Privacy protection amid surveillance capitalism: a cross-atlantic comparative legal enquiry

Juhász, Bence (2024) Privacy protection amid surveillance capitalism: a cross-atlantic comparative legal enquiry. ANNALES UNIVERSITATIS SCIENTIARUM BUDAPESTINENSIS DE ROLANDO EÖTVÖS NOMINATAE - SECTIO IURIDICA, 62 (1). pp. 205-231. ISSN 0524-899X

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Abstract

This essay researches privacy laws related to the analysis of big data performed by global online service (GOS) corporations such as Google and Facebook. First, I expose the business model of GOS corporations, ‘surveillance capitalism’ and discuss its potential to undermine the dignity of individuals and the integrity of the democratic process.1 Next, I perform a comparative legal investigation between the USA and the EU to evaluate their regulatory frameworks amid surveillance capitalism. Additionally, I propose an initiative to enhance individuals’ data protection. I conclude that the current US framework is unable to provide an effective protection of data and privacy, due to the absent horizontal effect of the Fourth Amendment and its limited protective scope due to the third party doctrine. The EU regime, however, could effectively protect citizen’s data amid surveillance capitalism by considering the criteria for free user consent in conjunction with tests following from consumer protection and competition law. I therefore suggest that in the US a federal legislative bill that mimics the GDPR should be passed, while the GDPR should be adjusted to accept the exploitation of User-Generated Content (UGC) data, as opposed to User-Generated Traces (UGT) data, according to the logic of the reasonable expectation of privacy test.

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