Francesca Bignami

Bio: Francesca Bignami is an academic researcher from George Washington University. The author has contributed to research in topics: Comparative law & European union. The author has an hindex of 15, co-authored 45 publications receiving 469 citations. Previous affiliations of Francesca Bignami include University of Chicago.

Privacy and Law Enforcement in the European Union: The Data Retention Directive

Abstract: This paper examines a recent twist in EU data protection law In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice This paper analyzes the first EU law to address data privacy in crime-fighting - the Data Retention Directive Based on a detailed examination of the Directive's legislative history, the paper finds that privacy - as guaranteed under Article 8 of the European Convention on Human Rights and the Council of Europe's Convention on Data Protection - was adequately protected in the Directive This positive experience can serve as guidance for guaranteeing other fundamental rights in the rapidly expanding area of EU cooperation on criminal matters

European Versus American Liberty: A Comparative Privacy Analysis of Anti-Terrorism Data-Mining

Abstract: The difference between European and American regulation of marketplace privacy is well-established: information privacy is protected more under European law than American law. Recently, with the revelation of a number of U.S. government, anti-terrorism programs, it has become clear that the transatlantic difference is not limited to the market. Also in the face of government action, Europeans protect information privacy more than Americans. This paper brings to light the legal differences between the two systems by considering the case - real in the United States, hypothetical in Europe - of a spy agency's database of call records, created for the purpose of identifying potential terrorists. The paper explains that, under American law, such an anti-terrorism database might very well be legal, and that, under European law, such an anti-terrorism database would clearly be illegal. It then reviews the barriers to transatlantic cooperation on fighting terrorism that have been created by the legal difference. The paper also considers the reasons for this transatlantic difference - surprising in view of the common wisdom that Americans are more suspicious of government interferences with individual liberty than Europeans. The paper concludes with a few recommendations for the reform of American information privacy law, principal among them being the establishment of an independent privacy agency.

Privacy and Law Enforcement in the European Union: the Data Retention Directive

Abstract: This Article examines a recent twist in European Union ("EU") data protection law. In the 1990s, the European Union was a market-creating organization and the law of data protection was designed to prevent rights abuses by market actors. Since the terrorist attacks in New York, Madrid, and London, however, cooperation in law enforcement has accelerated. Now the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This Article analyzes the first EU law to address data privacy in law enforcement-the Data Retention Directive (or "Directive"). Based on a detailed examination of the Directive's legislative history, this Article finds that privacy-as guaranteed under Article 8 of the European Convention on Human Rights and the Council of Europe's Convention on Data Protection-is adequately protected in the Directive. This positive experience can serve as guidance for guaranteeing other fundamental rights in the rapidly expanding area of EU cooperation on criminal matters. I. INTRODUCTION Data privacy is one of the oldest human rights policies in the European Union. The European Union was born as an international organization dedicated to the creation of a common market. Rights emerged only gradually, as it became apparent that market liberalization could come into conflict with rights and that the safeguards available under national constitutional law were inadequate. At first, the European Court of Justice took the lead in establishing rights. By the mid-1990s, however, the European legislature had also become active. One of its first forays into the human rights realm was the Data Protection Directive. The Data Protection Directive, proposed in 1990 and passed in 1995, set up a complex regulatory scheme at the national level to protect individual rights.1 At that time, as was to be expected in a European Union still focused on the common market, data protection was aimed at preventing rights abuses by market actors and by government agencies operating as service providers. Recently, however, EU data protection has taken a new turn. Now, the challenge is to safeguard privacy when governments exercise their core sovereign powers of national security and law enforcement. This Article examines the European Union's new turn toward protecting privacy in law enforcement activities. The first part explores the developments that have given rise to these policies, namely the growing importance of digital technologies in police investigations and the intensification of police cooperation in the European Union following the terrorist attacks in New York, Madrid, and London. The second part analyzes the Data Retention Directive, the legislation with the most significant data protection ramifications to be enacted at the time of this writing.2 The Article concludes with some thoughts on how the largely positive experience of the Data Retention Directive can inform the protection of other classic liberal rights in the rapidly growing domain of European cooperation on fighting crime. II. LAW ENFORCEMENT IN THE DIGITAL EUROPEAN AGE To understand the challenges of data protection today, a bit of history is necessary. The first European data protection laws date to the early 1970s. Their focus was large-scale data collection by the government and by the few private actors with the resources and technology to engage in such data processing-mostly banks and telecommunications providers. On the public side, these early laws largely affected those parts of government administration that routinely collected large amounts of information from citizens for purposes of providing services such as health care, education, and welfare. For the most part, intelligence and law enforcement officials were untouched by these early data protection regulations. Under their respective national laws, intelligence and law enforcement officers were generally prohibited from accessing without cause the records of other government agencies. …

