Privacy Protection: When Is "Adequate" Actually Adequate?

By Palekar, Nikhil S. | Duke Journal of Comparative & International Law, Spring 2008 | Go to article overview

Privacy Protection: When Is "Adequate" Actually Adequate?


Palekar, Nikhil S., Duke Journal of Comparative & International Law


INTRODUCTION

Notice has been referred to as an essential element of privacy when dealing with the sharing and dissemination of personal information, but because websites are not always required to provide individuals with notice of their privacy policies, notice is oftentimes overlooked or disregarded. The European Union and United States approach data privacy and the protection of personal information very differently, which creates tension when considering the adequacy of privacy protection for information transferred between the two regions.

The European Union values privacy as a fundamental right, and the protection of private personal information, which includes Internet Protocol (IP) and cookie information insofar as it can be linked with a natural person, is paramount. Accordingly, the European Union utilizes a rigorous and comprehensive approach toward privacy protection where data collection entities are required to carefully safeguard individuals' personal information. (1) Consequently, while there is no selective enforcement of standard privacy policies and practices in the European Union, this blanket approach may lack the flexibility to adapt privacy standards to particular industries.

The United States generally follows a market-dominated approach that provides limited statutory rights regarding information privacy. (2) Instead, self-regulation of industries prevails as a common method of data privacy protection, and the few privacy laws that do exist do not cover many companies that interact with consumers via the Internet. (3) Although there are exceptions, most e-commerce operations are left with self-regulation, which has produced privacy protection that varies substantially between economic sectors. (4)

Safe Harbor provisions designed to bridge the gap between U.S. and E.U. privacy protection schemes allow organizations in the United States to have a presumption of adequate privacy protection if the organization undertakes certain compliance measures under the Safe Harbor provisions, and the Federal Trade Commission (FTC) enforces such compliance in the United States. Trans-border data transfers generally remain unimpeded by the differing standards, but this arrangement seems to establish actual privacy protection more in form than function because companies collecting information in the United States are still operating under a self-regulatory system with insignificant enforcement of actual privacy protection. One of the central problems is that consumers still do not receive adequate notice of privacy and information policies, even though the Safe Harbor prescribes certain practices with regard to notice. Notice is of great concern because consumers should have the opportunity to provide meaningful consent to information practices before they provide their information. (5) Addressing the problem of notice through constructive policies will lessen the disparity between the territories and potentially eliminate the necessity for overarching legislation or regulation to provide adequate protection for personal data transferred between the European Union and United States.

This paper explores the differences in approach to privacy law particularly with regard to the function of notice in online privacy policies. First, it provides overviews of E.U. and U.S. privacy provisions and current practices. Second, it provides a comparative analysis of the adequacy of notice in real-world situations based on the E.U. and U.S. privacy provisions. Finally, this paper demonstrates how modifications to the U.S. system could provide for increased homogeneity in privacy practices without abandoning the self-regulatory regime already in place.

I. EUROPEAN PRIVACY LAW

A. History of European Privacy Law

The Council of Europe Convention on Human Rights of 1950 established the European right to privacy. (6) After countless human rights abuses experienced throughout Europe at the hands of the Nazis, it is not surprising that the Council of Europe quickly engaged in such measures to establish privacy rights in the years following the conflict. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Privacy Protection: When Is "Adequate" Actually Adequate?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.