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The Role of the Epistemic Community in Influencing Privacy Legislation: the United States and the European Union

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The Role of the Epistemic Community in Influencing Privacy Legislation: the United States and the European Union University of Denver Digital Commons @ DU Electronic Theses and Dissertations Graduate Studies 1-1-2010 The Role of the Epistemic Community in Influencing Privacy Legislation: The United States and the European Union George Edward Richie University of Denver Follow this and additional works at: https://digitalcommons.du.edu/etd Part of the Other International and Area Studies Commons Recommended Citation Richie, George Edward, "The Role of the Epistemic Community in Influencing Privacy Legislation: The United States and the European Union" (2010). Electronic Theses and Dissertations. 550. https://digitalcommons.du.edu/etd/550 This Dissertation is brought to you for free and open access by the Graduate Studies at Digital Commons @ DU. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. THE ROLE OF THE EPISTEMIC COMMUNITY IN INFLUENCING PRIVACY LEGISLATION: THE UNITED STATES AND THE EUROPEAN UNION _________ A Dissertation Presented to The Faculty of the Josef Korbel School of International Studies University of Denver __________ In Partial Fulfillment Of the Requirements for the Degree Doctor of Philosophy __________ by George E. Richie November 2010 Advisor: Dr. Joseph Szyliowicz Copyright © 2010 by George Edward Richie All Rights Reserved Author: George E. Richie Title: THE ROLE OF THE EPISTEMIC COMMUNITY IN INFLUENCING PRIVACY LEGISLATION: THE UNITED STATES AND THE EUROPEAN UNION Advisor: Dr. Joseph Szyliowicz Degree Date: November 2010 ABSTRACT Threats to individual privacy from computer information, database, and surveillance technologies of the mid-20th century prompted the formation of a privacy epistemic community that informed and influenced privacy policy and legislation in the United States and the European Union. Because the United States was more advanced in computer technology than the European nations, awareness of privacy issues, and the privacy epistemic community, emerged first in the United States---and migrated to Europe a generation later. The United States legislated the Privacy Act of 1974, which became the benchmark for individual privacy protection in the United States. While several European nations passed privacy legislation in the 1970s, there was no common privacy policy and law among European nations. In the early 1970s, the Council of Europe (CoE) and the Organization for Economic Cooperation and Development (OECD) created privacy data-protection committees that became important networking organizations for privacy epistemic community experts from the United States, European nations, and other OECD member nations. The influence of the trans-Atlantic privacy data-protection epistemic community can be seen in the similarities among the Fair Information Principles/Practices (FIP) found in privacy studies, guidelines, conventions, and laws in the U.S., the CoE, the OECD, and the European nations. ii Two case studies describe the role and influence of the privacy data-protection epistemic community members in influencing privacy studies, policy, and legislation in the United States and Europe. The United States enacted narrow “sectoral” legislation to protect individual privacy from government computers and databases in the Privacy Act of 1974. More than two decades later, the European Union enacted broad “omnibus” data-protection legislation that effectively limits the collection and aggregation of personal data on EU citizens. Why two such dramatically different privacy data- protection laws could have been enacted when influenced by the same privacy data- protection epistemic community leads to analysis of economic, socio-cultural, and political influences on privacy data-protection legislation. Evidence suggests that privacy data-protection epistemic community influence, filtered through different socio-cultural visions of the relationship of the government and the citizen, lead to dramatically different privacy data-protection legislative results. iii ACKNOWLEDGEMENTS To my wife, Linda, and my children, George, Geoffrey, Jessica, and Amanda, who supported and encouraged me in the writing of this dissertation. iv Table of Contents List of Tables . viii List of Figures . ix Chapter One Introduction and Overview . 1 Introduction . 1 Purpose of Study . 3 Limitations, Research Questions, and Approach . 4 Three Research Questions . 5 Key Concepts and Definitions . 6 Epistemic Community as Independent Variable Intervening Variables Privacy as Dependent Variable Study Overview . 11 Chapter Summary . 17 Chapter Two The Concept of Privacy . 22 Antecedents of American Privacy Concepts . 24 Colonial Era Privacy . 28 Privacy at the Founding of the Nation . 34 Concept of Privacy in the 19th Century . 36 Growth of Concern Over Newspapers and Privacy . 41 The Concept of Privacy From 1890 to 1965 . 44 Privacy After 1965 . 51 Chapter Summary . 55 Chapter Three The Epistemic Community . 