[governance] On the EU Court's Striking Down Safe Harbor

[Seth Johnson]

I call the confusion on this a "statutory bias" -- a tendency to think
you fix everything by passing a law or treaty. People don't understand
how popular sovereignty sets a foundation that makes modes of recourse
actually work. The EU based its fundamental rights charter on the
founding acts of the people that claimed those rights within the
several nations that make up the EU. As a result, the courts
appropriately apply fundamental rights as rights that take priority
over acts of the government, and in this case that applied to a treaty
with the US. A human rights treaty could never produce this kind of
result, because it's a treaty among governments, not an act setting
the priority of fundamental rights as limits on government. A whole
lot of the frame of "Internet governance" has a problem understanding
this basic characteristic of what's different in the international
arena.

Safe Harbor's falling down this year was a serious advance in the
discourse just when we needed it -- before a blind handoff of Internet
stewardship proceeded without understanding the nature of the
transition (This point would apply regardless of whether the Internet
had been "hosted" by the US or any other free country).

LIBE Committee to Commission: Why Did Safe Harbor Last 15 Years?
> https://iapp.org/news/a/libe-committee-to-commission-why-did-safe-harbor-last-15-years

European Court Chief Defends Decision to Strike Down Data-Transfer Agreement:
> http://www.wsj.com/articles/european-court-chief-defends-decision-to-strike-down-data-transfer-agreement-1444768419

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