Privacy on Both Sides of the Atlantic

James Whitman, is a Yale law professor specializing in comparative law, author most recently of the intruiguing Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe. Here is part of the introduction to a 2004 law review article called Two Western Cultures of Privacy: Dignity versus Liberty (abstract here; full text in .pdf format here) which compares American and European ideas of privacy.

The introduction has some nice general observations. Here they are, stripped of legalese and footnotes:

To the Europeans, indeed, it often seems obvious that Americans do not understand the imperative demands of privacy at all. The Monica Lewinsky investigation, in particular, with its numerous and lewd disclosures, led many Europeans to that conclusion. But the Lewinsky business is not the only example: There are plenty of other aspects of American life that seem to Europeans to prove the same thing. Let me offer a variety of examples from France and Germany, two countries that have been my focus in recent research, and that are my focus in this Article as well. Some of the things that bother French and German observers involve what Americans will think of as trivialities of everyday behavior. For example, visitors from both countries are taken aback by the ill-bred way in which Americans talk about themselves. As a French article warns visitors to the United States, America is a place where strangers suddenly share information with you about their "private activities" in a way that is "difficult to imagine" for northern Europeans or Asians. Americans have a particularly embarrassing habit, continental Europeans believe, of talking about salaries. It is "normal in America," an Internet site informs German tourists, for your host at dinner to ask "not just how much you earn, but even what your net worth is" –topics ordinarily quite off-limits under the rules of European etiquette. Talking about salaries is not quite like defecating in public, but it can seem very off-putting to many Europeans nevertheless.   

But it is not just a matter of the boorish American lack of privacy etiquette. It is also a matter of American law. Continental law is avidly protective of many kinds of "privacy" in many realms of life, whether the issue is consumer data, credit reporting, workplace privacy, discovery in civil litigation, the dissemination of nude images on the Internet, or shielding criminal offenders from public exposure. To people accustomed to the continental way of doing things, American law seems to tolerate relentless and brutal violations of privacy in all these areas of law. I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?   

These are clashes in attitude that go well beyond the occasional social misunderstanding. …  When it comes to privacy, there are plenty of European practices that seem intuitively objectionable to Americans. Some of these have to do with seemingly minor aspects of the anthropology of everyday life, most especially involving nudity. If the Europeans are puzzled by the ill-bred way in which Americans casually talk about themselves, Americans are puzzled by the ill-bred way in which Europeans casually take off their clothes. Phenomena like public nudity in the parks of German cities are particularly baffling to Americans, but so are phenomena like the presence of female attendants in men’s washrooms. It is genital nudity that Americans find most bizarre: One’s genitalia are "privates" in the full sense of the word in America, and one does not ordinarily expose them in public, and certainly not before the opposite sex. Even breasts are supposed to be kept covered in the United States–as the occasional female European tourist has discovered, when arrested (or even jailed!) for sunbathing topless on an American beach. ("Those Americans are Out of Their Minds!" howls a headline from a Swiss tabloid reporting one such incident from Florida.) Even American advertising, which doesn’t stop at much, doesn’t show bare breasts.

Public nudity may seem little more than a curiosity (though we shall see that it raises revealing problems in the European law of privacy). But here again, it is not just a matter of norms of everyday behavior; it is a matter of law. There are numerous aspects of European law that can seem not only ridiculous, but somewhat shocking to Americans. For example, continental governments assert the authority to decide what names parents will be permitted to give their children–a practice affirmed by the European Court of Human Rights as recently as 1996. This is an application of state power that Americans will view with complete astonishment, as a manifest violation of proper norms of the protection of privacy and personhood. How can the state tell you what you are allowed to call your baby? Nor does it end there: In Germany, everybody must be formally registered with the police at all times. In both Germany and France, inspectors have the power to arrive at your door to investigate whether you have an unlicensed television. Evidence that Americans would regard as illegally seized is routinely considered in continental adjudication. In France and Germany, according to a recent study, telephones are tapped at ten to thirty times the rate they are tapped in the United States–and in the Netherlands and Italy, at 130 to 150 times the rate. All of this will make many an American snigger at the claim that Europeans have a superior grasp of privacy. What kind of "privacy" is there, Americans will ask, in countries where people prance around naked out of doors while allowing the state to keep tabs on their whereabouts, convict them on the basis of unfair police investigations, peer into their living rooms, tap their phones, and even dictate what names they can give to their babies?

