Belgian scholar finds fault on both sides of Atlantic, charts midway course for U.S.-EU data privacy

KU Leuven Profs. Jan Wouters, Evelyne Terryn, and Peggy Valcke; Sylvia Lissens; me; KU Leuven Prof. Marieke Wyckaert, dissertation committee chair; and via Zoom, Prof. Przemysław Pałka, Jagiellonian University, Poland (photo presumed © and used with permission) 

Congratulations to newly minted-Doctor Sylvia Lissens, who defended her dissertation in the Leuven Centre for Global Governance Studies at Katholieke Universiteit (KU) Leuven in Belgium on October 1.

Dr. Lissens's dissertation is The U.S. and EU Approach Towards Personal Data Protection: "A Collision of Tides or a Convergence of Waves?": A Legal Exploration of the Differences and Convergences Between the United States and the European Union. The first paragraph of the dissertation gives a sense of its ambitious scope:

This research addresses the question of what the core differences between the U.S. and EU legal approaches towards personal data (protection) are and if there are signs of convergences. The question is approached through functional comparative law research conducted on three levels to reflect the perspectives of the three main stakeholders: the private sector, civil society, and the public sector, consisting of government intelligence and law enforcement agencies. The United States and the European Union seem to understand and qualify personal data differently in words and deeds, but upon closer inspection they have more in common than may seem at first sight. Consequently, it was possible to develop a roadmap for how the U.S. and EU approaches can co-exist, based on the convergences between the U.S. and EU approaches towards data privacy on all three levels.

I have learned and benefited immensely from serving on Lissens's dissertation committee for about the last five years. I myself posited a convergence in the data privacy expectations of American and European people many years ago, before the EU General Data Protection Regulation (GDPR) superseded its predecesor EU Data Protection Directive. I dared not then conceive a practical framework for a U.S. "adequacy" determination under what became the GDPR, which is the aim of Dr. Lissens's work. 

Faculty of Law at KU Leuven, Belgium
RJ Peltz-Steele CC BY-NC-SA 4.0

The dissertation is especially bold by European standards for suggesting that the EU might have to trim the sails of the GDPR to meet the United States partway. Most works in this vein take the GDPR at face value as a favorable norm. Lissens rather criticizes the GDPR for exporting worldwide norms with almost imperial ferocity, thus failing to give legal regimes and cultural communities around the world an opportunity to develop data privacy standards that might be qualitatively different or appropriately more or less protective of personal liberty. This critique resonates with contemporary critical perspectives in comparative law, which might note that the individualist model of privacy right that the GDPR promotes discounts the prominence of collectivist values in non-European legal systems.

On October 1, Lissens defended her theses ably against healthy skepticism both from European interrogators and from me. I asked whether the hodgepodge of U.S. state data protection systems, as long as Congress remains paralyzed, can possibly be GDPR "adequate" when the state systems reach only consumer transactions. 

Consumer privacy is mostly what the GDPR is worried about, Lissens reasoned, and the EU might have to settle for the states' laboratory approach. Contrary to what I have witnessed as the prevailing ethos among young people in Europe, Lissens argued that European people might have to become comfortable with the notion known to U.S. law that being photographed in a public place is not a privacy violation.

On the national security front, Lissens, like EU courts and human rights advocates, finds plenty cause for concern in dragnet U.S. security surveillance. But she also calls out EU member states for national security practices that are not so different from American methods.

I asked Lissens whether the U.S.-EU Data Privacy Framework can hold up when it does not require the United States to divulge to European complainants how their privacy was compromised or what was done about it. She fairly answered that European citizens usually can expect nothing more from their own governments. 

Moreover, Lissens questions the competence of European courts in the EU treaty system to apply data protection law at all to the national security apparatuses of EU member states, much less to challenge U.S. policy. While she has admiration for the work of European privacy advocates such as Max Schrems, she challenges the very premise of the Schrems decisions in the EU Court of Justice insofar as they assumed jurisdiction over national security policy by way of data protection enforcement.

Among Lissens's distinguished credentials is a 2020-21 stint at Duke University, my alma mater in law, where she held a scholarship to study as a master's student and started adding expertise in U.S. law to her multi-jurisdictional expertise. Lissens, who herself has taught comparative law and graciously visited my class in the past via Zoom, is on the academic job market. She is a gifted scholar and teacher, so schools, place your bids.

Belgian-waffle makers battle over whose doughy goodness won pride of place on Oprah's list

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Two Massachusetts business are embroiled in a mouth-watering lawsuit over waffles and Oprah.

Oprah's 2021 "favorite things" featured "Eastern Standard Provisions Gourmet Liège Belgian Waffle Gift Box." Yum.

Eastern Standard Provisions is based in Waltham, Mass., and lists its "Classic Liège Belgian Waffles" for sale online. Here's the pitch:

Our artisanal Classic Liège Belgian Waffles are crafted with real butter and pearl sugar imported from Belgium for a light, sweet crunch. Our Classic Liège Belgian Waffles are different than other waffles you may be used to. Most waffles are made with batter, but our Classic Liège Belgian Waffles are made from dough delivering a soft, brioche-like texture and a one-of-a-kind waffle experience.

This is not Eastern Standard's Oprah debut. Its "artisanal soft pretzels" made the grade in 2019.

But wait. Based in Attleboro, Mass., the Burgundian gourmet street-food brassiere claims in a lawsuit (via WCVB) that Oprah picked Burgundian waffles for the list, because Eastern Standard ripped off the Burgundian recipe it had learned under a non-disclosure agreement when the two explored a co-branding venture.

According to the lawsuit, Burgundian founder Shane Matlock learned how to make the Liège waffles while serving in the U.S. Army, when, for three of 15 years, he was stationed on the France-Belgium border, and, the Burgundian website says, he premiered the waffles in Providence, Rhode Island (my home state, near Attleboro) in 2017.

All I know for sure is that I now have a craving for waffles.

The case is The Burgundian LLC v. Hawthorne Food Co. (Mass. Super. Ct. Suffolk Dep't Bus. Litig. Sess. filed Feb. 3, 2022).  The plaintiff alleges, inter alia, breach of contract, violation of state trade secret law, passing off, false advertising, and unfair trade practices.