The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

59th Antitrust Law Spring Meeting: National Privacy Policies as Barriers to Entry in International Competition

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As the last day of the ABA Antitrust Law’s Spring Meeting wraps up, this morning’s panel, "National Privacy Policies as Barriers to Entry in International Competition" discussed differences in international law and approaches to privacy internationally.

Panelists include Ronald D. Lee, Arnold & Porter LLP, Kim Alexander-Cook, nNovation LLP, Sarretta McDonough, Gibson Dunn & Crutcher LLP, and Hugh Stevenson, Deputy Director for International Consumer Affairs, Federal Trade Commission.  Aryeh Friedman, Pfizer Inc., was the session chair.

  • The panelists engaged in an interesting discussion regarding how the right to privacy should be viewed so that we can reach understanding in the international community.  Mr. Alexander-Cook suggested that we might think of privacy rights the same way we think of human rights; Ms. McDonough suggested that here in the United States, people don’t think of privacy so much as a human right but as part of our "Manifest Destiny" history and culture.  Mr. Stevenson suggested that some of the differences amongst international regimes may have resulted because of a perception in that country that another country is trying to impose its privacy regime upon them.
  • Mr. Alexander-Cook presented a summary of Canadian privacy law.  He pointed out that the Canadian approach is intended to be flexible and adaptable.  He also discussed concerns that arise under Canadian law when transferring data to the US due to concerns over how the US government will use that information under the US Patriot Act.
  • Ms. McDonough discussed the effect of privacy policies and restrictions on mergers and whether those differing approaches affect consumer choice and/or competition.  She also pointed out in her lessons learned discussion that a company needs counsel experienced in that jurisdiction’s privacy laws to examine the potential privacy issues before documents are downloaded or pulled for initial review.
  • The panel concluded with a discussion of the challenges facing enforcers in dealing with cross border issues and obtaining and sharing information with counterparts in other jurisdictions.

Author: Heather Enlow-Novitsky

VP, Assistant General Counsel, Bank of America Merchant Services

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