Evidently, Americans and continental Europeans perceive privacy differently.

22 thoughts on “Privacy on Both Sides of the Atlantic

  1. In Germany, everybody must be formally registered with the police at all times.

    With the police? What?

    You must be registered, yes. That sounds better to me than the Selective Service System purchasing mailing lists from seedy address traders.

    In both Germany and France, inspectors have the power to arrive at your door to investigate whether you have an unlicensed television.

    True but highly misleading, and apparently intentionally so. Notice the careful wording: “the power to arrive at your door.” Everyone can “arrive at my door” if they feel so inclined. The GEZ people have the right to “demand information” about your radio and TV receivers – that is all, and it is not much.

  2. Seeing the title, I feared for a second that this blog had been infested by the new great French Helmsman. Thank God it has not, and please keep it this way.

  3. “In Germany, everybody must be formally registered with the police at all times.

    With the police? What?”

    Since I’m here and not German either:
    Well, such a thing as Anmeldung, Ummeldung and Abmeldung from your city doesn’t exist in France, and obviously not in the USA either.
    When someone wants to check your address in France, they ask you to bring your last electricity or telephone bill, for instance, and a simple Heilpraktiker’s invoice that I was by chance carrying around has once been accepted as proof of my residence by a French consulate. And although I’ve been living in Germany for more than 15 years, I’m still registered in the electoral roll of the French village in which… I never really lived (but spent my week-ends regularly, and since voting is on Sundays, it was more convenient).

  4. The GEZ has no right to search my home, they can come and ask but that is it.
    Second nudity is not demanded you can choose if you get naked in public or not. I’m rather “prudish” myself and don’t like to get naked in front of strangers, but to all others I say be my guest.

  5. I am also still registered with the municipality (no police involved so far) in my home village in Germany although I live abroad since almost six years.

  6. As Volker says, the GEZ (the entity that invoices public TV fees) has no rights to search homes. They don’t have “inspectors” either. They do send employees of the public channel’s offices which can carry out surveys and ask people at home whether they own TVs or radios. You don’t have to respond to them, and you certainly don’t have to let them in to search your home. So Professor Whitman is right when he says that they have “the power to arrive at your door to investigate”, like any citizen has the power to arrive at your door. Whether you let them in is another question.

  7. Speaking of baby names, the Germans are also completely weird about change of name deeds. Obviously, a mechanism for such changes is already in place and used when people get married; why it is not generally available is beyond me. If there’s not a lot of demand for it, then it won’t put much (additional) strain on the system to accomodate people outside of marriage, and pretty much no change is required. If there is a lot of demand for it, they can make some much needed money by serving their citizens’ needs? All it seems to take for a win-win situation is some sensible pricing.

  8. Whitman’s formulation of being registered with the police seems to be incorrect, at least in my part of Germany. I am registered with the Einwohnermeldeamt (citizen registration bureau). However, lots of agencies seem to have access to these data, probably including the police. (If that’s wrong, let me know).

    As for the GEZ, I think Whitman’s formulation is not misleading at all. Having someone working for a government agency knock on your front door and “demand” information from you, in a situation in which you might face penalties for providing false information, is a serious matter to 99% of all humans. This holds regardless of whether you have a duty to answer the demand or let the investigator into your home. You have no such duty, but how many Germans actually know this and will think of it when faced with an aggressive GEZ investigator? In many cases GEZ investigators are actually paid on a commission basis, so they have a strong incentive to make you think you must cooperate with them. These encounters can be rather unpleasant; for an example see here.

    Whitman is not trying to score points here, he’s setting up a discussion of two different conceptions of privacy. He’s absolutely right that a similar program would meet stiff resistance in the U.S. An American “GEZ investigator” would not survive a day’s work in most Texas neighborhoods, since people definitely do not like strangers — especially people working on behalf of meddlesome government bureaucrats — knocking on their doors for no good reason (think also of the European tourists who get shot or injured in the USA by knocking too hard on the wrong door in the wrong neighborhood).

    The relevant question is not whether this is good or bad, but: “What does the fact that this kind of program would never be structured the same way in the U.S. tell us about differing conceptions of privacy?”

  9. The question of registering and ID cards tends to get confusing because there are three different thnigs that need to be separated: Ausweispflicht – you have to have a state-issued, national ID card; Mitführpflicht – you have to carry that card with you at all times, and Meldepflicht, you have to register with the authorities.

