Just 23% of Americans Know the US Has Failed to Pass an Internet-Era Privacy Law
I have performed significant academic and practical work in the privacy space. The US has a fundamentally different (and, frankly, better) approach to privacy compared to the EU.<p>The US tends to view privacy, in general, as freedom from unwelcome perception, often construed as &quot;the right to be let alone&quot;, following Warren and Brandeis. The EU tend to define privacy as a specific type of control, as &quot;control over how your personal information is collected and used.&quot; More recently, the terms &quot;information privacy&quot; or &quot;data privacy&quot; is used to reflect the European approach [1]. I personally detest calling the European approach &quot;privacy&quot; in any manner; it&#x27;s just data control, plain and simple.<p>Freedom and control are both related to the expression of free will, yet their outcomes are quite different. These two approaches to &quot;privacy&quot; are fundamentally divergent from each other. That being said, a freedom-loving nation must use government to exercise some forms of control. This tension between freedom and control is behind so many conflicts in the world, though I believe it is most pronounced with the issue of privacy, perhaps moreso than even with security.<p>The US government, serving a nation historically oriented toward the maximization of personal liberty, decided that providing strict, well-defined controls on certain types of information is better than not. As a result, three primary FEDERAL data control laws have been enacted: FERPA (educational data), HIPAA (health data), and COPPA (children&#x27;s Internet data). In addition, some states have passed data control laws, such as California&#x27;s CCPA. However, the US Constitution provides extremely robust &quot;privacy protections&quot; which do not explicitly refer to privacy, most directly so with the 3rd, 4th, and 5th Amendments, while the 1st, 9th, and 10th are more indirect.<p>The EU, on the other hand, appears to place control as a value of higher importance. As such, they passed the GDPR, though EU-US agreements like Safe Harbor and Privacy Shield attempted to accomplish similar goals in more modest terms. The GDPR is massively complex. I know at least one privacy scholar who believes that machine learning may no longer be viable in the EU because of the GDPR&#x27;s data reuse provisions. If a data controller needs to get permission from the data producer every time that information is used as part of a machine learning process, ML research may become too burdensome.<p>Now, some European governments state that their citizens &quot;have a right to privacy.&quot; This situation highlights the difference between a positive and negative right, which I argue is a meaningful distinction (though not all agree).<p>For example, the US Constitution generally provides rights to citizens in the negative form, such as, &quot;Congress shall make no law...abridging the freedom of speech&quot;. A positive form of that same right is Article 35 of the PRC Constitution, which is: &quot;Citizens of the People&#x27;s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration&quot; [2]. In the former case, the nation ultimately defines what &quot;freedom of speech&quot; means; in the latter case, the government ultimately defines the meaning of &quot;freedom of speech.&quot; Granted, not everyone agrees with this interpretation, but I believe history generally shows this to be true.<p>So, the question is, is a European, positive-right formulation of privacy better for the nation or the government? I argue the government. For these reasons, I cannot stress enough the importance of grasping the difference between the US and EU approaches to &quot;privacy&quot;.<p>[1] <a href="https:&#x2F;&#x2F;iapp.org&#x2F;about&#x2F;what-is-privacy&#x2F;" rel="nofollow noreferrer">https:&#x2F;&#x2F;iapp.org&#x2F;about&#x2F;what-is-privacy&#x2F;</a><p>[2] <a href="https:&#x2F;&#x2F;constituteproject.org&#x2F;constitution&#x2F;China_2018" rel="nofollow noreferrer">https:&#x2F;&#x2F;constituteproject.org&#x2F;constitution&#x2F;China_2018</a>