said Kristian Stout, International Center for Law & Economics innovation policy director. When the scale of NSA's Prism data collection was revealed, Europe and the U.S. demanded negotiations to scale back the practice (see 1307080059), said Lee-Makiyama: But neither party sought relief when China enacted its privacy law, so does that mean they trust President Xi Jinping? It's also inexplicable that Max Schrems has brought around 100 lawsuits, mostly against Google and Facebook, but has never sued any Chinese entity subject to that country's national security law, Lee-Makiyama said. Since the European Court of Justice struck down transfer mechanism Privacy Shield in Schrems II (see 2009100001), there's concern not only about a replacement but also about whether an alternative mechanism, standard contractual clauses (SCCs), will also be invalidated, said PPI Chief Economist Michael Mandel. The parties are essentially friendly trade partners, but the sticky question is where the EU is willing to give ground and whether the U.S. is likely to change its national security apparatus, said Stout. He said he's optimistic the EU will give some ground based on its trade commitments, because under EU law, privacy can't entirely trump national security. And if Europe has to give something, so does the U.S., he said: Overbroad surveillance data collection processes could be changed to enable the EU to grant an adequacy ruling; the lack of redress by European citizens for data misuse could come through proportional analyses in lawsuits that show that China, EU countries and other governments also engage in U.S.-like surveillance. If SCCs are invalided and there's no agreement on a revised PS, Lee-Makiyama said, he's pessimistic the EU general data protection regulation could be reversed because of its normative effect globally on cross-border data flows. The debate isn't whether there should be a GDPR, but whether it's being intertwined with trade and national security policies in a way that could lead to no trade if the discussion follows its natural conclusion, said Stout. The U.S. won't necessarily come closer to the EU position on privacy, but everyone wants a "reasonable compromise," said Lee-Makiyama.