    The United States have none of these. There is no national ID card, you don’t have to be able to show anybody any identification, and you don’t have to tell the state that you are moving. Germany has the Ausweispflicht and the Meldepflicht, but no Mitführpflicht – you don’t have to carry that card with you at all times. Unfortunately, a fair number of Germans think you do and keep telling this to Americans. The Netherlands, I believe, has a Mitführpflicht.

  10. Having someone working for a government agency knock on your front door and “demand” information from you, in a situation in which you might face penalties for providing false information, is a serious matter to 99% of all humans.

    This ominous “power to arrive at your door” is nonsense nonetheless. There are much greater “powers” that are accepted in the US without much thought, e.g. the power of police to stop car drivers and ask for their license.

    He’s absolutely right that a similar program would meet stiff resistance in the U.S. An American “GEZ investigator” would not survive a day’s work in most Texas neighborhoods, since people definitely do not like strangers — especially people working on behalf of meddlesome government bureaucrats — knocking on their doors for no good reason

    As opposed to Germany, where GEZ inspectors are a beloved national institution, second in popularity only to the Sandmännchen? Hardly so. They frequently experience verbal abuse and even bodily harm. That’s because Germans don’t like bureaucrats knocking on their door either, even if – as in this case – they don’t come from a “government agency” and have no real power whatsoever. (The stories about people getting shot at because they offend those fierce Texans are cute, but even in light of laxer gun-control laws I assume that it’s still illegal in Texas to shoot at people just like that, so this is really a non-issue.)

    So what exactly is the difference? That Germany has TV and radio licensing, and America doesn’t. However, I assume that, for example, food safety inspectors in the US arrive at the doors of restaurants and food manufacturers from time to time too, or do they do their jobs by sending letters to the sausage factory asking if everything is all right?

  11. So basically, the question is the following: does one prefer to live in a country where

    1) one can show one’s private parts in a public park and down a bottle of vodka at the same time, while suffering from the need to be registered and letting the GEZ knock at one’s door,
    OVER
    2) living in a country where one can name one’s child freedom or starlight, move without registering and have no idiot’s knock on one’s door, while always having to cover one’s private parts in public and brownbag alcohol in public.

    Why can’t we have the best of BOTH? Is there such a country? Probably there are dozens of them which definitely deserve a mention here!

  12. “How can the state tell you what you are allowed to call your baby?”

    The state can because it distinguishes between private matters (which concern only one person) and family matters (which concern at least two persons). You could as well ask how the state can tell me not to beat up my wife.

  13. Actually, the police are not allowed to stop citizens at random and ask for their licenses in the USA. Unless they are staging a drug checkpoint or searching for a fleeing suspect, they may only stop your car if they have probable cause to believe that you have committed an offense. Sobriety checkpoints are accepted throughout Europe (and for good reason), but in the U.S. they are controversial, heavily-regulated and illegal in about 10 states. Naturally, police officers can and do ignore these rules, but the rules exist, and are intended to make it legally impossible for police officers to stop a motorist unless the officer has reason to suspect the motorist is breaking the law.

    In any event, the analogy doesn’t really hold, since driving a car is a much more highly-regulated and dangerous activity than sitting at home watching television. For that reason, I also don’t find the analogy to food safety very convincing, since bad food could endanger large numbers of complete strangers. Perhaps a better analogy would be to using heat-sensing technology to detect indoor marijuana growth. But even there, you’re presumably going to sell the stuff, and even Germany has made marijuana distribution (very slightly) illegal.

    The GEZ might technically be some sort of QUANGO, and thus not a “government bureaucracy” in the classical sense, but this distinction is rather fine, don’t you think? Where is the money that pays the GEZ people ultimately coming from? TV and radio fees. Who decreed that these fees were to exist, and that Germans would have to pay them? The government. Who could abolish these fees tomorrow? The government. As for meddlesome, if knocking on your door uninvited, asking you a lot of questions about items of personal property you have in your home, then repeatedly asking to be invited inside to verify the accuracy of the answers is not “meddlesome,” then what is? The question of how much power they actually have is irrelevant, since many citizens are likely to assume they have much more power than they actually do. Germans do complain about the GEZ people, and do so lustily, but the more interesting fact is that the program was structured this way in the first place, whereas something similar would be unthinkable in the U.S. — not only because citizens would not accept being pestered with questions about their private property, but also because the German TV fee enforcement scheme relies basically on the honor system.

