Defining ‘ Personal Data ’ in the European Union and U . S .
نویسندگان
چکیده
BY PAUL M. SCHWARTZ AND DANIEL J. SOLOVE T he applicability and scope of many privacy laws around the world depend upon how the term ‘‘personal data’’ is defined. Personal data is often referred to as ‘‘personally identifiable information’’ (PII), and we use the terms interchangeably here. PII is foundational to any privacy regulatory regime in its role of a jurisdictional trigger. In the U.S., privacy laws apply when PII is involved and are inapplicable when PII isn’t involved. The concept of personal data plays a similar role in the privacy law of the European Union. In the absence of personal data, there is no privacy right. Given PII’s fundamental role in privacy law, it is surprising that it lacks a uniform definition. In previous work, we focused on the approach to PII in U.S. privacy law and criticized the law’s disjointed, inconsistent and often overly narrow definitions of PII. To make privacy law effective for the future, we developed a new conception, PII 2.0, which avoids the problems and pitfalls of current approaches. The key to our model is to build three categories of PII—(1) identified, (2) identifiable or (3) non-identifiable—and to treat them differently. This approach permits tailored legal protections built around different levels of risk to individuals. In this article, we argue that PII 2.0 can do more than serve as the most workable approach for U.S. privacy law. It would also function well for EU privacy law and help harmonize the significantly divergent approaches between U.S. and EU privacy law.
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