Keith Mack
The European Union's General Data Protection Regulation (GDPR) has set a high bar for privacy protection worldwide. While the US data privacy landscape has increasingly aligned with the EU's approach, there remain significant differences between the two. Notably, the US has traditionally taken a more hands-off approach, favouring companies that collect and use personal data, while the EU adopts a privacy-first mindset, treating data protection as a fundamental right. This difference in philosophy leads to variations in how each region regulates the collection, storage, and processing of personal data. The US, for instance, defaults to an `opt-out` approach, while the EU often requires an opt-in model with a valid legal basis. Furthermore, the US treats data protection as intellectual property, influencing privacy models, while the EU's fundamental rights model considers data protection rights as free for all. These contrasting approaches to privacy and data security have implications for businesses and individuals, requiring careful navigation of the complex data economy.
| Characteristics | Values |
|---|---|
| Scope | The EU has comprehensive overarching legislation that applies to all types of data and companies. |
| The US lacks a single governing data protection law and takes a fragmented, sector-by-sector approach. | |
| Approach | The EU takes a top-down approach, balancing intergovernmental and supranational policies. |
| The US takes a bottom-up approach, reflecting states' rights in governing. | |
| Privacy Approach | The EU adopts a protective privacy approach, requiring an opt-in model for data processing. |
| The US defaults to an opt-out approach, with privacy often being available only to those with the resources to defend it. | |
| Data Ownership | The EU's fundamental rights model states that data protection rights should be free to all. |
| The US views data ownership as intellectual property. | |
| Enforcement | The GDPR is enforced by national data protection authorities of EU member states, with fines of up to 4% of global annual turnover. |
| In the US, federal laws are enforced through bodies like the Federal Communications Commission, American Civil Liberties Union, and Electronic Frontier Foundation. | |
| Applicable Laws | EU: GDPR |
| US: CCPA, HIPAA, COPPA, FERPA, etc. |
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What You'll Learn
US state privacy laws vs. the EU's GDPR
The EU's General Data Protection Regulation (GDPR) is considered the gold standard for privacy law. It applies to any entity processing personal data in the context of activities of an "establishment" in the EU or processing personal data of EU individuals related to offering goods and services to them or monitoring their behaviour. There is no revenue, processing, or broker threshold. Non-compliance can result in administrative fines of up to €20 million or 4% of total worldwide annual turnover.
US privacy laws, which vary by state, are often compared to the GDPR. The most comparable is the California Consumer Privacy Act (CCPA), which came into effect in 2018 and applies to entities that "do business" in California with annual gross revenues greater than $25 million. The CCPA focuses on restricting how service providers use personal information, including a commitment to only use personal information for specified business purposes and not to "sell" or "share" it.
Other US state privacy laws include the Colorado Privacy Act (CPA), the Virginia Consumer Data Protection Act (VCDA), the Connecticut Data Privacy Act (CDPA), the Utah Consumer Privacy Act (UCPA), and the Indiana Data Privacy Law. These laws share some obligations with the GDPR, such as the principles of data minimisation and purpose limitation, and prohibiting discrimination against individuals exercising their privacy rights.
However, a key difference is that the GDPR follows an "opt-in" model, where organisations cannot use personal data without a lawful reason such as consent, while US laws generally follow an "opt-out" model, allowing organisations to use data unless the individual objects. Another difference is in the transfer of personal data to third countries; the GDPR prohibits this unless the country has adequate privacy protections, while US laws have no such restrictions.
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US federal vs. state laws
US federal and state privacy laws are complex and constantly evolving, with state laws often serving as equivalents to the EU's GDPR in the absence of comprehensive federal legislation. While the US data privacy landscape has shifted towards the EU's holistic approach, it still lacks a unified privacy law, instead relying on a fragmented sectoral approach.
US Federal Laws
US federal privacy laws are a mix of sectoral rules that govern specific types of data or populations. Examples include:
- HIPAA (Health Insurance Portability and Accountability Act) – Protects sensitive patient healthcare information.
- FCRA, FERPA, GLBA, ECPA, COPPA, and VPPA.
The Federal Trade Commission (FTC) is the principal enforcer of these laws and has taken action against companies misleading consumers about their data practices. However, federal laws do not always require companies to notify individuals if their data is breached or shared with third parties, leaving consumers vulnerable.
US State Laws
State privacy laws have emerged to fill the gap left by federal legislation, providing stronger protection of personal data and transparency. As of 2022, five states—Utah, Colorado, Virginia, Connecticut, and California—have consumer privacy laws, with more states considering similar legislation.
State laws vary in scope and coverage, with some applying only to specific industries or data types. For example, California's CCPA applies to entities with annual gross revenues above $25 million, while Maryland's law mandates a physical presence in the state.
While state laws enhance privacy protection, the lack of uniformity can confuse companies and consumers. A comprehensive federal law is needed to ensure consistent rights and expectations regarding data privacy across the nation.
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Fragmented vs. comprehensive approach
The European Union's General Data Protection Regulation (GDPR) is a comprehensive data privacy law that applies to any entity processing personal data in the context of activities of an "establishment" in the EU, or personal data of EU residents related to offering goods and services to them. The EU has made data protection a high priority, with a top-down approach balancing intergovernmental and supranational policies.
GDPR defines personal data as any information relating to an identified or identifiable natural person in the EU. It is structured according to seven principles, including lawfulness, fairness, and transparency of personal data, with controls over cross-border data transfers and citizens' rights to have their data deleted.
