Comparing Cultures of Cyber Privacy: US v EU

March 12, 2017

I tend to identify myself as being a cyber libertarian. A vast majority of the time I will oppose internet regulation and, especially, speech regulation within cyberspace. I think this is important to state up front as it tells you the kind of lens I viewed both the presentation and the European Union Data Protection Directive from.
The stark contrast between the cultures of the United States and the European Union, in regards to the foundation of each Government’s privacy law, is remarkable. It has been described that the US views privacy as a solution to a certain economic risk problem, as opposed to the EU which approaches privacy as a fundamental right that every citizen maintains. This comparison between the cultures of the two and how they have drastically impacted the formation and evolution of privacy doctrine could make for an interesting presentation on its own. Perhaps the evolution of the EU’s system of privacy law can be uncovered by analyzing the experiences of so many European people. There are still survivors of Nazi Germany and the Holocaust that are residing in Europe, and hundreds of thousands of people still alive that spent many years living in a Communist society. Therefore, a need for privacy has become commonplace so as to avoid the mistakes Europe’s history has displayed. Europeans have been scarred by the Nazi’s being able to you public and church record to identify and locate the Jewish population.[1] “In Europe the first line of defense against private wrongdoing is the state,” said Joel R. Reidenberg, privacy expert at Fordham University School Law School. “In the U.S. our instinct is more liberal: Let private actors sue each other.”[2]
But, on the other hand, why does the US view privacy as it does? Where did this assumption of no privacy protection come from?
The first thought that comes to mind is that the U.S. did not begin to trivialize privacy laws until after the shakeup that the attacks on September 11, 2001 caused in the country. However, I would argue that the trivialization of our privacy rights originate with the attacks on Pearl Harbor. Prior to Pearl Harbor, the U.S. had not endured a tangible foreign attack on American soil since the War of 1812. Within this roughly 130-year timeframe between attacks, the U.S. developed, and probably rightly so, a sense of isolationism. Essentially, we had oceans separating our country from any real threat to our citizens, therefore there is a very limited downside to having liberal privacy laws.
I would argue that after Pearl Harbor, and multiplying during the Cold War, the U.S. began to equate privacy laws as limits on strength of national security. This culminated with the attacks on 9/11 and Government legislation such as the Patriot Act. The phrase “if you have nothing to hide then you have nothing to worry about,” originated from this early 2000s time period, and still echoes today. Personally, this is a terrifying thought. I have long held the belief that (to an extent) I would sacrifice security for freedom. This may sound brash, but any alternative to the fearful state we now exist in is preferable. While this is nice in theory, I do not see any potential way that legislation could err towards a new climate with an emphasis on privacy. Largely because, as soon as the next tragedy occurs, groups can fairly easily make the argument that had the Government not rolled back its security administration, the attack would have never taken place. This is a rational and valid argument, and one that is not easily disputable, especially without coming off as extremely callous about the protection of American citizens.
Another massive issue surrounding the inability and impracticability of the U.S. Government pushing for additional privacy rights for its citizens is money. This could be a fairly straight forward fix – a slightly more liberal interpretation of the Fourth Amendment, disallowing unreasonable search and seizure, could result in an abundance of new privacy rights. The problem is that there are very few lobbyists on Capitol Hill being paid to argue for a broader interpretation of this Amendment. Simply put, the money is not on the side of those seeking more privacy. This allows our current administration to clamp down on privacy laws, with very little momentous opposition. This presentation could not have been more timely, in that sense, considering the Wikileaks documents that have just been recently released illustrating the way several U.S. Governmental agencies maintain the ability to surveil Americans.
Conclusively, it is difficult to envision a future where Americans can regain their privacy laws, perhaps because it is impossible for these rights to return via a quick fix. It is better to think of these privacy laws like turning a battleship rather than a sports car, it will be a long and arduous task in order for this Country’s policies to make a full 180.

[2] Id.