    And, to further highlight the cultural differences, you can actually shoot someone who is knocking loudly on your door in many states. If you show that you reasonably believed they were trying to break into your house, you will be able to invoke the right to use deadly force in defense of your property and family, and you will not be prosecuted. This holds even if the victim was an unfortunate tourist; the only relevant question is the state of mind of the house’s owner. A man’s home is his castle, as they say in the U.S.

  14. It seems to me that the logical USA equivalent of the GEZ is a property tax assessor. They have the right to go to your door, but you do not have to let them in. Of course with satellite mapping one is far less likely to be able to hide a new pool or other property improvement by putting up a high fence.

  15. In any event, the analogy doesn’t really hold, since driving a car is a much more highly-regulated and dangerous activity than sitting at home watching television.

    But on the other hand, someone “arriving at your door” and asking you questions is about the slightest “invasion of your privacy” imaginable. And I believe that I don’t just say that because I’m German and it’s a cultural thing. Unwanted visitors are annoying, to Europeans as well as Americans. But they hardly touch your privacy.

    something similar would be unthinkable in the U.S. — not only because citizens would not accept being pestered with questions about their private property, but also because the German TV fee enforcement scheme relies basically on the honor system.

    That’s speculation. One might just as well argue that due to cultural differences there would never be a military draft in the US, or a state-owned and subsidized passenger railway.

    And, to further highlight the cultural differences, you can actually shoot someone who is knocking loudly on your door in many states. If you show that you reasonably believed they were trying to break into your house, you will be able to invoke the right to use deadly force in defense of your property and family, and you will not be prosecuted.

    Lots of things are legal if you somehow manage to invoke the excuse of self-defense. But someone knocking on your door is not normally a self-defense situation.

    A man’s home is his castle, as they say in the U.S.

    They not only say that, they have a whole “castle doctrine” over there. But, correct me if I’m wrong – isn’t it more like this? Self-defense law in the US knows certain limitations that are mostly unknown in Germany*, such as a requirement of proportionality, special treatment of “deadly force,” and in some cases even a “duty to retreat”? And the “castle provisions” that exist in some states exempt the defense of one’s home from these limitations?

    * Although, controversially, unwritten limitations do exist. I posit that the practical result is not all that different from the US. I’m not a legal scholar, let alone one of comparative law, but my impression is that, for all the doctrinal differences, in the daily practice of the courts doctrine always gets watered down in the interest in common sense, equalizing the differences. For another example, look at the unique system of purchase contracts under BGB law. In theory, a world of a difference to Anglo-Saxon practice. In reality, the age-old activities of buying and selling goods are exactly the same the world over.

  16. On another point – in my experience as an American, it is absolutely untrue that Americans talk freely about how much money they make. I have no idea what any of my friends’ salaries are, and it is considered extremely rude to ask. If one wants to volunteer, that is another thing, but even then many objections rise in my mind to simply telling other people how much money I make. I wonder who the author of the French guide to the U.S. talked to – I have never encountered anyone in the U.S. who talks freely about how much he or she makes. People do talk more freely about how much they pay for rent or when buying a house – but even then, I would only discuss that with friends, not with acquaintances. The country where I have consistently been asked what my salary is – Israel, when visiting or living there, even by complete strangers (e.g., taxi drivers).

  17. “But, correct me if I’m wrong – isn’t it more like this? Self-defense law in the US knows certain limitations that are mostly unknown in Germany*, such as a requirement of proportionality, special treatment of “deadly force,” and in some cases even a “duty to retreat”? And the “castle provisions” that exist in some states exempt the defense of one’s home from these limitations?”

    You are not wrong, Sebastian. But do understand that what the law is and what a jury will decide can be two different things – as the OJ Simpson trial(s) showed.

    I recall a case in Durham, North Carolina when I lived there. A man was home taking care of a sick child when a group of 5-6 young men kicked his door down – an extreme form of knocking I suppose. Their intent I don’t know…

    This gentlemen went to get his gun and began firing at the youths, even after they began to flee the scene. One youth was shot in the back and died, and the Durham county attorney indicted the man for murder. When the case was brought to trial the jury acquitted him. Again I don’t know upon what precise grounds they did so.

    I probably would have voted to acquit had I been on the juty – on the reasoning that the youths took their lives into their hands when they elected to violently enter another persons private property.

