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

[Seth Johnson]

This article explains how the ruling shows the importance of
fundamental rights as rooted in founding acts of free countries -- as
opposed to international treaty rights, which are inherently weak, a
basis for "balancing standard" style reasoning (at best) rather than
"strict scrutiny," where fundamental rights have priority.

Fallout from EU-US Safe Harbor ruling will be dramatic and far-reaching:
> http://arstechnica.com/tech-policy/2015/10/fallout-from-eu-us-safe-harbour-ruling-will-be-dramatic-and-far-reaching/

On Wed, Oct 14, 2015 at 6:07 AM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> 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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