Privacy Rights - How Far Is the U.S. Behind?

On February 23, 2012, the White House announced a Consumer Privacy Bill of Rights to try and steer corporate America down a path of responsibility in safeguarding consumers’ on-line privacy rights. This announcement was largely driven by recent opposition to privacy policy updates by companies such as Google, which are planning updated privacy policies to allow more leniency in tracking users’ computer and mobile device usage, with no method of opting out of the tracking process for the end user.

While this is a step in the right direction, and hopefully a stepping stone towards new privacy protection laws, it is a much lighter step than the European Union is taking. On January 25, 2012, the European Commission proposed comprehensive reform to the European Union’s 1995 data protection rules to strengthen online privacy rights. Key changes are being proposed to modernize the rules that were introduced while the Internet and ecommerce were in their infancy. Some of the ideas being proposed that the U.S. should take note of are:

Greater Empowerment of the Individual

  • A ‘right to be forgotten,’ would help people better manage data-protection risks and to ensure that if they no longer want their data processed and there are no legitimate grounds for retaining it, the data will be deleted;
  • Explicit, rather than assumed, consent would be required for data processing; and
  • Easier access to your own personal data and portability of that data from one service provider to another.

Standardization and Simplification

  • A single set of rules on data protection, valid across the entire European Union, would require notification of serious data breaches without undue delay, where feasible within 24 hours;
  • Enforcement and regulatory efforts would be simplified. Companies would have to deal with only a single national data protection authority based upon their country of location; and 
  • Rules would apply to companies located outside of the European Union that offer goods or services in the European Union or monitor the online behavior of citizens.

The announcement from the White House provided notice that the government is aware of the problem and is taking note, but a standardized and simplified legal framework for the protection of online privacy rights, along with a standardized method of enforcement, still seems a long way away.

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