The EU and the US have often engaged in a “tit for tat” exchange with regard to their respective systems of privacy protection. For example, EU academics have criticized US law as reflecting a “civil rights” approach that only affords data privacy rights to its own citizens, whereas US commentators have argued that privacy protection in the EU is less effective than its status as a fundamental right would suggest.
I am convinced that neither the EU nor the US properly understands each other’s approach to data privacy. This is not surprising, given that a sophisticated understanding of the two legal systems requires language skills and comparative legal knowledge that few people have on either side of the Atlantic. The close cultural and historical ties between the EU and the US may also make mutual understanding more difficult, since concepts that seem similar on the surface seem may actually be quite different in reality.
I like to think of the difference between the EU and US concepts of data privacy rights as reflecting the differing epistemological views of the rationalist philosophers (e.g., Descartes) versus those of the empiricists (e.g., Hume and Locke) who influenced development of the legal systems in Europe and the US. EU data protection law derives normative rules based mainly on reason and deduction (as do the rationalists), while US privacy law bases legal rules more on evidence drawn from experience (like the empiricists). It is thus no surprise that the law and economics approach that is so influential in US jurisprudence is largely unknown in EU data protection law, while the more dogmatic, conceptual approach of EU law would seem strange to many US lawyers. An illustration is provided by the recent judgment of the Court of Justice of the European Union dealing with the “right to be forgotten” (C-131/12 Google Spain v AEPD and Mario Costeja Gonzalez), where the Court’s argumentation was largely self-referential and it took little notice of the practical implications of its judgment.
Here is a brief discussion of six important areas of difference between data privacy law in the EU and US, with a particular focus on their systems of constitutional rights:
Omnibus vs sectoral approach: The EU has an overarching legal framework for data privacy that covers all areas of data processing, based on EU constitutional law (e.g. the EU Charter of Fundamental Rights), the European Convention on Human Rights, the EU Data Protection Directive, national law, and other sources. In the US, there is no single legal source protecting data privacy at all levels, and legal regulation operates more at a sectoral level (e.g., focusing on specific areas such as children’s privacy, bank data etc).
Constitutional rights as the preferred method of protection: The US Supreme Court has interpreted the US Constitution to create a constitutional right to privacy in certain circumstances. However, from a US viewpoint, constitutional rights are only one vehicle to protect data privacy. Commentators have described the strengths of the US system for privacy protection as comprising a myriad of factors, including “an emergent privacy profession replete with a rapidly expanding body of knowledge, training, certification, conferences, publications, web-tools and professional development; self regulatory initiatives; civil society engagement; academic programs with rich, multidisciplinary research agendas; formidable privacy practices in leading law and accounting firms; privacy seals; peaking interest by the national press; robust enforcement by Federal and State regulators, and individual and class litigation”. In contrast, in the EU the key factor underlying data protection is its status as a fundamental right (see, e.g., Article 1 of the EU General Data Protection Regulation proposed by the European Commission in 2012).
Different conceptions of rights: In the US, a constitutional right must by definition derive from the US Constitution, while in the EU, fundamental rights are considered “general principles of law” that apply to all human beings within EU jurisdiction even if they do not derive from a specific constitutional source. The concept of fundamental rights in the EU is thus broader and more universal than that of constitutional rights in the US.
Positive and negative rights: In the US, privacy is generally protected as a “negative” right that obliges the government to refrain from taking actions that would violate constitutional rights. In the EU the state also has a constitutional obligation to affirmatively protect privacy rights (see the next point below).
Requirement of state action: US law protects constitutional rights only against government action, while in the EU the state also has a duty under certain circumstances to protect the privacy of individuals against violations by nongovernmental actors. An example from outside the area of privacy is provided by the decisions of the European Court of Human Rights (ECHR) in Case of Z and Others v. United Kingdom (2001) and the US Supreme Court in DeShaney v. Winnebago County (1989). Both cases involved the issue of whether the state has a duty under constitutional law to protect a child against abuse by its parents; in essence, the ECHR answered “yes” and the US Supreme Court answered “no”.
Requirement of “harm”: In the EU, the processing of personal data is generally prohibited absent a legal basis, and the CJEU has ruled that a data protection violation does not depend on “whether the information communicated is of a sensitive character or whether the persons concerned have been inconvenienced in any way” (para. 75 of the Rechnungshof case of 2003). In the US data processing is generally allowed unless it causes some harm or is otherwise restricted by law.
The EU and US systems of privacy rights have each developed in a democratic system of government based on the rule of law, and have been shaped by unique cultural and historical factors, so there is little point in debating which one is “better”. However, the fact that the two systems are anchored in their constitutional frameworks does not mean that practical measures cannot be found to bridge some of the differences between them; I am part of a group (the EU-US “Privacy Bridges” project) that is trying to do just that. The two systems may also influence each other and grow closer together over time. For example, the call for enactment of a “consumer privacy bill of rights” in the framework for protection of consumer privacy released by the White House in February 2012 seems to have been inspired in part by the status of data protection as a fundamental right in EU law.
The central role played by constitutional factors in the EU and US systems of data privacy rights means it is essential that more attention be given to the study of privacy law from a comparative constitutional perspective. For example, I wonder why there is so little opportunity in US law schools to study EU data protection law, and vice-versa? Efforts must be increased on both sides of the Atlantic to better understand each other’s systems for protecting data privacy rights.