Rival Freedoms in terms of security: The case of data protection and the criterion of connexity

The research conducted in the framework of the CHALLENGE programme, has investigated a variety of aspects of the problematique surrounding the relationship between liberty and security. The tensions involved in this relationship could also be argued to exist as far as the relationship among freedoms themselves is concerned: the notion of Rival Freedoms represents a significant aspect of the paradigm of European Governance as a liberal regime.

While it is true that it is in the relationship between individuals and the State (as Government), within the framework of liberal regimes, that the notion of rivalry acquires its essence and meaning, European Governance is argued to be equally appropriate, as a liberal regime, for the examination of rivalry. [1]

As it has been emphasized in the research conducted by the University of Athens, the European Union, and the paradigm it constitutes, is characterized by a specific articulation of the relationship between Governance and Government. On the one hand, EC Governance, as exemplified in the Community method of the first pillar, refers to a functional mode of exercising power on European populations, with a view to establishing the framework of the Single Market. On the other hand, State Government, involving organic patterns of power, located at the national level, and based on the concept of sovereignty, persists and interplays alongside Governance, as the continued use of the intergovernmental method suggests (for an overview, see Scandamis and Boskovits 2006).

Thus, it is particularly important to examine the articulation of the relationship of rivalry in the framework of European Governance, as an evolving institutional scheme drawing from both Governance and Government. Such an examination is also analytically useful for the examination of the terms of the relationship between liberty and security, which is the primary objective of CHALLENGE.

The present paper attempts to include, within the analytical framework of Rival Freedoms, the challenges posed by security practices –arguably also characterized as «illiberal practices»- to liberal regimes. The case study of Data Protection was selected as a characteristic field in which the argument of rivalry could be adequately made, since the protection of personal data of the individuals involves a tension both with other freedoms, notably market freedoms, as well as with security practices.

Thus, at a first stage, the Data Protection Regime will be examined and placed within the broader framework of freedoms/liberties in Europe, so that the argument of rivalry among freedoms can be made. At the second stage, the paper will deal specifically with the contribution to the examination of the relationship between liberty and security, which the right to data protection can make, while emphasis will be given, in this context, on the implications of this rivalry for the tensions between Governance and Government, as the primary feature of European Governance.

An important analytical thread proposed and examined in this paper consists of the notion of the criterion of connexity, as already illustrated in the title. Connexity functions as a sort of switch mechanism, it is suggested, which enables the approach of rivalry in terms of the analytical schemes of either Governance or Government. The function of this criterion and the specific terms of its articulation are aptly illustrated in the well-known recent judgement of the European Court of Justice on the transfer of PNR data to the US public authorities, as it will be further argued.

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Rival Freedoms in terms of security: The case of data protection and the criterion of connexity

Rival Freedoms in terms of Security