Contrasting the EU and the US privacy regimes


Much of what happens in networks leaves digital fingerprints, thus the reason for privacy issues of users. Since privacy regulations differ according to regions, companies or organizations are not obligated to comply with the regulations of every region but only comply with regulations of the regions they operate in. Even countries that are considered developed and states that have come together such as the United States and the European Union have distinct approaches to privacy in their bid to ensure correct use of personal data. With the legislation proposed by the European Union in 2012, the tension between the EU and the US on the approaches to privacy has been aggravated. The legislation proposed by the EU aim at doubling down the 1995 EU directive approach with regard to data protection, suggesting a rights to be forgotten and much more data processing requirements consent. This signals that there is some disparity between the privacy regimes of the US and that of the EU. The basis of this paper is to contrast privacy regimes in the United States and the European Union.

Basis of privacy legislations

Within the United States, privacy regulations are founded partially on self-regulatory approaches where organizations give privacy notices committing themselves to specific privacy promises. In case such commitments are breached, the FTC has the mandate of penalizing or prosecuting the specific organization.  However, the mandate of FTC generally spans the promises that were committed, hence an organization can dictate how strictly it intends on upholding privacy by moderating the promises it commits itself to enforce. In several situations, persons are only guaranteed the right to opt out of specific application of their data, and normally no guarantee at all to restrict the gathering of data about themselves by various organizations. Within the European Union, the regulations regarding personal consent for data gathering, use as well as disclosure are much stringent, and in most cases affirmative consent is required.

Scope of legislation

The European Union has two major legislation governing privacy in the information society. The regulations include the e-privacy Directive and the Data Protection Directive. These regulations are applicable to automated personal data processing as well as processing of any personal information that forms a component of the filing system. The directive elucidates personal data as information relating to an identifiable natural person. However, personal data processing regarding public defense, security, state security agencies or aspects of criminal law are not under the scope of the Directive. The European Union, does have a comprehensive regulation regarding all data processors, the regulations could be deemed as omnibus as opposed to being sectoral.

Within the United States, legislation on privacy exists in specific industries, however, the legislation of each industry is distinct, and does not regulate several data repositories. The United States does not have a comprehensive privacy law as in the case of the European Union. The United States on a state level, have established some regulations to govern privacy. The three main federal data protection laws within the United States include the Fair and Accurate Credit Transaction Act, the Health Insurance Portability and Accountability Act and the Children’s Online Privacy protection Act.

Issues of contention

The EU and the US are skeptical about each other. Most researchers within the United States view the approach by the European Union as smothering innovation, being unreasonable and stifling critical flow of information. Researchers in the European Union on the other hand view the approach by United States as being unprincipled, hostile to personal dignity as well as similar to a case where there is no regulation at all. However, the European Union and the United States do not substantially diverge on the aspect of privacy. Between the European Union and the United States, there are no notable disputes regarding the reasonable information practice principles, a fundamental backbone for protection of privacy globally. The difference lies much in how they are enforced as opposed to recognizing such principles.

Differences between the privacy regimes of the US and the EU.

The fundamental difference between the privacy regimes of the European Union and the United States is more of a philosophical one as opposed to being a divergence regarding privacy conception. The difference generally lies in the manner of thinking. Within the European Union, there is a huge concern over first expressing principles a key pillar of fundamental rights. The rhetoric has an absolutist basis and often lofty. Fundamental rights are usually brought out as being paramount and not limited by any divergent interests. The European Union privacy regulation is aspirational to say the least. Despite this seemingly good perspective, there is a different side of the European Union privacy law emerges. There is still a significant privacy law protections divergence across several members’ nations of the European Union. As opposed to how boldly and cleanly European Union privacy legislations are rolled out, the enforcement is usually sporadic, weak and unpredictable.

In the United States, there is a pragmatic approach towards privacy regulation. The approach taken by the United States reflects a balancing act of privacy with other fundamental interests. It focuses less on articulating outstanding principles, and is devoid of the purity exhibited by the approach taken by the European Union. It makes more sense in the United States such that regulations must be adhered to, and if that is not the case then they shall be enforced. Furthermore, the practical penalties such as legal suits, make it very expensive not to comply. Consequent to this differences, states in the European Union umbrella are much comfortable living with a compromised and a messier set of privacy regimes.

Companies in the United States are much comfortable dealing with a set of privacy regulations that showcase compromise as well as practical realities as opposed to regulations that are not enforced. The limitation with the approach of the European Union is that organizations struggle to understand how to comply with no consistent or stable regulations. The limitation with the approach by the United States is that the regulations are usually scattered around and have many loopholes. Both the US and the EU definitely have something to borrow from each other.

Within the European Union regulation, personal data can be gathered only within stringent conditions for purposes that are legitimate. The fundamental concept of the European Union privacy regulation is the Data protection Directive 1995/46/EC. The United States does not have a comprehensive law that regulates personal data collection and processing (Mendez, 2010). Nevertheless, there is privacy regulation via several federal and state laws. The various approaches of the United States and the European Union with regard to privacy legislation are probably founded on history. In the entire Europe, where citizens have witnessed dictatorships, data protection is a human right enshrined in the constitution and regulated through a detailed data protection legislation. Notable instances include the state security service in East Germany that employed private informers mandated to listen and transcribe citizen’s phone conversations. Contrasting this to the US, the attitude towards privacy legislations is controlled majorly by market forces.

After the September 11, 2001 incident on the world trade Centre, the United States adopted the Patriot Act which reduced significantly the restrictions on collection of personal data mainly by agencies tasked with law enforcement. The general perception which is seemingly untrue is that European Union has superior laws on privacy as compared to United States. In a detailed list of specific areas, European Union has highlighted what information can be disseminated about individuals, whereas the United States has none. By contrast, Privacy in the European Union law is enshrined explicitly. The European Convention on Human Rights Article 8 guarantees the right to respect for Family and private life as well as protection of personal data.

Generally, it can be asserted that the European Union privacy framework with regard to law enforcement is founded by detailed guarantees to data protection, which are enlisted in European Union primary and secondary law and augmented by ECHR case law as well as EU. In contrast, the United States Data protection guarantees within national security and law enforcement context, are specific to areas and thus enshrined in different instruments that give outright power to United States agencies to easily process personal data. They are less comprehensive and vary according to specific instrument.

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