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The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy law yet retain access to trade? The Article explains U.S. exceptionalism as resting on its enormous economic leverage, which enabled it to negotiate sui generis regimes to ensure access to foreign data.

Even those accepting this historical account as account might yet argue that privacy should not be subjected to trade law disciplines. “Privacy is not bananas,” as the great Spiros Simitis famously proclaimed. But food safety is also a human right, and trade law has shown that we can protect human health even when we consume food produced abroad. Similarly, we can protect privacy even while enabling trade in digital services. Trade disciplines need not undermine privacy, but rather help ensure that claims of privacy protection are not merely disguised protectionism.

Publication Citation

Indiana Law Journal, Vol. 99, Pp. 649-674.