A Comparison between the European and the American Approaches to Privacy

Author:Donald L. Buresh
Position:Touro University Worldwide
Pages:257-285
SUMMARY

This paper compares the European and the American approach to privacy. The essay argues that the European approach to privacy is rights-based, whereas the American tactic is expectation-based. The article discusses the European Union General Data Protection Regulation, as well as the newly-adopted California Consumer Privacy Act. The paper contends that the latter is an American response to the... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2018 e Institute for Migrant Rights Press
I thank Inna Olesnycky and Frances M. Umek for taking time out of their busy sched-
ules to review this paper. Inna was particularly helpful in clarifying some of my mis-
conceptions regarding the General Data Protection Regulation and the California
Consumer Privacy Act.
a ComParison BEtwEEn thE
EuroPEan and thE amEriCan
aPProaChEs to PrivaCy
Donald L. Buresh
Touro University Worldwide
E-mail: LoganSquareDon@sbcglobal.net
is paper compares the European and the American approach to
privacy. e essay argues that the European approach to privacy
is rights-based, whereas the American tactic is expectation-based.
e article discusses the European Union General Data Protection
Regulation, as well as the newly-adopted California Consumer Privacy
Act. e paper contends that the latter is an American response to the
former. e paper concludes that if individuals prefer strict protection
of their privacy rights, then the General Data Protection Regulation is
the appropriate model. Otherwise, a reasonable expectation of privacy
is sucient.
Keywords: California Consumer Privacy Act, General Data Protection Regulation,
Right of Access, Right to Be Forgotten, Right to Portability, Right to Rectication,
Right to Restrict Processing
VI Indonesian Journal of International & Comparative Law 257-85 (April 2019)
258
Buresh
INTRODUCTION
e purpose of this paper is to compare the European approach to pri-
vacy with the American approach to privacy. With the onslaught of
the Internet and electronic communications, including the recent rev-
elations of Edward Snowden and other whistleblowers regarding gov-
ernmental cyber monitoring of emails and cell phone usage, the desire
for privacy has become paramount. is paper attempts to explain the
dierences between the European and American approaches to priva-
cy. is information is valuable because the European Union (“E.U.”)
has a statutory approach to privacy with the passing of the General
Data Protection Regulation (“GDPR”) acknowledging a right to pri-
vacy, whereas the American approach to privacy has classically recog-
nized only a reasonable expectation of privacy. In June 2018, the Cali-
fornia Consumer Privacy Act (“CCPA”) was signed into law where its
implementation would begin in January 2020. e CCPA is signicant
because it addresses the corporate behavior of any organization that
does business in California, thereby making the law extraterritorial,
potentially aecting the major operations of Fortune 500 companies.
e article is organized along the following lines. First, the
international principles of privacy are briey mentioned along with
the domestic principles of privacy contained in the CCPA. Second,
the European approach to privacy is described by giving a European
denition of privacy along with discussing the Google v. Costeja
González case and the GDPR, E.U. Regulation 2016/679 of May 25,
2018. ird, the American approach to privacy is explained, providing
the American denition of privacy and then reviewing the reasonable
expectation of privacy test, the associated case law, and the CCPA.
Fourth, the GDPR is compared to the CCPA, examining the strengths
and weaknesses of both laws by summarizing the problems, outlining
the relationship between privacy and property, and then revisiting the
principles of privacy and the Google v. Costeja González case. e paper
concludes by suggesting that Congress and the courts should consider
adopting the privacy principles in the GDPR and CCPA, thereby
explicitly giving Americans privacy rights regarding their personal
information.

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