Simon Davies: Privacy's New Image

America's new rules of privacy are coming from the Old Country. Here's how Europeans like Simon Davies are getting America to rethink privacy.

The FTC, by the way, is actually one of the central reasons behind Safe Harbor's poor showing. It has enforcement authority over the program, and the majority of U.S. companies don't want to come under its jurisdiction and open themselves up to litigation. Instead, most companies seeking to transact business in Europe have chosen to negotiate individual contracts with the EU member states, stating that they will abide by the basic precepts of EU privacy practices.

But terrorism and technology have changed the standards and the stakes of compliance. Since Sept. 11, the U.S. government has made new information demands on its European allies in the name of security, which forces them in many cases to break their own privacy policies. For example, U.S. authorities are requiring that all foreign airlines that land in the United States present complete passenger lists, a move that directly violates European privacy laws. But airlines such as Lufthansa and Air France that want to be able to land in the United States have been quietly surrendering that information anyway.

Davies notes that security measures such as those contained in the Enhanced Border Security and Visa Reform Act of 2002 (H.R. 3525) are causing a great deal of resentment in Europe. "There is a sense of betrayal in Europe that we will now have to be fingerprinted as we enter the United States. It's a betrayal of comradeship and of trust," he says. "We've been partners throughout the century, and to find ourselves now cast aside and treated as alienswell, it's done incalculable damage." Davies also points to further irritants: the war of words that erupted between France and the United States, and the fallout from Europe's disfavor of the invasion of Iraq.

And Davies is not alone in feeling that way. Alan Westin, president of the Washington, D.C.-based Center for Social and Legal Research, and cofounder and publisher of the Privacy and American Business Journal, notes that Stephano Rodota, president of the Italian Data Protection Authority, recently spoke out strongly against the European airlines for surrendering their passenger information to the United States.

The result could be serious for U.S. companies that want to do business in Europe. Davies predicts that European privacy authorities are going to get much tougher on Americans who flout their privacy regulations. "There is going to be far more attention to detail in contracts and on the information flow, and a more rigorous interpretation of data rules," he says. "It may be occurring for all the wrong or all the right reasons, but this is the state of the world today. And because of the bad blood in Europe, data protection is one of the areas where rules will be more rigorously applied."