The Notion of 'Fair Processing' in Data Privacy Law

This paper examines how the concept of "fair processing" is evaluated under US and European data protection law. The paper first examines the FTC's "fairness" test, which involves an explicit cost-benefit analysis, before focusing on Article 6 of the European Data Protection Directive and related case law on "fair processing." The paper then examines "fair processing" from the law and economics perspective, and from the perspective of whether general standards are superior to detailed rules. The paper links the debate on generality versus specificity of norms to the question of whether the proposed EU General Data Protection Regulation may be too detailed and prescriptive