Confronting Totalitarianism at Home: The Roots of European Privacy Protections

Abstract

In the last several years, a consensus has developed that a wide gulf exists between European and American privacy law, although division still exists on whether European law is “more protective” or simply “home to different intuitive sensibilities” than American law. Existing research on the development of European privacy law has focused on two areas: nineteenth-century traditions of honor and dueling, which gave rise to a concept of privacy linked to dignity, and the totalitarian dictatorships of the twentieth century, in reaction to which privacy protected liberty. This Article offers a contrasting view by showing that European privacy law in the post-World War II era was intended to defend a particular aspect of the “private sphere” — marriage, reproduction, and the family — from the type of omnipresent scrutiny that had been a core aspect of the racial state under the Nazi regime. Although both European and American concepts of privacy have undoubtedly changed over time, understanding the original intent embedded in European privacy law shows that divergence between the two systems has been largely misunderstood.

Keywords: privacy, reproductive rights