Tradeoffs in Personal Data Privacy: A Swedish Church Lady, Austrian Public Radio Employees and Transatlantic Air Carriers Show that Europe Does Not Have the Answers
55 Pages Posted: 19 Nov 2010
Date Written: August 13, 2007
For several years, legal scholars, policy makers and the business community in the US have been debating how the law should deal with privacy in personal information. Recent data security breaches in the US, such as the data thefts at Choicepoint in 2004 and CardSystems in 2005, have heightened this debate. At the heart of the issue is the question of tradeoffs: do we want more privacy in our data and, as a consequence, less efficiency and higher costs in the flow of data in commerce? Will we tolerate less security as a result of heightened restrictions on the access to our personal data that might be useful in combating crime or terrorism? Thus far, the US has protected personal data only in an ad hoc, sectoral manner, either regulating specific industries or specific types of information and then, only in reaction to specific data protection problems. As the debate about where the tradeoffs should be made continues, some have looked to the European Union’s very different comprehensive statutory approach to data protection through its Data Protection Directive for guidance. Some have suggested that the European approach might in certain respects serve as a model for a more comprehensive legislative approach to data protection in the US. This article posits that the European Data Protection Directive has not effectively made the tradeoffs that, on its face, it purports to make. By examining the Directive through the lens of the developing case law of the European Court of Justice interpreting it, this article shows that the European model is unworkable in making the tradeoffs and is therefore an inappropriate model for any proposed US comprehensive data protection regime.
Keywords: Privacy, Data, Personal, Information, Security, European Union, Data Protection Directive
JEL Classification: K40, K41, K13, K22
Suggested Citation: Suggested Citation