Data Protection Directive - Comparison With US Data Protection Law

Comparison With US Data Protection Law

The United States prefers what it calls a 'sectoral' approach to data protection legislation, which relies on a combination of legislation, regulation, and self-regulation, rather than governmental regulation alone. Former U.S. President Bill Clinton and former Vice-President Al Gore explicitly recommended in their "Framework for Global Electronic Commerce" that the private sector should lead, and companies should implement self-regulation in reaction to issues brought on by Internet technology. To date, the US has no single data protection law comparable to the EU's Data Protection Directive. Privacy legislation in the United States tends to be adopted on an ad hoc basis, with legislation arising when certain sectors and circumstances require (e.g., the Video Privacy Protection Act of 1988, the Cable Television Protection and Competition Act of 1992, the Fair Credit Reporting Act, and the 2010 Massachusetts Data Privacy Regulations). Therefore, while certain sectors may already satisfy the EU Directive, at least in part, most do not.

The reasoning behind this approach probably has as much to do with American laissez-faire economics as with different social perspectives. The First Amendment of the United States Constitution guarantees the right to free speech. While free speech is an explicit right guaranteed by the United States Constitution, privacy is an implicit right guaranteed by the Constitution as interpreted by the United States Supreme Court, although it is often an explicit right in many state constitutions.

Europeans are acutely familiar with the dangers associated with uncontrolled use of personal information from their experiences under World War II-era fascist governments and post-War Communist regimes, and are highly suspicious and fearful of unchecked use of personal information. World War II and the post-War period was a time in Europe that disclosure of race or ethnicity led to secret denunciations and seizures that sent friends and neighbors to work camps and concentration camps. In the age of computers, Europeans’ guardedness of secret government files has translated into a distrust of corporate databases, and governments in Europe took decided steps to protect personal information from abuses in the years following World War II. Germany and France, in particular, set forth comprehensive data protection laws.