14 Colum. J. Eur. L. 1 (2007 – 2008)
Mark F. Kightlinger, Assistant Professor, University of Kentucky College of Law; Partner, Covington & Burling 1999- 2004; J.D., Yale Law School, 1988; Ph.D., Yale University, 1991; B.A./M.A., Cambridge University, 1983/1995; B.A., Williams College, 1981.
This Article provides a timely examination of the European Union’s approach to information privacy on the internet, an approach that some legal scholars have held up as a model for law reform in the United States. Building on the author’s recent piece discussing the U.S. approach to internet privacy, this Article applies to the EU’s internet privacy regime a theoretical framework constructed from the writings of philosopher and social theorist Alasdair Macintyre on the failures of Enlightenment and post-Enlightenment thought. The EU internet privacy regime is shown to reflect and reinforce three key elements of the “post-Enlightenment paradigm,” i.e., the sovereign individual, the market, and the administrative bureaucracy. The EU regime, like the U.S. internet privacy regime, stems from and helps to preserve a world in which the individual constructs a personal identity by trading personal information as a commodity to corporate bureaucracies in a regulated market under the supervision of impersonal government bureaucracies. In what Macintyre labels “the culture of bureaucratic individualism,” each new assertion of the individual’s supposed fundamental right to privacy paradoxically enhances bureaucratic power. Because in these fundamental respects the EU internet privacy regime resembles the U.S. regime, the Article contends that debate over which regime is superior is little ‘more than a family quarrel, a quarrel that cannot be resolved under the post-Enlightenment paradigm. This Article identifies and discusses important new questions about the extent to which our post-Enlightenment situation constrains our capacity to imagine and act upon innovative approaches to personal privacy.