Peter Hustinx and Three Clichés About E.U.-U.S. Data Privacy

This essay is in honor of the retirement of Peter Hustinx, who served as the first European Data Protection Supervisor, from 2004-2014. The essay suggests that key themes in Hustinx’ career show a surprising and deep similarity between the legal cultures of the United States and the European Union in the area of privacy and data protection, in contrast to the differences that often are emphasized. Hustinx has been a major figure in the development of the European data protection regime, as well as the trans-Atlantic engagement with the United States. The career of Peter Hustinx reveals flaws in three clichés about the contrast between U.S. and E.U. approaches to privacy and data protection: (1) Europe believes in fundamental rights to data privacy, but the U.S. legal tradition is different; (2) Europe is concerned about privacy invasions by big corporations, while the U.S. cares instead about privacy invasions by big government; and (3) Europe believes in comprehensive legislation while the U.S. supports self-regulation and multi-stakeholder processes. Contrary to these clichés, Peter’s work has shown, first, the U.S. roots of fundamental rights to data privacy. The U.S. Constitution contains the Fourth Amendment and other fundamental protections of individual liberty and privacy. The right to privacy was famously elaborated by Brandeis and Warren. As Hustinx entered the data protection debates, he was familiar with the 1977 U.S. Privacy Protection Study Commission, the emphasis on fundamental rights championed by President Jimmy Carter, and the proclamation of fundamental human rights in privacy in the 1980 OECD Guidelines, developed with leadership by the US government. Second, Hustinx’ work shows a life-long commitment to addressing privacy invasions by the public sector. He has been a leader in developing a considerable body of European data protection law to govern public-sector databases, and the influence of these developments is likely to grow in coming years. Third, Hustinx has shown longstanding support for industry codes of conduct and multi-stakeholder processes, both in his role as the Dutch data protection supervisor and in his European role. In conclusion, Peter Hustinx was trained in the legal cultures on both sides of the Atlantic, and has brought the virtues of both cultures to his lifetime of leadership in the protection of individual privacy