Legacy of the Holocaust?
Some privacy experts argue that heightened European sensitivity to privacy stems from the horror of the Holocaust, when the Nazis used public and church records to identify Jews to be rounded up and sent to concentration camps. But others say the historical difference dates back much further – to Dumas, or even earlier, and the notion that governments are charged with actively protecting people.

“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.”

These differences are more than theoretical, and several times have threatened to trigger trade and culture wars:

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A post-Sept. 11 data sharing agreement that provided U.S. authorities with 34 pieces of information on each airline passenger entering the country on flights from Europe was ruled illegal earlier this year by the European Supreme Court. The dispute threatened to ground all flights into the U.S. from Europe until the U.S. Department of Homeland Security and the European Union announced a settlement on Oct. 6.
In June, the New York Times revealed that U.S. anti-terrorism officials are mining data from the Belgium-based Society for Worldwide Interbank Financial Telecommunications (SWIFT), which regulates most international banking transactions. Belgian officials opened an immediate investigation. Such data mining would be considered illegal under Belgian law.
In the late 1990s, e-commerce between Europe and the U.S. almost came to a halt after the EU’s Data Protection Directive barred transfer of data to countries without comprehensive privacy protection laws. By EU standards, the U.S. falls far short of the requirements. Two years of negotiations ended in a "safe harbor" agreement promising privacy controls on EU data that flows into the U.S. Complaints about the system persist, however, from both sides.

Market efficiency vs. dignity
U.S. firms criticize the European limitations on data gathering, saying that regulations enforcing them are cumbersome and put Europe at a competitive disadvantage.

For example, only debtors who've defaulted on loans generally receive the European equivalent of a credit report, which places them on a sort of lending black list. Consumers who pay their bills on time do not get a “good” credit score.

Critics say that's a disadvantage because credit reports make consumer lending much safer for lenders, thereby reducing the cost of credit and increasing consumers' ability to borrow.

But defenders of the European system point to places like the U.K. and Ireland, where there's little evidence that access to mortgage loans is limited.

But there is a larger notion at stake than availability of credit. In Europe, the laws tend to protect consumers from unnecessary public humiliation at the hands of corporations.

“The basic issue is … not just one of market efficiency. Consumers need more than credit. They need dignity,” writes Whitman, explaining the prevailing European thought. “The idea that any random merchant might have access to the ‘image’ of your financial history is simply too intuitively distasteful to people brought up in the Continental world.”

In U.S., home is where the privacy is
In stark contrast, U.S. privacy is squarely equated with liberty from a prying government.

The word privacy does not appear in the Constitution, but it is has been constructed by legal scholars using elements of the Bill of Rights, such as the Fourth Amendment – which bans unreasonable search and seizure. U.S. residents cherish the right to be left alone in their homes, and courts have generally been supportive of this right. However, once a person leaves the home — physically or virtually — the right to privacy quickly dissipates.

In much of Europe, allowing employers to read employee e-mails would be considered an attack on dignity — much like the publication of Dumas’ risqué photographs.

In October 2001, for instance a French court ruled that Nikon France could not fire an employee for performing freelance work on the job because the incriminating e-mails were marked “personal,” and thus could not be used as grounds for dismissal.

In the U.S., employees surrender most of their rights to privacy when they enter and use company property.

European and U.S. laws also diverge widely on limiting press freedoms, with U.S. courts granting wide leeway over publication, even of intimate photographs and personal details.

Whitman sites this dramatic distinction as an example:

In 1985, a gay man successfully sued a French publication to prevent publication of a photo of him at a gay pride parade in Paris. A few years earlier, the California Supreme Court upheld the right of journalists to identify San Francisco resident Oliver Sipple as a homosexual after Sipple helped foil an assassination attempt on then-President Gerald Ford. Sipple was declared a public figure by the court, and thus surrendered much of his privacy rights. The hero, who had hidden his sexual orientation from his Midwestern family, ultimately committed suicide.

CONTINUED: PIECEMEAL APPROACH VS. COMPREHENSIVE LAW

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