Privacy and Data Protection by Rules Rather than Principles

Abstract

There is hardly any field of the law that has more diversity on both sides of the Atlantic than privacy and data protection. Common opinion often reduces that diversity to a matter of "strong" protection in Europe versus "weak" protection in the United States of America. Discussions about Safe Harbor and Privacy Shield regulation reinforce this perception. This paper, however, argues that the privacy divide is hardly a matter of strong or weak protection, but has deeper roots in different approaches to constitutional rights. While Europe, following the lead of the German Federal Constitutional Court, conceptualizes legal precepts about privacy and data protection as principles with a broad protective scope that result in balancing procedures, the protection in the U.S. is rule based. This results in a more rigid system with stronger emphasis on the legislatures of the states rather than flexible adjudication by the courts.