66 Origins of the Epistemic Community Concept . 69 The Nature of the Epistemic Community . 73 Limitations of the Epistemic Community Approach . 74 The Influence of the Epistemic Community . 78 The Life-Cycle of Epistemic Communities . 82 Institutionalizing the Epistemic Community . 84 Self-Aware Epistemic Community . 85 The Global Privacy Epistemic Community . 87 Operationalizing the Identification of the Epistemic Community . 88 Identifying the Privacy Epistemic Community . 89 Chapter Summary . 92 v Chapter Four The Privacy Epistemic Community and the United States Privacy Act of 1974: A Case Study . 101 Introduction . 101 Genesis of the Privacy Epistemic Community . 102 The Path From Security to Privacy The Nascent Privacy Epistemic Community Dr. Willis H. Ware and the Rand Corporation . 105 Privacy Awareness in the United States . 106 The National Data Bank and Congressional Privacy Hearings Congressional Hearings and the Privacy Epistemic Community . 108 Databanks in a Free Society Project . 113 HEW Secretary’s Advisory Committee on Automated Personal Data Systems . 114 The Privacy Act of 1974 . 117 Opposition to Privacy Legislation . 118 Privacy Act Expectations . 121 Chapter Summary . 125 Chapter Five The Privacy Epistemic Community and the Legislation of Data Protection in the European Union: A Case Study . 133 Introduction . 133 Response to the Privacy Threat . 135 Germany Sweden United Kingdom The Council of Europe The Organization for Economic Cooperation and Development The European Union Data Protection Directive of 1995 . 156 Chapter Summary . 164 Chapter Six Analysis and Conclusion . 175 Introduction . 175 Evidence Addressing the First Research Question . 176 Recognized Professional/Technical Expertise in Privacy Issues Privacy Publications National and International Organizations with a Privacy Component Privacy Websites on the Internet Privacy Conferences Participation in Government Hearings, Studies, Testimony Evidence Addressing the Second Research Question . 181 Fair Information Practices . 183 vi Evidence Addressing the Third Research Question . 185 A Framework for Analysis Intervening Variables in the Public Policy Process . 186 Evidence of Economic Intervening Variables . 188 Economic Impact of the U.S. Privacy Act of 1974 Economic Aspects of EU Data Protection Directive Evidence of Socio-Cultural Intervening Variables . 190 Evidence of Political Intervening Variables . 194 Evidence of Political Factors in the United States Evidence of Political Factors in the European Union Influence of the Three Intervening Variables . 197 Implications for Further Research . 199 Conclusion . 200 Bibliography . 210 Appendices . 254 Appendix A . 254 Appendix B . 277 Appendix C . 280 Appendix D . 283 vii List of Tables Table 6.1: Fair Information Practices/Principles (FIP) Sources . 184 viii List of Figures Figure 1.1: The Theoretical Model . 7 Figure 6.1: A Framework for Analysis . 186 ix Chapter One Introduction and Overview “In reality, a society devoid of individual privacy makes the very basis of democracy---individualism---difficult to attain. An individual who is constantly under surveillance, or one who knows that at any time he may be observed, will limit his external conduct to prescribed standards of safe conformity. Internally, if there is no outlet for one’s own individualistic tendencies, the mind comes to fit into a conformist mold much the same as one’s external actions. An absence of privacy is crucial for totalitarian government to subsist.”1 R. H. Clark, Historical Antecedents of the Constitutional Right of Privacy Introduction Public awareness and concern for “privacy” of the individual have dramatically increased across the developed world over the past century.2 With each generation, new privacy issues and topics have emerged in response to ever-new dimensions of the creation, accumulation, and distribution of information. Although concerns for privacy can be found in some of civilization’s oldest documents and stories, privacy in law was distinctly a development of late 19th century American society. While several amendments to the Constitution of the United States did enshrine basic common law concepts of individual privacy, it was not until the last half of the 19th century that individual privacy became a public concern and gained permanent stature in law.3 Scholars note a direct correlation between the development of new technologies and the growing threat to the privacy of the individual over the past one and one-half 1 centuries.4 Initial realization in the United States of the threat of technology to individual privacy came with the newspaper, the telegraph, the box camera, and the telephone. These were the technologies that facilitated the privacy interlopers of which Samuel Warren and Louis Brandeis famously complained in The Right to Privacy in 1890.5 Their Harvard Law Review essay created a new area of law, and almost immediately privacy found a new traction in law journals, the courts, and journalism. For the next half- century, privacy law slowly expanded in scope based largely upon the insights of Warren and Brandeis. However, after.
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