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33 Ind. L. Rev. 173 (1999-2000)
The Changing Face of Privacy Protections in the European Union and the United States

handle is hein.journals/indilr33 and id is 183 raw text is: THE CHANGING FACE OF PRIVACY PROTECTION IN THE EUROPEAN UNION AND THE UNITED STATES FRED H. CATE* * Professor of Law, Harry T. Ice Faculty Fellow, and Director of the Information Law and Commerce Institute, Indiana University School of Law-Bloomington. Senior Counsel for Information Law, Ice Miller Donadio & Ryan. I am grateful for the thoughtful comments of Professor Ronald J. Krotoszynski, Jr. that appear in this same issue. I agree entirely with his cautionary words about new technologies and the potential dangers of embracing them mindlessly. I commend to the reader his close analysis of cases, especially those involving the First Amendment, although it is clear that I disagree with some of the conclusions he draws from those cases. For example, all of the cases he puts forward as supporting government restraints on information involvefalse expression; I therefore question their predictive value for how the Supreme Court might evaluate a restriction on true speech, Similarly, the expression in commercial contexts, which he treats as lower value speech and therefore less worthy of protection under the First Amendment-as did the Court itself in the 1970s and 1980s-I believe is more likely to receive full First Amendment protection today, in light of the fundamental importance of such expression in most of our lives and.the Court's repudiation of Posadas. See Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 509 (1996) (holding that the decision in Posadas incorrectly performed First Amendment analysis by deferring to the legislature). Even if, however, Professor Krotoszynski is correct that the Court might conclude that the First Amendment is not an obstacle to a ban on the collection or use of true, lawfully obtained information, my reading of the Constitution and the interests at stake leads me to conclude that the Court should not. I disagree with Professor Krotoszynski's reading of the Takings Clause and recent Takings jurisprudence. Although the Takings Clause-unlike the First Amendment-is not central to my analysis of information privacy issues and why the government should proceed very cautiously before regulating information to address those issues, it is by no means clear that, as Professor Krotoszynski writes, a state legislature could simply pass legislation declaring that no property interest accrues from the collection of personal information. Ronald J. Krotoszynski, Jr., Identity, Privacy, and the New Information Scalpers: Recalibrating the Rules of the Road in the Age of the Infobahn, 33 IND. L. REv. 233, 246 (1999). On the contrary, the Court's solicitude in Ruckelshaus v. Monsanto Co.,467 U.S. 986 (1984), for an entity's reasonable investment-backed expectation with respect to its control over the use and dissemination of the data I believe suggests that states would face significant constitutional hurdles if they were to attempt to prohibit outright the collection or use of data. Id. at 1011. The assertion of Professor Krotoszynski's that I find most intriguing is his proposal that we eliminate the historical dividing line between the government and everyone else for purposes of regulating the collection and use of personal information. See Krotoszynski, supra, at 250-51. The special protection that applies to personal information in the hands of the government is justified on significant constitutional and practical grounds. The current structure of data protection is a trade-off: the government gets the power to compel disclosure of data; in exchange, it is subject to special restraints on its use of those data. To abolish that distinction, either by giving private parties government-I ike powers to compel citizens to disclose personal information or by weakening the privacy protections applicable to the government by extending them to private entities, seems to me profoundly unwise. At heart, Professor Krotoszynski's arguments and mine differ most in terms of the vision they reflect. He writes of abuses and confidential data without defining what these are. If these terms refer to collecting information illegally, or distributing false and harmful data about an individual, or violating a promise concerning the use of personal 'information, then current law already provides significant penalties and I agree with him that it should. If, however, as I suspect, Professor Krotoszynski means something broader by these terms, then I do not share the vision that

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