In contrast, the United States lacks a single, comprehensive governing data protection law like the GDPR. Instead, it takes a fragmented, bottom-up approach, reflecting states' rights in governing, with various regulations governing different sectors and types of data. While federal law has yet to address data security and processing comprehensively, state laws serve as GDPR equivalents in the US.
For example, the California Consumer Privacy Act (CCPA), passed in 2018, was the first dedicated state privacy law in the US, with similar data protection regulations to the GDPR, though on a more limited scale. The CCPA specifically addresses and protects personal information reasonably linkable to a consumer in California, unlike the GDPR, which protects any data subjects living in the EU.
Other US state privacy laws include the Virginia Consumer Data Protection Act (VCDPA), the Colorado Privacy Act (CPA), the Connecticut Data Privacy Act (CDPA), and the Utah Consumer Privacy Act (UCPA). These laws vary in their requirements and approaches to targeted advertising, with some states adopting an opt-in model similar to the GDPR, while others default to an opt-out approach.
While the US is moving towards stronger data protection, its approach remains fragmented, with sector-specific regulations from bodies like the Federal Trade Commission and laws like the Health Insurance Portability and Accountability Act (HIPAA) protecting specific types of data.
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Consumer privacy laws in the US
The US data privacy framework underwent a notable shift in 2019 with the introduction of the California Consumer Privacy Act (CCPA), which established robust privacy protections for California residents. This state-level legislation emerged as a response to the lack of comprehensive federal legislation and set a precedent for other states to follow.
As of 2025, 20 states have enacted comprehensive consumer data privacy laws, including California, Virginia, Colorado, Connecticut, Utah, Iowa, Indiana, Tennessee, Texas, Florida, Montana, Oregon, Delaware, New Hampshire, New Jersey, Kentucky, Nebraska, Rhode Island, Minnesota, and Maryland. These laws aim to safeguard consumers' personal information and grant them rights, such as the ability to opt out of data sales and targeted advertising.
While the CCPA is the most comparable US law to the EU's GDPR, it differs in scope and applicability. The CCPA specifically addresses the personal information of California residents, while the GDPR protects any data subjects residing in the EU, including US citizens. Additionally, the CCPA applies to entities that meet specific annual gross revenue thresholds, whereas the GDPR has no such limitations.
The US's sectoral approach to privacy laws includes regulations like the Health Insurance Portability and Accountability Act (HIPAA), which safeguards sensitive patient healthcare information. This fragmented approach has drawn criticism for lacking a unified privacy-first strategy, prompting updates to align with evolving global standards and consumer expectations.
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Privacy as a fundamental human right
Privacy is a fundamental human right that is closely linked to data protection. This right is enshrined in various international treaties, including the Universal Declaration of Human Rights (Article 12), the International Covenant on Civil and Political Rights (Article 17), the European Convention of Human Rights (Article 8), and the European Charter of Fundamental Rights (Article 7). These documents recognise the importance of protecting individuals' privacy and personal data from arbitrary interference and unlawful attacks.
In the European Union, privacy and data protection are considered vital components of a sustainable democracy and are protected under the General Data Protection Regulation (GDPR). Introduced in 2018, the GDPR sets a high bar for privacy protection, applying to organisations that collect, store, or hold personal data belonging to EU residents. It defines personal data broadly as any information relating to an identified or identifiable natural person. The EU also recognises human dignity as an absolute fundamental right, with privacy playing a pivotal role in this notion.
In the United States, there is no comprehensive federal law equivalent to the GDPR. Instead, data protection is governed by a fragmented set of regulations that apply to specific sectors and types of data, such as the Health Insurance Portability and Accountability Act (HIPAA), which protects sensitive patient healthcare information. However, some states have implemented their own consumer privacy laws, such as the California Consumer Privacy Act (CCPA) and the Colorado Privacy Act (CPA), which share similarities with the GDPR.
The lack of a comprehensive federal law in the US has led to increasing alignment with the EU's approach to data privacy. This trend reflects the evolving nature of privacy rights in the digital age, where powerful technologies can both enhance and threaten human rights. For example, while surveillance technologies can facilitate human rights enforcement, they can also be misused to violate privacy and freedom of speech, assembly, and association.
Overall, privacy as a fundamental human right is essential for safeguarding individual autonomy, dignity, and the ability to establish boundaries and protect one's information and life from unwanted interference. It serves as a foundation for preserving and promoting other fundamental rights and freedoms in an increasingly interconnected and complex information ecosystem.
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Frequently asked questions
The EU has a "privacy-first" mindset, treating data protection as a fundamental human right. In contrast, the US has traditionally taken a more hands-off approach, favouring companies that collect and use personal data. The US does not have a federal law that provides comprehensive data privacy protection equivalent to the EU's GDPR.
While there is no federal equivalent to the EU's GDPR in the US, individual states such as California, Virginia, Colorado, Connecticut, and Utah have implemented similar policies. The California Consumer Privacy Act (CCPA) is often considered the US equivalent of the GDPR, as it gives California residents greater transparency and control over how businesses collect and use their personal information.
The CCPA adopts terms like "business", "service provider", and "personal information", while the GDPR uses terms like "controller", "processor", and "personal data". The CCPA is more detailed and onerous than other US state laws and is the only law that establishes a private right of action and a dedicated regulator. The CCPA also differs significantly from the GDPR in contracting requirements.
