Proceedings of the Polish Association of American Studies Conference
Privacy law in the United States can be characterized as postmodern. It is fragmented and reflects postmodern paradox. This article is particularly concerned with the threats to the freedoms that underlie the right to privacy in the United States caused by this postmodern approach-particularly the lack of comprehensive regulation or protections against violations of privacy. The weaknesses of the United States' fragmented approach are apparent when contrasted to the more comprehensive and centrally-regulated European approach, such as that found in the European Data Privacy Directive.
But one cannot simply state that the United States should borrow the comprehensive European approach. A strong argument can be made that-in light of the dizzying speed of technological change - the marketplace, custom, and common law (rather than statutory or other governmental restrictions) should determine how privacy should be protected. Similarly, the unregulated, free-market approach to privacy protections is arguably another form of freedom that is being protected in the United States. Although at times confusing, the fragmented postmodern tangle of statutory, judicial-made common law, government regulation, and voluntary custom that makes up privacy law is possibly what works best to protect freedom in postmodern America. Indeed, American legal culture and tradition demonstrates a deference to market forces over government regulation. On the other hand, the problem with this free-market approach is that it has left gaping holes in privacy protections under U.S. law. Technological change and fears of terrorism have aggravated this problem even further.
This paper explores whether this freedom in the marketplace is at the expense of the freedoms of privacy of American citizens. It expresses concern about the potential of abuse that can ultimately emerge from the lack of privacy protections engendered by a postmodern, fragmented approach. The countervailing threat to the freedom of average citizens' privacy is too great for the United States not to take a more coherent and comprehensive approach to privacy protections.
Copyright © 2004, Polish Association of American Studies
Polish Association of American Studies
Place of Publication
Todd, Adam, "Fractured Freedoms: The United States’ Postmodern Approach to Protecting Privacy" (2004). School of Law Faculty Publications. 19.