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The Global Governance of Privacy Actors, Mechanisms, and Perspectives

The Global Governance of Privacy Actors, Mechanisms, and Perspectives. Ralf Bendrath University of Bremen European Digital Rights (EDRI) WSIS Privacy & Security Working Group. European Digital Rights. Global Governance of Privacy. What is “global governance”?

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The Global Governance of Privacy Actors, Mechanisms, and Perspectives

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  1. The Global Governance of PrivacyActors, Mechanisms, and Perspectives Ralf Bendrath University of Bremen European Digital Rights (EDRI) WSIS Privacy & Security Working Group

  2. European Digital Rights

  3. Global Governance of Privacy • What is “global governance”? • “governance without government” • regulation without enforcement? • legitimacy / democracy?

  4. Global actors: more than ever • international organizations • CoE, OECD, APEC, … • supranational organizations • EU • global corporations • users and developers of ICTs • CSR / Global Compact • transnational NGOs • EDRI, TACD, BBA,… • technical bodies • IETF, IEEE, ICANN, …

  5. What is ”enforcement”? Ideal types of political regulation: • Hierarchical (State) • Decentralized (Market) • Horizontal (Committee)  hybrid forms emerging

  6. Hierarchical Enforcement • state • central control (one sovereign, one DPA) • sanctions • oversight, registration, notification • blocking orders • fines, criminal charges • seizure of equipment • based on public law • judicial review, democratic decisions • national level • globalization as major challenge

  7. Decentralized Enforcement • market • no sovereign (invisible hand) • WTO?  exception for privacy • no coordinated sanctions • based on private law • different types of contracts • sanctions difficult • global law firms as arbitrators • still “in the shadow of the law” • global • monopolies and market failure as challenge • consumer influence?

  8. Horizontal Coordination • committee • ISO, ITU, OECD, Art. 29 WP, IETF, IEEE, … • no sovereign, but visible hands • enforcement through • public opinion • standards: technical, contracts, management, … • network effects • sanctions through market • global (regional  global) • public-private • diverse forms of public-private weight • judicial review? • often seen as non-political • “just technical”? • “just legal”? • Inclusiveness as challenge

  9. Hybrid Forms I public certification of private mechanisms • Audits, Binding Corporate Rules • Model contracts • Standards (Canada) • Web Seals? • Safe Harbor • under law even without DP laws • “unfair and deceptive trade practives”

  10. Hybrid Forms II Private enforcement of public laws • regulation through code • not as “user empowerment” • mainstreaming privacy into infrastructure design • global corporations • BCR / Codes of Conduct also apply where there is no law

  11. Hybrid Forms III “Competition” among states • benchmarking (OECD/PISA) • Open Method of Coordination (EU) • efficiency of DPAs

  12. Problems of Global Governance • Transparency? • Accountability? • Expert domain • global privacy jet-set • DPAs, CPOs, few NGOs • companies: “elephants and mice”

  13. Perspectives for Global Governance • more transparency • more inclusiveness • cf. UN Reform / Kofi Annan • “real” expert deliberations • “non-coercive power of the better argument” • Accountability? • Who is sovereign? • The people!

  14. We, the People? • responsive to citizens • cooperation with • user organizations • consumer organizations • public interest organizations • community / social software • Wikipedia for Privacy? • the public sphere • conflicts are needed and important

  15. A conflict perspective on privacy • privacy is no big issue of international conflict anymore • global attention cycles for privacy • 1960s-1970s: national laws • 1970s-1980s: OECD / CoE • 1990s: EU Directive • 2000: fundamental ceasefire with Safe Harbor • no harmonization, but interface solution

  16. A New Grand Debate? • Global • WSIS: Internet Governance & Privacy • APEC vs. EU? • Transatlantic • PNR / Safe Harbor? • Europe • Data Retention

  17. New “Rainbow Coalitions” • NGOs in international politics • EDRI, EPIC, PI, NCC, TACD, … • European Parliament (and others?) • DP authorities, of course • some companies • friendly journalists •  different roles, but same goal • information, cooperation and strategizing

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