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Page count: 15

In the 1990s and early 2000s many scholars predicted that the common challenges faced by the U.S. and the EU would over time lead to some form of regulatory convergence or even to the emergence of shared constitutional standards. Under the Obama Presidency, however, the U.S. and Europe have been heading in diametrically opposite directions, especially as far as the protection of informational privacy through constitutional law is concerned. The paper starts by analyzing how the U.S. Supreme Court in the Obama/Roberts era has significantly lowered the level of constitutional protection for many salient informational privacy claims both for U.S. persons and for foreigners, especially by exempting the U.S.'s domestic and international surveillance architecture from constitutional review. In contrast, the CJEU has used the constitutionalization of privacy as a means to re-invent itself as a constitutional and a fundamental rights court. This paper takes up the questions that arise from the divergence, namely whether one of the two courts' approaches is better able to guide us towards a sustainable legal framework for transatlantic data transfer in the 21st century.