wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
W hitman concludes that “there is little reason to suppose that Ameri
cans will be persuaded to think of their world of values in a European
way any time soon; American law simply does not endorse the general
norm of personal dignity found in Europe.”33
Many commentators have embraced W hitman’s thesis because his
characterizations of American and European society resonate at a gen
eral level. America and Europe certainly have created different legal
regimes to regulate privacy. Through the European Union Data Pro
tection Directive, Europe regulates privacy with a comprehensive set
of rules. T he approach in the United States is “sectoral,” a patchwork
of laws that protect privacy in certain areas, but with significant gaps
and omissions. Joel Reidenberg notes, “[T]he United States has re
sisted all calls for omnibus or comprehensive legal rules for fair infor
mation practice in the private sector. Legal rules have developed on an
ad hoc, targeted basis, while industry has elaborated voluntary norms
and practices for particular problems.”34
It is erroneous, however, to view differences between the protection
of privacy in different countries in too essentialist a manner—as rooted
in fundamentally incompatible conceptions of privacy. Divergences
between the ways different societies protect privacy do not necessarily
stem from conceptual differences about privacy. Comparative-law
186
P
r
i v a
c y : A N
e w U
n
d
e r
s t
a
n
d
i n
g
scholar Francesca Bignami explains that differences in American and
European privacy protections are often the product of diverging en
forcement strategies. In the 1970s, she notes, American and European
privacy laws had a great degree of similarity, but different ways of en
forcing the law led to significant differences. Europe enforces its laws
through privacy agencies; the United States does not.35 Many privacy
problems in the United States are enforced primarily by aggrieved
individuals bringing suit. Enforcement by individuals can be very
effective, but for certain problems, individual enforcement mecha
nisms alone are inadequate. Problems involving vulnerability harms
and power imbalances, for example, are difficult to remedy at the indi
vidual level.
Although certainly there are differences between the American and
European approaches to privacy, one should not lose sight of the re
markable similarities. The taxonomy illustrates that there is wide
spread recognition of each privacy problem across geographic borders.
In any particular country, there is rarely a unified conception of privacy
embodied in its norms and law) American attitudes and law about pri
vacy, for example, are incredibly diverse. American privacy law does
not orbit around one central concept but embodies a jumble of con
flicting ideas and values.
Viewed in totality, the degree to which so many countries recognize
the same set of privacy problems is more significant than the diver
gences. By and large, American and European law' recognize nearly all
the problems in the taxonomy. Americans may not have the same no
tion of dignity and honor as Europeans, but Americans still view pri
vacy problems that infringe upon dignity as harmful. Indeed, reputa
tional and psychological harms are well recognized in U.S. law.
In addition, countries often inform their cultural understanding of
privacy by drawing on other countries’ views. Although countries pro
tect privacy differently, there is a significant cross-pollination of ideas
regarding privacy problems. The basic framework for the European
Union Data Protection Directive emerges from an American privacy
report written for the Department of Health, Education, and Welfare
(HEW) in 1973 as part of the effort that led to the passage of the fed
eral Privacy Act of 1974.36 The H EW report recommended a code of
Fair Information Practices, which have influenced many laws in the
United States. The H EW report also helped shape the OECD Privacy
Privacy: A New Understanding
187
Guidelines of 1980, which form the basis of privacy laws in countries
around the world. Colin Bennett notes that there has been a conver
gence in the privacy law of modem industrialized nations: “[Wjhile the
nomenclature and codification may vary from country to country, the
substance and purpose of these [privacy] principles are basically the
same.”3'
Although the problems in the taxonomy are not universal, there is a
remarkable degree of consensus about them. W ith increasing global
ization, this consensus is likely to grow because countries share per
sonal information for security and business purposes.
The Benefits of a Pluralistic Conception of Privacy
In this book, I have attempted to provide a framework for under
standing privacy problems. Currently, too many courts and policy
makers struggle with identifying the presence of a privacy problem.
Protecting privacy requires careful balancing because neither pri
vacy nor its countervailing interests are absolute values. Unfor
tunately, because of conceptual confusion, courts and legislatures
often fail to recognize privacy problems, and thus no balancing ever
takes place. This does not mean that privacy should always win in
the balance, but it should not be dismissed just because it is ignored
or misconstrued.
W hen privacy is translated into the legal system, it is a form of pro
tection against certain harmful or problematic activities. The activities
that affect privacy are not necessarily socially undesirable or worthy of

