Privacy and autonomy are closely intertwined. Through privacy, we gain the ability to think and behave as we see fit — and without excessive external oversight. However, present-day privacy is deeply complicated, influenced by ongoing legislative developments and advancements in technology. In a data-driven world, it becomes increasingly difficult to protect privacy, especially given our collective reliance on (and, often, enthusiasm for) the very digital tools that threaten data privacy in the first place.
The good news? There are many ways to navigate these challenges. We see this in the enhanced privacy protections adopted in Europe, as well as the efforts to replicate such protections in the United States.
Efforts such as the European Union’s General Data Protection Regulation (GDPR) make users less vulnerable to manipulation, strengthening transparency, consent, and even protections against breaches. This article will discuss these distinctions in more detail below, revealing why the American and European mindsets and frameworks surrounding privacy look so different — and what this means for both businesses and consumers.
How We Got Here: Diverging Histories of Privacy Protection
It is impossible to truly understand what privacy means in the U.S. and in Europe without recognizing the many historical developments that have gotten us to where we are today. While the GDPR seems groundbreaking, it can arguably be framed as the culmination of a long tradition of European laws that reflect a commitment to privacy and dignity.
Early U.S. Focus on Individual Rights and Limited Government Restraints
Although the U.S. Constitution does not expressly mention privacy, many historians argue that privacy has been a core value from the very beginning. The right to privacy is often referenced in connection to the Fourth Amendment, which protects us against unreasonable search and seizure. This desire for privacy was also implied in the very structure of our early government. For example, initial efforts to weaken the federal government were evident in the Articles of Confederation, which reflected a core resistance to government overreach.
Through the years, many legislative and Supreme Court developments have strengthened our resolve to prioritize privacy. Justice Louis Brandeis even famously argued for the "right to be let alone." In the decades to follow, rulings surrounding sealed mail and even the use of contraceptives have demonstrated a growing recognition of the role privacy could play in supporting human dignity and autonomy.
Europe’s Fundamental Rights Tradition and Early Data Protection Efforts
The role of privacy has varied considerably throughout Europe during the last few centuries, although there are a few significant throughlines. Germany was a trailblazer in this regard during the early 20th century, sparked, in part, by efforts to strengthen the rights to one's own image after shocking photos of Chancellor Otto von Bismarck were spread. Germany also led the charge surrounding the idea of "general personality rights."
Other countries, although less explicit at the time, referenced personal rights surrounding honor and dignity. The advancement of certain technologies (such as the telephone) and mass media has also increased public awareness about privacy protections.
By the 1970s, data protection efforts in European countries began to echo the American privacy regulations of the time, with Germany and France passing comprehensive data protection laws. This effort expanded with the formation of the European Union, paving the path to a Data Protection Directive in 1995 and eventually the GDPR.
Cornerstone Laws on Each Side of the Atlantic
Today, legislative approaches to safeguarding privacy look dramatically different on either side of the Atlantic. These distinctions reflect a fundamental divide regarding the role of the government in protecting privacy and the need for centralized frameworks.
The Fourth Amendment and the Patchwork of U.S. Statutes
There is still no explicit right to privacy stated in U.S. law, although there are certainly allusions to it. The Fourth Amendment remains the closest we have to a federal guarantee of privacy; however, interpretations of how this relates to privacy vary considerably.
Beyond this, a patchwork of federal and state-based regulations provides some guidance, highlighting how privacy can be pursued or protected in various settings. With the Health Insurance Portability and Accountability Act (HIPAA), for example, patients have the right to access their protected health information.
Some states have since adopted regulations that echo elements of the GDPR. The California Consumer Privacy Act (CCPA), for example, highlights the need for consumers to know when their data is collected while also prioritizing their ability to request its deletion.
GDPR as Europe’s Comprehensive Standard for Data Privacy
The General Data Protection Regulation forms the basis for data privacy protection in Europe. Adopted in 2016 and made effective in 2018, this regulation imposes strict requirements surrounding consent, transparency, and erasure — or the right to be forgotten.
Ultimately, this regulation centers on "personal data," which involves all information relating to identifiable individuals. Among the many other rights outlined in the GDPR are data portability and the right to restrict processing. While skeptics believe that this has prompted significant compliance burdens for small businesses, advocates argue that this groundbreaking legislation has empowered consumers and even limited data breach impact among compliant businesses.
Surveillance and State Power
Discussions of the right to privacy are complicated, in part, by ongoing surveillance efforts that blur the boundaries between individual privacy and national security. While current discussions surrounding data privacy often relate to tech-related innovations in the commercial sector, there is still a need for transparency and oversight for government programs that involve surveillance.
Post‑9/11 Statutes, NSA Programs, and Judicial Oversight in the U.S.
Following September 11th, the U.S. enacted several laws to boost national security via counterterrorism strategies. This included the expansion of the National Security Agency (NSA), which launched numerous surveillance programs in hopes of detecting (and preventing) future terrorist activity.
The USA PATRIOT Act sparked controversy with its expansion of government surveillance power, granting government agencies access to personal data that had been protected in the past. While the Foreign Intelligence Surveillance Court (FISC) had previously been established to oversee surveillance warrant requests, revelations regarding warrantless wiretaps suggested that the government had bypassed such judicial oversight.