Introduction. A New Field: Comparative Law and Regulation

Abstract: The contemporary regulatory process is global. Markets and the problems they generate — consumer privacy, chemicals safety, and many others — cross borders and multiple national and international jurisdictions are called into action, sometimes in concert but just as often in competition. The new field of comparative law and regulation is devoted to understanding this global regulatory process. This introductory essay lays the groundwork for the volume and future research in the field by defining the object of study and by identifying three important avenues of theoretical inquiry. Comparative law and regulation covers the law of the regulatory function — legislative and administrative rulemaking, oversight, enforcement, and judicial review — in both domestic and international jurisdictions, and involving both public and private actors. Theoretically, the field tackles three critical features of the global regulatory process — jurisdictional variation, convergence (and divergence) over time, and legal prescription based on comparison. Jurisdictional variation is best captured by classifications based on paradigms of public law and models of legitimate private involvement in public regulation. The question of whether and how convergence occurs should be studied using causal theories of legal transplants and diffusion. And legal prescription based on comparison, a favorite rhetorical device in the global regulatory process, should be evaluated based on a normatively explicit and empirically sensitive functional method of comparative law research. These conceptual and theoretical tools apply equally to domestic and international jurisdictions.

Three Generations of Participation Rights Before the European Commission

Abstract: This article offers a conceptual framework for analyzing the development of participation rights before the executive branch of the European Community - the European Commission. Process rights before the Commission can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to be heard when the Commission inflicts sanctions or other forms of hardship in individual proceedings, emerged in the 1970s in competition law. This phase was driven by the Court f Justice, influenced by the English administrative law doctrine of natural justice. The second stage occurred in the 1990s, with the right to transparency in all Community activities, including those of the Commission. The drive for transparency was led by member countries with long-standing traditions of open government - the Netherlands, Denmark, Sweden, and Finland - and by the European Parliament. The third and most recent phase is the debate on whether and under what conditions individuals, firms, and their associations, billed as “civil society,” should take part in Community lawmaking and rulemaking. The Commission and the Convention on the Future of Europe, which produced the Constitutional Treaty, have been the keenest proponents of giving citizens and their associations a right to participate in rulemaking and legislative proceedings. In conclusion, the article argues that, in the absence of a European consensus on interest representation, it would be premature to create a court-enforced right to civil society participation.

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

Learning from Difference: The New Architecture of Experimentalist Governance in the EU

Abstract: This article argues that current widespread characterisations of EU governance as multi-level and networked overlook the emergent architecture of the EU's public rule making. In this architecture, framework goals (such as full employment, social inclusion, 'good water status', a unified energy grid) and measures for gauging their achievement are established by joint action of the Member States and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their performance and participate in a peer review in which their results are compared with those pursuing other means to the same general ends. Finally, the framework goals, performance measures, and decision-making procedures themselves are periodically revised by the actors, including new participants whose views come to be seen as indispensable to full and fair deliberation. Although this architecture cannot be read off from either Treaty provisions or textbook accounts of the formal competences of EU institutions, the article traces its emergence and diffusion across a wide range of policy domains, including telecommunications, energy, drug authorisation, occupational health and safety, employment promotion, social inclusion, pensions, health care, environmental protection, food safety, maritime safety, financial services, competition policy, state aid, anti-discrimination policy and fundamental rights.

The Health Insurance Portability and Accountability Act.

Abstract: The Health Insurance Portability and Accountability Act, also known as HIPAA, was first delivered to congress in 1996 and consisted of just two Titles. It was designed to protect health insurance coverage for workers and their families while between jobs. It establishes standards for electronic health care transactions and addresses the issues of privacy and security when dealing with Protected Health Information (PHI). HIPAA is applicable only in the United States of America.

The Civil Law Tradition. An Introduction to the Legal Systems of Western Europe and Latin America.

Abstract: Designed for the general reader and students of law, this is a concise history and analysis of the civil law tradition, which is dominant in most of Europe, all of Latin America, and many parts of Asia, Africa, and the Middle East. This new edition deals with recent significant events& such as the fall of the Soviet empire and the resulting precipitous decline of the socialist legal tradition& and their significance for the civil law tradition. The book also incorporates the findings of recent important literature on the legal cultures of civil law countries.