W hitman concludes that “there is little reason to suppose that Ameri

cans will be persuaded to think of their world of values in a European

way any time soon; American law simply does not endorse the general

norm of personal dignity found in Europe.”33

Many commentators have embraced W hitman’s thesis because his

characterizations of American and European society resonate at a gen

eral level. America and Europe certainly have created different legal

regimes to regulate privacy. Through the European Union Data Pro

tection Directive, Europe regulates privacy with a comprehensive set

of rules. T he approach in the United States is “sectoral,” a patchwork

of laws that protect privacy in certain areas, but with significant gaps

and omissions. Joel Reidenberg notes, “[T]he United States has re

sisted all calls for omnibus or comprehensive legal rules for fair infor

mation practice in the private sector. Legal rules have developed on an

ad hoc, targeted basis, while industry has elaborated voluntary norms

and practices for particular problems.”34

It is erroneous, however, to view differences between the protection

of privacy in different countries in too essentialist a manner—as rooted

in fundamentally incompatible conceptions of privacy. Divergences

between the ways different societies protect privacy do not necessarily

stem from conceptual differences about privacy. Comparative-law

186

P

r

i v a

c y : A N

e w U

n

d

e r

s t

a

n

d

i n

g

scholar Francesca Bignami explains that differences in American and

European privacy protections are often the product of diverging en

forcement strategies. In the 1970s, she notes, American and European

privacy laws had a great degree of similarity, but different ways of en

forcing the law led to significant differences. Europe enforces its laws

through privacy agencies; the United States does not.35 Many privacy

problems in the United States are enforced primarily by aggrieved

individuals bringing suit. Enforcement by individuals can be very

effective, but for certain problems, individual enforcement mecha

nisms alone are inadequate. Problems involving vulnerability harms

and power imbalances, for example, are difficult to remedy at the indi

vidual level.

Although certainly there are differences between the American and

European approaches to privacy, one should not lose sight of the re

markable similarities. The taxonomy illustrates that there is wide

spread recognition of each privacy problem across geographic borders.

In any particular country, there is rarely a unified conception of privacy

embodied in its norms and law) American attitudes and law about pri

vacy, for example, are incredibly diverse. American privacy law does

not orbit around one central concept but embodies a jumble of con

flicting ideas and values.

Viewed in totality, the degree to which so many countries recognize

the same set of privacy problems is more significant than the diver

gences. By and large, American and European law' recognize nearly all

the problems in the taxonomy. Americans may not have the same no

tion of dignity and honor as Europeans, but Americans still view pri

vacy problems that infringe upon dignity as harmful. Indeed, reputa

tional and psychological harms are well recognized in U.S. law.

In addition, countries often inform their cultural understanding of

privacy by drawing on other countries’ views. Although countries pro

tect privacy differently, there is a significant cross-pollination of ideas

regarding privacy problems. The basic framework for the European

Union Data Protection Directive emerges from an American privacy

report written for the Department of Health, Education, and Welfare

(HEW) in 1973 as part of the effort that led to the passage of the fed

eral Privacy Act of 1974.36 The H EW report recommended a code of

Fair Information Practices, which have influenced many laws in the

United States. The H EW report also helped shape the OECD Privacy

Privacy: A New Understanding

187

Guidelines of 1980, which form the basis of privacy laws in countries

around the world. Colin Bennett notes that there has been a conver

gence in the privacy law of modem industrialized nations: “[Wjhile the

nomenclature and codification may vary from country to country, the

substance and purpose of these [privacy] principles are basically the

same.”3'

Although the problems in the taxonomy are not universal, there is a

remarkable degree of consensus about them. W ith increasing global

ization, this consensus is likely to grow because countries share per

sonal information for security and business purposes.

The Benefits of a Pluralistic Conception of Privacy

In this book, I have attempted to provide a framework for under

standing privacy problems. Currently, too many courts and policy

makers struggle with identifying the presence of a privacy problem.

Protecting privacy requires careful balancing because neither pri

vacy nor its countervailing interests are absolute values. Unfor

tunately, because of conceptual confusion, courts and legislatures

often fail to recognize privacy problems, and thus no balancing ever

takes place. This does not mean that privacy should always win in

the balance, but it should not be dismissed just because it is ignored

or misconstrued.

W hen privacy is translated into the legal system, it is a form of pro

tection against certain harmful or problematic activities. The activities

that affect privacy are not necessarily socially undesirable or worthy of