European Court Oversight and Proportionality Tests for State Surveillance
In the EU, the emphasis on the right to privacy expands beyond requirements outlined in the GDPR to include several protections in the Charter of Fundamental Rights of the European Union. Article 8, for example, details the protection of personal data, while Article 7 explains a commitment to "respect for private and family life."
Meanwhile, the principle of proportionality is built into EU legal frameworks, suggesting that government measures cannot "impose a burden on the individual that is excessive in relation to the objective sought to be achieved." In the context of data privacy, this means that any data collection efforts sparked by public authorities must be clearly justified and limited in scope.
Corporate Data Practices and Consumer Rights
Despite compliance challenges, business leaders largely regard data as a competitive advantage, offering in-depth insight into consumer preferences and behaviors. Personal information can help businesses tailor their products or services to better reflect consumers' needs and values. While consumers appreciate these personalized offerings, they also express a strong distrust of corporate data practices, which include tracking user website activity and selling that data to third parties.
Amid these practices, there is a growing recognition that data privacy falls under the broader umbrella of consumer rights, relating closely to the right to safety and the right to be informed.
Data Brokers, Tech Giants, and Disclosure Driven Consent in the U.S.
Data brokers collect and analyze personal information, often with limited oversight. However, many consumers remain unaware of the extent to which these brokers gather their information. Tech giants are similar in that they collect high volumes of data (although this qualifies as first-party information gathered directly through various products and platforms).
In both situations, issues of consent can feel murky. Even when consumers technically agree to data collection, overly complex terms may prevent them from actually understanding what, exactly, they are agreeing to or how this might affect them.
True consent to disclosure involves clear and voluntary agreement, in which consumers understand what will be collected and how it will be used. This is generally not mandated in the U.S., although there are exceptions. HIPAA, for example, governs the disclosure of protected health information. Disclosure is also a central component of CCPA — although, unlike the GDPR, there is a focus on providing the chance to opt out as opposed to the specific need to opt in.
Obligations to Minimize, Justify, and Secure Data Under European Law
The GDPR goes beyond disclosures to promote data minimization, in which parties collecting data limit this effort to information that is clearly relevant and necessary. Those collecting data must highlight grounds (otherwise known as lawful basis) for processing data, ensuring that such activities are justified and proportionate to intended purposes. The GDPR also outlines the need for "appropriate technical and organizational measures" to ensure that security reflects associated levels of risk.
Enforcement Mechanisms and Penalties
Any exploration of global privacy regulations should delve not only into the legislation itself but also into how these requirements are actually enforced. Once again, there are considerable differences here between the U.S. and European approaches, prompted, in part, by distinct regulatory frameworks and cultural attitudes regarding data privacy.
Fragmented U.S. Enforcement by States and Federal Agencies
The few data privacy laws in place in the U.S. are often unevenly enforced, with agencies lacking the resources needed to consistently confirm compliance or impose penalties. This inconsistency stems partly from the division of enforcement among so many agencies. At the federal level, many of these responsibilities fall to the Federal Trade Commission (FTC). HIPAA's privacy and security rules, meanwhile, are typically enforced by the Health and Human Services' Office for Civil Rights.
EU Supervisory Authorities, Cross Border Cooperation, and Significant Fines
In Europe, data privacy enforcement is driven heavily by the European Data Protection Board (EDPB), which is responsible for "issuing guidelines on the interpretation of core concepts of the GDPR" and promoting the "uniform application of EU rules." GDPR enforcement is monitored by supervisory authorities, which are granted considerable investigative powers and expected to conduct audits or even impose sanctions.
Significant fines can turn noncompliance into a "costly mistake," with even "less severe" infractions prompting fines of "up to €10 million, or 2% of the firm’s worldwide annual revenue from the preceding financial year."
Cross-Border Data Transfers and the Compliance Puzzle
In the U.S., compliance difficulties are often exacerbated by global frameworks, which businesses may need to navigate if they handle sensitive information from consumers in other countries. As EU guidance reveals, the GDPR is "extra-territorial in scope," as it is designed "not so much to regulate businesses as it is to protect the data subjects’ rights."
From Privacy Shield to Contractual Clauses — U.S.‑EU Transfer Tensions
A framework known as the EU-U.S. Privacy Shield once regulated transatlantic data exchanges, providing mechanisms by which U.S. companies could comply with EU data protection requirements. This was invalidated by the European Court of Justice (ECJ), however, largely due to concerns surrounding U.S. surveillance practices and privacy disparity between the two regions.
Since then, the EU-U.S. Data Privacy Framework has been deemed adequate, allowing for the transfer of data from the EU to the U.S. Still, there are ongoing concerns regarding the framework's future and its long-term ability to facilitate the flow of data between the EU and the U.S.
Adequacy Decisions and Continuing Legal Challenges in Europe
Adequacy decisions provide a mechanism for the EU to confirm that non-EU countries offer sufficient levels of data protection. Their presence allows data to flow freely between the EU and other countries without requiring extra legal measures or safeguards. The EU has granted adequacy decisions to many countries, but some of these have been subject to considerable scrutiny, as evidenced by the Schrems decisions (which invalidated the EU-U.S. Privacy Shield).
