Bridging the Pond and Squaring the Circle: A Transatlantic Public-Private Approach to Data Protection

After deteriorating transatlantic relations, that extended to the digital field, in the dire four years of Donald Trump’s presidency, the arrival of a Democratic administration in Washington in January 2020 ushered in new hopes. The Trade and Technology Council (TTC), a forum for frank US-EU dialogue, was one of the manifestations of this optimistic spirit. Its underlying idea looks to advance the principle that the US and EU approaches to trade and technology are complementary with both physical and digital markets interconnected.

While the TTC got underway, the tectonic shift of February 24, 2022 happened through Russia’s full-scale invasion of Ukraine, crystallizing a new Western unity. The necessity to cooperate, not only on cybersecurity but in fact all matters digital, including data protection, is all the more obvious now that Russia is essentially waging a hybrid war against the West and China posing an ever more existential systemic rivalry.

This geopolitical and geo-technological conflict not only demands a new effort to strengthen common ground between Europe and the US to defeat rivals. It also calls for a new effort to forge a strategic public-private partnership. The case of Russian cyberattacks against Ukraine and their swift announcement and analysis by Microsoft earlier this year has confirmed how crucial Big Tech companies can be in the IT dimension of the global conflict between democracy and authoritarianism. Consequently, such a partnership must be based, first and foremost, on the notion that private platforms have become so important that cooperation, not just regulation, is the appropriate path to tackling the authoritarian onslaught. Simply fighting Big Tech won’t do the job and represents an antiquated view. By actively using the internet and social media, people across the planet are using services for free that cost a lot of effort to provide, and yet none of the people who use them on a daily, if not hourly basis, would dream of paying for. Targeted ads (for which some analysis of user data is necessary) are essential ways for platforms to make money and offset the costs of providing these services.

That is one dimension of the problem. The other one is the fact that mindsets and legal systems in the EU and the US are still distant, with the US generally emphasising free speech, while in Europe, data privacy and protection against radicalisation are paramount. But there is some degree of convergence, with the Biden administration and the current Congressional majority tending to take ‘European’ points more seriously. Given this momentum the TTC is the ideal forum for fundamental, as well as frank, debates about this topic which can eventually transform into more concrete negotiations. Another topic where not only legislators and companies, but also the EU and the US, must cooperate more, in a constructive exchange of best practices, is the effort to increase digital literacy in education systems.

The third strategic factor that comes into play is how best to spur the technological innovation that benefits consumers and gives the West a chance to preserve a technological edge in the systemic rivalry. Innovation, however, cannot be ordained by legislation and regulation, as smart as they may be, but only by creating the right conditions for corporate platforms to do the right thing and therefore thrive. Which, according to all human experience, presupposes a light touch that doesn’t create the red tape that strangles creativity and initiative. Moreover, data protection and transparency rules must not become unintended support for authoritarian regimes, like lawfare, or for unfair competition

The future of data protection is in more transatlantic cooperation, not confrontation, in a new public-private partnership, not a simplistic all-out attack on Big Tech, and in stimulating, not stifling innovation. If Europe and America don’t set the global standards in this new era, someone else will. And that will be a defeat for democracy everywhere.