The difference between European and American regulation of marketplace privacy is well-established: information privacy is protected more under European law than American law. Recently, with the revelation of a number of U.S. government, anti-terrorism programs, it has become clear that the transatlantic difference is not limited to the market. Also in the face of government action, Europeans protect information privacy more than Americans. This paper brings to light the legal differences between the two systems by considering the case - real in the United States, hypothetical in Europe - of a spy agency's database of call records, created for the purpose of identifying potential terrorists. The paper explains that, under American law, such an anti-terrorism database might very well be legal, and that, under European law, such an anti-terrorism database would clearly be illegal. It then reviews the barriers to transatlantic cooperation on fighting terrorism that have been created by the legal difference. The paper also considers the reasons for this transatlantic difference - surprising in view of the common wisdom that Americans are more suspicious of government interferences with individual liberty than Europeans. The paper concludes with a few recommendations for the reform of American information privacy law, principal among them being the establishment of an independent privacy agency.
Francesca Bignami, European Versus American Liberty: A Comparative Privacy Analysis of Anti-Terrorism Data-Mining, 48 B.C. L. Rev. 609 (2007).