The promise and potential of transgovernmental cooperation on the international data privacy agenda: Communicative action, deliberative capacity and their limits

One of the great oxymorons and paradoxes of information technology regulation is that the governance of data privacy around the world to a large extent occurs through transgovernmental cooperation by data privacy commissioners; however, it has hardly received any attention among legal or political science scholars. Despite an increasingly prominent role that data privacy is gaining on an inter-governmental level and the United Nations agenda, an international community still struggles to find ways to cooperate over data privacy regulation. This paper aims to contribute to the international data privacy discourse by analysing data privacy authorities' (‘DPAs’) prospects to influence the international data privacy agenda and cooperation. The article aims to build upon and go beyond the existing descriptive narratives of the DPAs' functions and networks by applying the theoretical framework of the transgovernmental networks and Habermas theory of communicative action to data privacy to examine the potential and limits of the transgovernmental cooperation among the DPAs beyond European level which has not been analysed yet in legal or political science scholarship. The paper argues that while the transgovernmental cooperation by data privacy authorities represents a significant governance alternative to the more conventional inter-governmental cooperation, it is questionable whether that is sufficient to de facto alter the cooperative stalemate between the EU and USA and change the regulatory landscape in data privacy governance on an international level. While the hopes for data privacy commissioners could be high, the experience in other issue-areas, even the ones that are considered very ‘successful’ examples of transgovernmental cooperation, such as the Basel Committee, International Organization of Securities Commissions, and International Competition Network, requires some caution. This is so given that many of the factors impeding cooperation in other areas, including incompatible regulatory philosophies, politicisation of issues, the limited ability of regulatory cooperation to bind other governmental actors, and the presence of distributive conflicts, appear to be present in the area of data privacy as well. Thus, the paper concludes that aspirations that the data privacy authorities may, in the words of Anne-Marie Slaughter, create ‘a genuinely new set of possibilities’ for a future governance of data privacy where deliberation takes over and eliminates the power disparities and national interests are likely to remain elusive at least in the nearest future.