I think I can safely assume that everyone has heard about the U.S. government program which uses American internet companies to access the online activities of non-Americans, so I won't get into the details. Not surprisingly, there have been some concerns expressed by law-makers outside of the United States. (As well as some concerns from Americans). Here is one example:
Peter Schaar, Germany's federal data protection commissioner, told the Guardian that it was unacceptable for the US authorities to have access to EU citizens' data and that the level of protection was lower than that guaranteed to US citizens.
Here is another:
European Union lawmakers took aim at the United States Tuesday for its recently revealed data snooping program, attacking Washington for treating its European allies as “foreigners” who are legitimate targets for surveillance.
The four major groups at the legislature all condemned the U.S. programs and the EU’s top justice official said she will confront U.S. Attorney General Eric Holder on whether U.S. services are vetting data of EU citizens and companies, and will insist on the fundamental respect of rights.
EU Justice Commissioner Viviane Reding she will be seeking clear commitments during Friday’s trans-Atlantic ministerial that EU citizens will be granted the same rights as U.S. residents when it comes to data protection.
Imagine if the EU or a particular European government was so bothered by the U.S. government actions, and did not get sufficient assurance of a change in policy, that it decided the only option was to promote a competing internet company that respected privacy. One possibility might be Opera, which is based in Norway and has offices around the world. Let's say the EU and European governments pushed the use of Opera rather than its American rivals, using various discriminatory preferences and requirements.
Let's also say that in its GATS services schedule, the EU and its member states had made national treatment commitments on the services that these companies provide, and thus let's assume that the measures violate GATS Article XVII.
Here's my question. Would European efforts to promote a domestic competitor be justified by GATS Article XIV(c)(ii), which refers to measures that are:
necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to: ... (ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
The basic argument would be that the EU and its governments have to secure compliance with data privacy laws, and the only way to do that is if they can be sure that internet companies used by EU citizens are protecting individual data. As a result of the U.S. spying programs, they can't be sure that American companies are protecting this data, so they need to encourage their citizens to use non-American internet companies.
Any thoughts from readers?
