Data Protection in the United States:
U.S. National Report
Shawn Marie Boyne
1 General Data Protection Framework
1.1 Introduction
The United States follows a sectoral approach to data privacy protection. There is no
all-encompassing federal legislation that ensures the privacy and protection of
personal data. Instead, legislation at the federal level primarily protects data within
sector-specific contexts. In contrast to Europe’s comprehensive Data Protection
Directive, the United States relies on a combination of legislation at the federal
and state levels, administrative regulations, as well as industry specific selfregulation guidelines. Privacy protection guarantees are sector specific and are
located in a myriad of legislative instruments and case law. These statutes apply
only to specific sectors such as “healthcare, education, communications, and financial services or, in the case of online data collection, to children”.
1 Although, at first
glance, comparative legal scholars are likely to dismiss America’s privacy protection
framework as less robust than the European approach, in some respects, the American framework provides greater protection than in Europe.
2
S. M. Boyne (*)
Indiana University, Robert H. McKinney School of Law, Indianapolis, IN, USA
e-mail: smboyne@iupui.edu
1 Terry (2017), pp. 19–27 at 21.
2 Swire and Kennedy-Mayo (2017), pp. 617 and 642. Swire and Kennedy-Mayo argue that
U.S. protections are stricter in seven ways:
1) oversight of searches by independent judicial officers; (2) probable cause of a crime as a
relatively strict requirement for both physical and digital searches; (3) even stricter requirements for government use of telephone wiretaps and other real-time interception; (4) the
exclusionary rule, preventing prosecutors’ use of evidence that was illegally obtained, is
© Springer Nature Switzerland AG 2020
D. Moura Vicente, S. de Vasconcelos Casimiro (eds.), Data Protection in the
Internet, Ius Comparatum – Global Studies in Comparative Law 38,
https://doi.org/10.1007/978-3-030-28049-9_17
409
U.S. National Report
Shawn Marie Boyne
1 General Data Protection Framework
1.1 Introduction
The United States follows a sectoral approach to data privacy protection. There is no
all-encompassing federal legislation that ensures the privacy and protection of
personal data. Instead, legislation at the federal level primarily protects data within
sector-specific contexts. In contrast to Europe’s comprehensive Data Protection
Directive, the United States relies on a combination of legislation at the federal
and state levels, administrative regulations, as well as industry specific selfregulation guidelines. Privacy protection guarantees are sector specific and are
located in a myriad of legislative instruments and case law. These statutes apply
only to specific sectors such as “healthcare, education, communications, and financial services or, in the case of online data collection, to children”.
1 Although, at first
glance, comparative legal scholars are likely to dismiss America’s privacy protection
framework as less robust than the European approach, in some respects, the American framework provides greater protection than in Europe.
2
S. M. Boyne (*)
Indiana University, Robert H. McKinney School of Law, Indianapolis, IN, USA
e-mail: smboyne@iupui.edu
1 Terry (2017), pp. 19–27 at 21.
2 Swire and Kennedy-Mayo (2017), pp. 617 and 642. Swire and Kennedy-Mayo argue that
U.S. protections are stricter in seven ways:
1) oversight of searches by independent judicial officers; (2) probable cause of a crime as a
relatively strict requirement for both physical and digital searches; (3) even stricter requirements for government use of telephone wiretaps and other real-time interception; (4) the
exclusionary rule, preventing prosecutors’ use of evidence that was illegally obtained, is
© Springer Nature Switzerland AG 2020
D. Moura Vicente, S. de Vasconcelos Casimiro (eds.), Data Protection in the
Internet, Ius Comparatum – Global Studies in Comparative Law 38,
https://doi.org/10.1007/978-3-030-28049-9_17
409