미국의 개인정보보호 입법체계와 현황에 관한 일고 = A Study on the Legislative Scheme and the Current Status of Personal Information Protection of the United States

다국어 초록 (Multilingual Abstract)

This article aims at examining the legislative scheme of personal information protection of the United States, which can be divided into two sectors, namely, public sector and private sector protections, and then taking a look at the state-level legislation regarding the personal information protection, as the Korean Personal Information Protection Act came into effect in 2011 in order to get the comparative law perspectives. In the United States, basically the legislative scheme of personal information protection has been centered on the federal legislations and also the federal legislations can be called as the sectorial approach, for, as mentioned above, the federal legislations have been enacted according to the public sector and the private sector. In the public sector, the general strict regulations with respect to the structural and behavioral norms have been enacted in order to protect the personal information, whereas in the private sector, the regulations tend to rely on the market`s voluntary control rather than the direct governmental protection. In the private sector, the Federal government only intervenes the specific areas where the markets have failed in order to cope with the concrete problems. Each state of the United States has not yet enacted the unifying legislation. This is because based on the different political or constitutional traditions, each state tries to enact the laws regarding the personal information protection. In Korea, it was the same that the country had adopted the sectorial approach before the new personal information protection act came into effect. In private sector, since there have never been a general law, the regulations have been made sector by sector. However, in year 2011, the Korean legislature passed a law, which catches both public and private sectors at one stone to protect the private information of both sectors, which is “the Personal Information Protection Act of 2011” in Korea. Since the new law can be applied to individuals, way more disputes regarding the personal information can arise and then the matter should be whether the normative and institutional process to deal with many disputes have been prepared up to now. And it may become a topic that the legislative scheme of the United States should be preferred over the Korean one. As we learn through the example of the Unites States, the sectorial approach would better off if we want more legitimate solutions for the private information disputes that we face. Anyhow, this article suggests that there should be much more discussions about the topics above in the future.

참고문헌 (Reference)

1 정종섭, "헌법학원론 제7판" 박영사 2012

2 성낙인, "헌법학" 法文社 2012

3 한수웅, "헌법학" 법문사 2012

4 양건, "헌법강의" 법문사 2012

5 전광석, "한국헌법학" 집현재 2011

6 허영, "한국헌법론" 박영사 2011

7 최창호, "미국의 정보자유법에 관한 연구" 20 : 2004

8 김민호, "미국의 개인정보보호법제에 관한 연구" 미국헌법연구 1999

9 최인호, "미국 정보공개법상 공개거부사유로서의 사생활보호" 한국공법학회 36 (36): 541-573, 2008

10 손태우, "개인정보보호법제에 대한 최근 미국의 동향" 42 (42): 2001

11 성낙인, "개인정보보호를 위한 정책방안 연구" 정보통신부 1999

12 Mari-Rose Papandrea, "Under Attack: The Public’s Right to Know and the War on Terror" 25 : 35-, 2005

13 "U.S. v. Williams, 128 S.Ct. 1830"

14 "U.S. v. American Library Association, 539 U.S. 194"

15 Daniel J. Solove, "The Origins and Growth of Information Privacy Law" 828 : 23-, 2005

16 Martin E. Halstuk, "The Freedom of Information Act1966-2006: A Retrospective on the Rise of Privacy Protection over the PublicInterest in Knowing What the Goverment’s up to" 11 : 511-, 2006

17 "Standards for Privacy of Individually Identifiable Health Information" 67 : 53-182, 2002

18 "Reno v. ACLU, 521 U.S. 844, 868-870"

19 Paul M. Schwartz, "Privacy and Participation: Personal Information and Public Sector Regulation in the US" 80 : 553-, 1995

20 Marica S. Smith, "Internet Privacy-Protecting Personal Information: Overview and Pending Legislation" 2001

21 Daniel J. Solove, "Information and Privacy Law" 2006

22 "Connection Distribution Co. v. Keisler, 505 F.3d 545"

23 Robert Ellis Smith, "Compilation of State and Federal Privacy Laws"

24 Barbara S. Wellsberry, "Bridging the Difference: The Safe Harbor and Information Privacy in the United States and the European Union" 2001

25 "Ashcroft v. ACLU, 535 U.S. 564"

26 "Aschcroft v. Free Speech Coalition, 535 U.S. 234"

27 "American Civil Liberties Union v. Mukasey, 534 F.3d 181"

28 Matthew D. Bunker, "Access to Government-Held Information in the Computer Age" 20 : 543-, 1993