In an age where personal data has become a valuable commodity for advertisers and organizations at large, the need for robust data privacy legislation has emerged as a defining issue of our time. The General Data Protection Regulation (GDPR), enacted by the European Union (EU) in 2018, represents a comprehensive framework aimed at safeguarding individuals' privacy rights in the digital world. In contradistinction to the EU, the United States lacks a comprehensive data privacy law applicable to all types of data and domestic companies. Instead, data privacy laws in the U.S. tend to be more fragmentary with various state-level regulations governing different sectors and types of data. In the remarks that follow, I shall provide an overview of data privacy laws in the U.S. and the EU, and then subsequently examine whether the U.S. could adopt the GDPR or a similar federal statute to address the shortcomings of its current data privacy regulations.

The GDPR is the most detailed and rigorous data privacy regulatory regime in the world, applying even to entities outside of the EU provided that such entities collect data of EU citizens and residents. The GDPR governs the acquisition, management, and processing of personal data, and imposes the consent of data subjects as a key requirement. Pursuant to the GDPR, companies may only collect data on citizens or residents of the EU with their explicit, informed consent and they must explain to them in simple terms how their data is being used. The GDPR additionally affords data subjects the right to request copies of their data and to request its permanent deletion. Failure to comply with the GDPR may result in fines of up to the higher of €20 million or 4% of global revenue. The adoption and enforcement of the GDPR testifies to the premium placed on data privacy within the EU.

Although a GDPR-like statute has not been adopted at the federal level in the U.S., many states, inspired by the GDPR, have enacted data privacy laws, such as the California Consumer Protection Act and the Virginia Consumer Data Protection Act. However, the GDPR applies to a wider range of data, such as cookie data, location information, and IP addresses, whereas data privacy laws on this side of the Atlantic protect, in the main, the health and financial information of data subjects.

There are several key constitutional and cultural considerations that may shed light on the different approaches to data privacy regulation adopted respectively by the U.S. and the EU. The EU Charter of Fundamental Rights, for instance, protects data privacy as a fundamental right: "Everyone has the right to respect for his private and family life, his home and his correspondence". However, no equivalent provision is explicitly found in the U.S. Constitution, although some have viewed the Fourth Amendment as providing a basis for the right to data privacy; the substantive due process inferred from the Fifth and Fourteenth Amendments could also serve as such a basis, but its future remains uncertain in the aftermath of the Dobbs decision. This commitment to privacy in the EU has profound historical roots, stemming in part from the abuse of individuals' privacy in the 20th century, particularly in fascist and communist regimes.

A deeper explanation for the discrepancy lies in divergent approaches to the power and scope of government. In the U.S., the default legal order is characterized by an absence of the law, and a greater premium is placed on constraining the power and scope of government, including the federal government. The EU, by contrast, has tended to favor government intervention to a far greater degree, as reflected in the extensive set of social security nets it has in place. In contrast, the U.S. has traditionally taken a more laissez-faire approach that tends to be more favorable to companies that collect and use personal data. In the U.S., there is greater scope for commercial use of personal data, even at the expense of privacy rights. Recent years have seen public opinion shifting gradually towards supporting better protection of personal data as data privacy violations continue to come to the fore, but the underlying cultural differences discussed above continue to pose an impediment to bringing U.S. data privacy laws in alignment with the GDPR.

The question arises as to whether the US would stand to gain from the adoption of a GDPR-like statute. Proponents may argue that the need for such a statute is even more pronounced in America as most Big Tech companies are American. Others may argue that a statute akin to the GDPR would be defective in the U.S. because it is simply too different from the EU in terms of its institutions and values. A statute such as the GDPR is arguably at variance with America's capitalistic ethos. The GDPR’s stringent requirements and its compliance costs, coupled with potential fines for noncompliance, constitute market distortions. As such, so the argument goes, they may prove inimical to the free market competition which lies at the heart of America’s capitalistic economic system. Moreover, small and medium-sized businesses would bear the brunt of such costs, which increases barriers to entry in the market, and thus arguably stifles the competition and innovation on which America places so high a premium.

As data breaches and privacy concerns continue to arise, the U.S. faces increasing pressure to solidify its data privacy regulations. While the adoption of a GDPR-like statute presents challenges owing to cultural, legal, and economic disparities, it also offers an opportunity to enhance individual rights and bolster consumer trust in the digital marketplace. By considering and navigating the complexities inherent in the potential adoption of robust data privacy legislation such as the GDPR, the U.S. can work towards establishing itself as a global leader in safeguarding data privacy rights.