Back in December, U.S. Department of Commerce General Counsel Cameron Kerry gave a speech in which he said that his agency would be "watching closely" how the European Commission approached data privacy protection in its then-unreleased data protection regulations. At the time, neither the European Commission nor the Department of Commerce had released their data privacy protection proposals.
The European Commission's proposal for a data protection regulation is out now. Commerce's proposal is expected to be released any day.
There seems little doubt that, when the two documents are laid side-by-side, they will reveal a difference in approach to privacy as wide as the Atlantic itself.
In his speech, Kerry promised that his agency's forthcoming "white paper" proposal would call for a "comprehensive Bill of Rights as a baseline for consumer data privacy." Because data privacy protection is a significant financial burden on business, particularly on the dynamic (and notoriously insecure) internet, the privacy rights that Commerce eventually proposes will necessarily be tempered by the needs of businesses to maximize the return on their activities and to eliminate barriers to future innovation. A true privacy right emanating from the Department of Commerce would be an odd duck indeed. Perhaps the thought here is that online businesses should be given same sort of friendly regulation that domestic agriculture receives from the Department of Agriculture.
Over on the other side of the Atlantic, the European Commission's privacy proposal describes the following as fundamental human rights:
The EC also proposed additional rights for individuals in cases of sensitive data, data-mining, and profiling. All of the rights proposed by the EC would be enforced by data protection authorities in each EU member state, who have authority to impose rather large fines, and by private lawsuits in local courts.
The green paper reflects the reality that there is very little sentiment among federal government officials to write into law strong data privacy rules along the lines of those proposed by the European Commission. The United States and Europe are fundamentally at odds over the nature of privacy rights. We don't agree with Europe on the nature of privacy or on how privacy rights/interests/expectations should be enforced. This state of affairs is not going to change soon, unless a movement in favor of individual privacy rights materializes soon. Though something along the lines of the recent SOPA/PIPA uprising might do it.
By Thomas O'Toole
Follow this blogger on Twitter at @bnatechlaw.
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