    Possibly also because there may well have been a history of this behavior (this sounds like a neighborhood gang to me) and threats of vengeance may have been uttered.

    It’s not necessarily a legal doctine – but there is strong precedent that American juries will act to nullify the formal law when they believe the authorities are misusing it….

  18. “But, correct me if I’m wrong – isn’t it more like this? Self-defense law in the US knows certain limitations that are mostly unknown in Germany*, such as a requirement of proportionality, special treatment of “deadly force,” and in some cases even a “duty to retreat”? And the “castle provisions” that exist in some states exempt the defense of one’s home from these limitations?”

    You are not wrong, Sebastian. But do understand that what the law is and what a jury will decide can be two different things – as the OJ Simpson trial(s) showed.

    I recall a case in Durham, North Carolina when I lived there. A man was home taking care of a sick child when a group of 5-6 young men kicked his door down – an extreme form of knocking I suppose. Their intent I don’t know…

    This gentlemen went to get his gun and began firing at the youths, even after they began to flee the scene. One youth was shot in the back and died, and the Durham county attorney indicted the man for murder. When the case was brought to trial the jury acquitted him. Again I don’t know upon what precise grounds they did so.

    I probably would have voted to acquit had I been on the juty – on the reasoning that the youths took their lives into their hands when they elected to violently enter another persons private property.

    Possibly also because there may well have been a history of this behavior (this sounds like a neighborhood gang to me) and threats of vengeance may have been uttered.

    It’s not necessarily a legal doctine – but there is strong precedent that American juries will act to nullify the formal law when they believe the authorities are misusing it….

  19. As some have noted before there are a few mistakes or misconceptions in the article:

    1. The german “inspectors” of television licenses have the same power as your neighbour or any other person on the street. To ring at your door. Thats it. You do not have to open. You do not have to talk to them. You can slam the door right into their face.

    2. You do not have to regisiter at the police in Germany but at the mayors office. This is necessary for tax reasons and to be able to vote.

    3. While it is true that people for example in big cities will run around naked in parks that does not mean the majority of germans feels comfortable with this or would do that themselves. This is a very very small minority which is tolerated.

  20. This gentlemen went to get his gun and began firing at the youths, even after they began to flee the scene. One youth was shot in the back and died, and the Durham county attorney indicted the man for murder. When the case was brought to trial the jury acquitted him. Again I don’t know upon what precise grounds they did so.

    I probably would have voted to acquit had I been on the juty – on the reasoning that the youths took their lives into their hands when they elected to violently enter another persons private property.

    I guess I would have tended towards a guilty verdict, because my instinct tells me you can’t shoot a fleeing person in the back and then say it was self-defense. But of course we don’t know all the details of what happened. German law has an excessive self-defense clause that stipulates that if you exceed the limits of self-defense out of confusion, fear, or shock, you go unpunished.

    The greater point, though, is that when someone kicks your door down, they are obviously outside of the law. Knocking is a different story altogether, I would say!

  21. > In both Germany and France, inspectors have the power to arrive at your door to investigate whether you have an unlicensed television.

    I do not know what the law in France is, but in Germany, they need to stop at the door like every other person and they have NO right to investigate any further if you you do not invite them in (think of vampires they can also only enter if they are invited 😉

  22. The GEZ visited me recently – I am an American living 25 years in Germany – which wasn’t pleasant. The GEZ fellow, who is not employed by the government, but is a freelancer – asked me if I was aware of the consequences, since I have nothing “anzumelden”. Even though they don’t have access to my private home, they are indeed sinister and threatening. The “honor system” in public transportation is annoying. Conversations with travel companions are continually being interrupted by “Fahrausweis bitte”. Many “Kontrolleure” are abrupt and demanding.

    Here in Germany I had to register my residency at a police station. There are many agencies (i.e. GEZ) which have access to those files.

    The theme of credit rating: the SCHUFA doesn’t have to tell you why you won’t be issued a credit card. This happened to me, although I never had debt.

    In the USA, I can’t remember conversations with acquaintances/ strangers about wages or earnings. Germans do often ask about apartment rent. They also talk VERY MUCH about “good deals” when purchasing, that is how little they’ve paid for some item.

    Earlier nude bathing was a big thing for a small minority of Germans, now it is no longer so. Many Germans I know – even younger ones – find it embarrassing.

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