3L Lisa Zivkovic has won the 2018 Trandafir Award for a paper that addresses conflicts between the EU’s new data protection law, the General Data Protection Regulation, and a decades-old U.S. privacy act, the Electronic Communications Privacy Act. The paper suggests reforms for the ECPA in order to achieve coherency among European and American data privacy regimes.
Zivkovic’s paper, “The Alignment Between the Electronic Communications Privacy Act and the European Union’s General Data Protection Regulation: Reform Needs to Protect the Data Subject,” stems from her doctoral work in history/French studies at New York University, where she is working toward her Ph.D. while simultaneously pursuing a J.D. from Fordham Law. Her paper was adapted from a chapter of her dissertation, which examines topics such as targeted advertising and the Minitel, a French precursor to the World Wide Web.
Zivkovic identifies the gaps between the ECPA, the source of United States data communications privacy protections, and the GDPR, the EU regulation for increased privacy protection, which will be implemented on May 25. The relationship between the ECPA and GDPR is important because, as Zivkovic explains, multinational companies who hold personal data often violate one country’s privacy protection laws in order to accord with those of another country. According to Zivkovic, many people wonder if the GDPR will influence a worldwide increase in privacy protection, and if nations will take efforts to comply with the regimes of other countries.
Zivkovic argues that the GDPR will encourage severability of business models for multinational companies
“I think the United States is a roadblock,” said Zivkovic, who asserts the likelihood that U.S. privacy standards, if anything, would isolate U.S. citizens more from their European counterparts.
Much of the problem, according to Zivkovic, has to do with the differences in how the U.S. and EU regimes talk about data regulation. Whereas the U.S. model protects the data itself, the European model protects the data subject. Zivkovic describes how this disparity, if unaddressed, will place European and U.S. privacy regimes at odds.
Zivkovic recommends that U.S. legislatures reform the ECPA to accord more with the GDPR. Shifting the focus to the data subject instead of the data itself would mitigate international tensions. Zivkovic also recommends that U.S. legislatures adopt several GDPR protections in order to prevent data localization and to ensure a borderless internet.
“I like the idea of the European model, although it’s ambitious,” said Zivkovic. “If the U.S. takes some provisions of the GDPR, which is admittedly a long shot, it would be useful.”
Next year, Zivkovic plans to continue addressing privacy protection matters, including their international implications and intersections. She will practice intellectual property and privacy law, as well as work on legal issues related to technology, at Mayer Brown LLP.
“I have great goals to increase privacy protection,” said Zivkovic. “I’m excited to be in this role.”
The Trandafir Writing Competition is an annual world affairs writing competition for law and graduate students. The competition is conducted by the University of Iowa College of Law International and Comparative Law Program and by Transnational Law & Contemporary Problems, a journal of the University of Iowa College of Law. For her win, Zivkovic will receive a cash prize, and her article will be published in the journal.