The New American Privacy

Abstract

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.

Keywords: privacy, right, EU, European Union, regulation, civil rights, free speech, freedom of expression, freedom of speech, freedom of information, copyright, fair use, comparative law

JEL Classification: H11, H73, H77, I31, K10, K13, K19, K22, K23, K30, K33, K39, M30, O30, O33, O34, O38, O39, P52