As Congress struggles to catch up to the European Union’s comprehensive data privacy regulations, some US states have begun to forge their own robust legislation to increase user protection. But this system only protects the data of some Americans, leaving more than half the country without guaranteed data protection or privacy rights.
And it may take years before a national solution is created, if at all.
The EU took its first step towards providing sweeping privacy protection years ago, with the creation of the region’s General Data Protection Regulation (GDPR).
The GDPR, which took effect in 2018 and gives individuals ownership over their personal information and the right to control who can use it, is often marked as the first major, multinational step towards comprehensive data protection and privacy.
Traditionally, the EU’s approach to data privacy stems from a human rights standpoint and has its roots in World War II, when the Nazi party collected personal data to commit numerous atrocities and, later, when the East German secret police, the Stasi, carried out invasive state surveillance.
After the war ended, the right to privacy was enshrined in the European Convention on Human Rights and later in the EU Charter of Fundamental Rights, becoming the ideological foundation on which data privacy laws have been built in the EU today.
Across the Atlantic, the US Constitution does not explicitly provide a right to privacy.
Rather than enacting a comprehensive federal law, the US federal government has taken a reactive approach, passing legislation only after issues arise in a few specific business sectors, which has resulted in a series of data protection laws addressing specific types of data. For example, the Health Insurance Portability and Accountability Act (HIPAA) and the Gramm-Leach-Bliley Act (GLBA) have protected medical and financial data respectively since the 1990s.
“The US is very much an innovation, capital-first society,” said Jodi Daniels, founder and CEO of privacy consultancy firm Red Clover Advisors. “And they do want to protect the people, but it has to all get balanced.”
But in recent years, some lawmakers have begun to push back against this system by introducing comprehensive data privacy bills, like the bipartisan American Privacy Rights Act (APRA).
Introduced in April by Sen. Maria Cantwell (D-WA) and Rep. Cathy McMorris Rodgers (R-WA), APRA is like GDPR in that it is not limited to specific business sectors and aims to minimize the amount and types of data companies can collect, give consumers control over their information, and allow them to opt out of targeted advertising.
While the legislation didn’t get very far, stalling in the House Committee on Energy and Commerce, it’s the furthest any comprehensive privacy bill has gone in Congress yet. To become law, however, it would have to be reintroduced next year when Republicans control both chambers.
Some lawmakers, like Sen. Ted Cruz (R-TX), contend that APRA is more concerned with “controlling the internet” than creating a balance between innovation and privacy protection, and argue that the current right to private action present in the act, which allows individuals to pursue legal action if their privacy is violated, will give overwhelming power to trial lawyers.
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