CIPIL/LCIL Seminar: 'Cross-Border Challenges to Data Privacy' - Stephen J. Schulhofer

Stephen J. Schulhofer, New York University, will speak on the topic of "Cross-Border Challenges to Data Privacy"

The digital revolution has upended many customary privacy safeguards.  At a practical level, government’s access to personal data and its ability to extract revealing details from them are exponentially simplified.  Legal safeguards are destabilized as well, because data moves over capricious routes to its destination, and its place of private-sector storage may not even be known. Information can be accessed from locations that bear little relationship to the nationality of persons affected or the physical site of pertinent data. And since the US, UK, EU and most other nations do not extend privacy rights to foreign nationals abroad, individuals may lose the privacy protections afforded by both the searching country and the nation where the search occurs.

That loophole is compounded by mutual assistance and incidental collection. Each nation can acquire information on its citizens from foreign intelligence services and can collect such information itself by targeting communications of foreign nationals who are in contact with its own citizens.  The sheltered spaces for private life thus face unprecedented threats.

Law enforcement and the intelligence community face new challenges as well. Global communication multiplies the capacity of extremist groups to recruit and support sympathizers; new vulnerabilities result from the cyber-dependent character of contemporary infrastructure. Uncertainty about governing law can chill private-sector co-operation and cast doubt on the ability to use acquired information in court.

Prominent human-rights advocates urge that the answer to these problems lies in a “Snowden Treaty” or similar multilateral agreement requiring states to adhere to uniform, privacy-sensitive standards, with no discrimination between their own nationals and those of other countries.  Though it is surely right to consider the problem from the perspective of universal human rights, an international agreement could sideline the courts, disempower privacy advocates, and create a dynamic controlled almost exclusively by the executive and its national security establishment. 

The paper, drawn from the recently published book Surveillance, Privacy and Transatlantic Relations (D. Cole , F. Fabbrini & S. Schulhofer, eds. (Hart 2017)), examines the problem of cross-border privacy protection and the dangers of turning to a multilateral process to address its challenges.  Finally, the paper considers alternative paths for protecting data privacy effectively in a world that is increasingly interconnected legally as well as technologically. 

Stephen J. Schulhofer, the Robert B. McKay Professor of Law at New York University, is one of America’s leading scholars of criminal justice.  He has written more than 50 scholarly articles and seven books, including the leading casebook in the field, and widely cited work on many criminal justice and national security topics. His most recent book, Surveillance, Privacy and Transatlantic Relations (Hart, 2017) (with David Cole & Federico Fabbrini) examines the multiple challenges to democracy and privacy as well as to national security and global economic development posed by technological advance and pressures for effective responses to transnational terrorism. His book More Essential Than Ever: The Fourth Amendment in the Twenty-First Century (Oxford University Press, 2012) provides a comprehensive analysis of Fourth Amendment history and current legal doctrine, along with discussion of contemporary problems concerning searches, electronic surveillance, and the intersection between national security needs and the right to privacy. His journal articles address counterterrorism, police interrogation, drug enforcement, indigent defense, plea bargaining, and many other criminal justice matters. Schulhofer’s current projects include analyses of national security secrecy, the right to privacy in electronic communications, and an empirical study of the impact of counterterrorism policing on immigrant communities in New York and London. Previously, Schulhofer taught at the University of Chicago and the University of Pennsylvania. He completed his BA at Princeton University and his JD at Harvard Law School, both summa cum laude. He then clerked for two years for US Supreme Court Justice Hugo Black and practiced law for three years before beginning his academic career.