Culture, Public Perception, and Business Impact
While the U.S. approach to promoting data privacy has sparked considerable criticism, there are a few upsides worth considering. For example, under this approach, businesses may not need to clear as many regulatory hurdles, allowing them greater freedom to experiment with advanced technologies — including emerging AI-powered opportunities. There is now a push to maintain these advantages while also advocating for greater protections to address the privacy disparity between the U.S. and the EU.
American Trade Offs Between Innovation and Privacy Protections
The American economy rewards innovation. This is a crucial component of the nation's incredible success stories, spanning industries such as entertainment, finance, and especially tech. Data analytics support innovation by providing valuable insight into what consumers value and how they actually behave in various situations. These data-driven processes may potentially come at the cost of privacy; however, privacy-focused legislation and compliance efforts can help safeguard consumers.
European Emphasis on Privacy as a Fundamental Right and Market Differentiator
In Europe, data privacy is widely viewed as a right, akin to freedom of expression. The right to data protection privacy is even referenced in the EU Charter of Fundamental Rights. While skeptics feel that this can limit innovation, advocates view this as a competitive advantage, suggesting that businesses that prioritize consumer privacy are better capable of fostering trust and responsible innovation.
Looking Ahead: Emerging Tech and Future Rules
Current data privacy regulations provide a foundation for safeguarding consumer information. While some feel this does not go far enough, many regulations offer a decent starting point for dealing with straightforward concerns: developing consent protocols, for example, or encrypting sensitive information. As technological opportunities expand, however, there will be a greater need for sophisticated strategies that take AI-powered solutions into account.
AI, Biometrics, and the Push for Unified U.S. Federal Legislation
Data privacy challenges are expected to escalate as artificial intelligence transforms entire industries. After all, AI solutions run on data. This can be anonymized to help protect individual identities, but there remains a considerable risk of re-identification. Biometrics exacerbate these risks by adding personal characteristics to the mix. These concerns have sparked renewed interest in federal data privacy legislation, with multiple proposals drafted in recent years.
Europe’s Evolving Digital Strategy and AI Governance Models
The European Commission has adopted a system known as the Applied AI Strategy. Although it’s primarily focused on reducing Europe's dependence on U.S. AI-powered solutions, it also aims to ensure that AI remains "human-centric and trustworthy." The European Commission's proposed AI legal framework is expected to "uphold fundamental rights and address safety risks specific to the AI systems."
Strengthen Your Understanding of Data Privacy with an Online Master of Legal Studies
As data privacy concerns continue to escalate, there will be a strong need for knowledgeable legal professionals with an in-depth understanding of evolving regulatory frameworks. Equipped with these insights, legal professionals can safeguard both businesses and consumers by guiding cybersecurity-focused compliance and risk management. Regulatory knowledge is crucial — and it can be developed while pursuing a Master of Legal Studies (M.L.S.).
Available online, the University of Miami School of Law's Master of Legal Studies offers not only a foundational overview of legal research and corporate compliance but also tailored coursework that reflects major developments within the quickly changing cybersecurity landscape. Miami Law’s Law and Technology Track delves into the many legal and regulatory challenges surrounding emergent technologies, detailing challenges and opportunities related to machine learning, cryptocurrency, and global data privacy.
How Miami Law’s M.L.S. Can Help You Navigate Privacy Disparities
Data privacy regulations can be difficult to understand, especially given the considerable differences between requirements enacted at the state, federal, and global levels. The M.L.S. Technology Track clarifies these distinctions with coursework detailing federal and global approaches to data privacy, privacy disparity, and cybersecurity.
In-depth analyses of the GDPR and other data privacy laws can reveal meaningful distinctions surrounding consent and cross-border data transfer — concepts that will prove crucial for tomorrow's compliance and risk management specialists.
Make an Impact in a Competitive Compliance Landscape
Evolving regulatory landscapes promise to bring new challenges to promoting data privacy and achieving compliance. These complex issues call for a thorough understanding of data privacy law, including global regulations. These concepts are explored in detail within Miami Law's online Master of Legal Studies curriculum. Reach out today to learn more about this innovation-focused M.L.S. program and how it can provide powerful preparation for tackling the compliance challenges of tomorrow.
Sources
https://constitution.congress.gov/constitution/amendment-4/
https://www.reaganlibrary.gov/constitutional-amendments-amendment-4-right-privacy
https://www.brennancenter.org/events/constitutional-meaning-shadow-articles-confederation
https://thinkwy.org/columns/brandeis-a-great-justice-and-the-right-to-be-let-alone/
https://www.sciencedirect.com/science/article/pii/S0267364922000620
https://donnees-rgpd.fr/loi-informatique-libertes/
https://gdpr-info.eu/art-32-gdpr/
https://www.csoonline.com/article/567037/does-gdpr-compliance-reduce-breach-risk.html
https://www.csis.org/analysis/protecting-data-privacy-baseline-responsible-ai
https://www.gdprsummary.com/schrems-ii/
