
Contents
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Privacy Legislation in the United States Privacy Legislation in the United States
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Statutory Law Statutory Law
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ECPA and the Stored Communications Act ECPA and the Stored Communications Act
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The USA PATRIOT Act and the FISAA The USA PATRIOT Act and the FISAA
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The Fourth Amendment and the Cloud The Fourth Amendment and the Cloud
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Contract Law, Tort Law, and State Law Contract Law, Tort Law, and State Law
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The FTC as Data Privacy and Security Enforcer The FTC as Data Privacy and Security Enforcer
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Concluding Remarks Concluding Remarks
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The EU Legal Framework for Data Protection The EU Legal Framework for Data Protection
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The EU DPD The EU DPD
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Roles and Responsibilities in the Cloud Environment Roles and Responsibilities in the Cloud Environment
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The Client-Provider Relationship: Main Requirements The Client-Provider Relationship: Main Requirements
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Key Content of the Client-Provider Contract Key Content of the Client-Provider Contract
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Key Conditions of Service Key Conditions of Service
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Other Applicable Legislation Other Applicable Legislation
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The e-Privacy Directive The e-Privacy Directive
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The Data Retention Directive The Data Retention Directive
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The Proposed New EU Data Protection Regulation The Proposed New EU Data Protection Regulation
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EU-Level Work on Contract Terms EU-Level Work on Contract Terms
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Cross-Border Data Flows: What Is the Future of the EU Safe Harbor? Cross-Border Data Flows: What Is the Future of the EU Safe Harbor?
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Conclusion Conclusion
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Notes Notes
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References References
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5 Cloud Privacy Law in the United States and the European Union
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Published:September 2015
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Abstract
This paper reviews the legal framework for data protection in the US and the EU and the attempts made in both jurisdictions to adapt the framework to the challenges posed by cloud computing and the evolving IT ecosystem. The two legal systems have developed widely diverging approaches to the protection of privacy. On the one hand, the US relies on a patchwork of laws (including the Electronic Communications Privacy Act, the PATRIOT Act and the FISAA and many sectoral laws) and the enforcement activity of the Federal Trade Commission under Section 5 of the FTC Act. In the EU, privacy is considered as a fundamental right, and is protected through comprehensive, cross-sectoral legislation (the Data Protection Directive, currently being updated and transformed into a Regulation). The emergence of cloud computing poses challenges for both legal systems: what seems likely is that the US will keep under-protecting privacy in the name of efficient commercial transactions (with great responsibility placed on the FTC to monitor abuses of bargaining power and other deceptive/abusive practices); whereas in the EU cloud services might end up trapped into an over-formalistic legal framework, which leaves little room for trade-offs between privacy and welfare-enhancing customized service for data subjects. The paper discusses also the future of transatlantic data transfer, with the EU-US Safe Harbour and the Binding Corporate Rules currently being re-discussed in the aftermath of the “Datagate” scandal.
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