Metro

  • Written by Jeff Sovern, Professor of Law, St. John's University

Supreme Court Justice Louis Brandeis called privacy the “right to be let alone[1].” Perhaps Congress should give states trying to protect consumer data the same right.

For years, a gridlocked Congress ignored privacy, apart from occasionally scolding companies such as Equifax[2] and Marriott[3] after their major data breaches. In its absence, states have taken the lead in experimenting with privacy-related laws.

California, for example, recently passed legislation[4] giving citizens the right to know what data businesses have on them – and to block the information’s sale to third parties. It’s the first of its kind[5] in the U.S. and has prompted lawmakers[6] in other states to try to follow suit.

That’s gotten the attention of businesses, especially in tech, which have been lobbying Congress[7] to preempt a possible patchwork of state laws with what could amount to a weaker federal one. Some observers predict[8] this could be that rare issue that inspires bipartisan compromise in Congress this year.

Sounds like great news, right?

Wrong.

As someone who has studied privacy for nearly two decades[9], I believe consumers are better off if Congress doesn’t intrude and lets states keep experimenting on how to best protect Americans’ personal data.

Following California’s lead

It may be hard to remember, but there was a time when companies were able to keep data breaches secret, so that consumers didn’t even know hackers had their information and that they needed to take steps to protect themselves.

Then California’s data breach law[10] took effect in 2003. California requires companies that suffer data breaches to notify affected consumers as well as the state’s attorney general.

As lawmakers elsewhere learned from these notifications just how common data breaches had become, the other 49 states followed suit[11]. The result is that more than 8,000 data breaches affecting more than 11 billion records[12] have been made public – and all without Congress doing a thing.

If states had not acted on their own, Americans might never have learned about the Equifax or Marriott breaches, or about the 1,244 breaches affecting 446 million records that occurred just last year[13].And just as other states followed California on breaches, some are attempting to do the same on privacy legislation.

The California Consumer Privacy Act[14], which will take effect next year, will give Californians the right to learn what companies know about them and the kinds of businesses they sell that information to, as well as the right to block such sales. Consumers will also be able to require companies to delete information on them in some circumstances.

Legislators in states[15] including Massachussetts[16], Washington[17] and New York[18] have introduced similar privacy bills this year.

Congress is considering privacy legislation – be afraid California has taken the lead on protecting consumer data. AP Photo/Don Thompson[19]

Congressional intrusion

But Congress could bring this experimentation to a halt if lawmakers enact a weaker privacy bill that overrides state laws, as industry lobbyists are seeking[20].

Congress frequently preempts state laws. For example, the federal arbitration law[21] prevents states from regulating arbitration agreements, even barring states from merely requiring[22] that contracts require arbitration on the first page.

I don’t mean to say that there’s no room for Congress to get involved. Most Americans still lack important privacy protections, and Congress could help fill that gap.

But rather than circumventing state laws, a federal privacy law should work in partnership with them – just as federal laws regulating auto safety such as airbag requirements[23] operate in tandem with state regulations that govern related issues such as how fast motorists can drive.

Industry advocates, however, don’t want federal and state laws to exist side by side because they say companies will have trouble following the rules of different states. Businesses had the same concerns about state data breach laws, and testimony from Marriott’s CEO[24] suggests the company didn’t find it too troublesome to comply with them, however different.

It’s more likely, then, that companies realize that it will be easier for their lobbyists to win a victory in one legislature – Congress – than in 50 states.

Lobbyists have also argued[25] consumers would be bewildered by such a patchwork of state privacy laws. They claimed[26], for example, that a consumer driving from Biloxi, Mississippi, to Bellevue, Washington, would be confused by the different privacy regimes she would encounter.

But that same person – during that same drive – copes with a wide variety of traffic laws. Drivers seem to be able to navigate those different laws just fine.

New tech, new threats to privacy

Another concern is that technology is continually improving, with each new advance creating a new privacy challenge for consumers that they cannot now foresee.

Biometrics is an example of an issue that only in recent years has become a serious privacy concern. It’s one thing to use facial recognition software to unlock your phone, another if companies are able to buy your image so they can tailor the ads[27] you see to what you look like.

Illinois was at the forefront of innovation when in 2008 it passed a statute[28] that prevents companies from selling information about consumers’ fingerprints, retina scans, voiceprints and similar items and requires companies to notify consumers before capturing biometric information. Other states, like Texas[29] and Washington state[30], have since enacted similar laws.

Congress is considering privacy legislation – be afraid Louis Brandeis dubbed privacy the ‘right to be left alone.’ AP Photo[31]

But it’s another reason a federal privacy law preventing states from experimenting may be worse than no federal law at all. Federal preemption would mean states could no longer respond to threats to privacy. And consumers would have only Congress to turn to for a remedy. Given that the last major consumer privacy law[32] at the federal level is already two decades old, it’s hard to believe the frequently frozen Congress would keep up with the times.

Worse, consumers would risk losing their only bargaining chip in the fight over their personal data: companies’ fear that states might put a stop to whatever they’re doing.

Brandeis, a prophet on privacy[33], called[34] the states the “laboratories of democracy.” Let’s see what results the labs produce before we stop experimenting – and risk learning the best solutions.

References

  1. ^ right to be let alone (faculty.uml.edu)
  2. ^ Equifax (www.nytimes.com)
  3. ^ Marriott (www.washingtonpost.com)
  4. ^ recently passed legislation (www.nbcnews.com)
  5. ^ first of its kind (store.law.com)
  6. ^ has prompted lawmakers (www.natlawreview.com)
  7. ^ have been lobbying Congress (www.reuters.com)
  8. ^ predict (www.brookings.edu)
  9. ^ someone who has studied privacy for nearly two decades (papers.ssrn.com)
  10. ^ California’s data breach law (leginfo.legislature.ca.gov)
  11. ^ other 49 states followed suit (www.ncsl.org)
  12. ^ more than 8,000 data breaches affecting more than 11 billion records (www.privacyrights.org)
  13. ^ 1,244 breaches affecting 446 million records that occurred just last year (www.idtheftcenter.org)
  14. ^ California Consumer Privacy Act (cal-privacy.com)
  15. ^ Legislators in states (iapp.org)
  16. ^ Massachussetts (www.clarip.com)
  17. ^ Washington (www.mediapost.com)
  18. ^ New York (www.bleepingcomputer.com)
  19. ^ AP Photo/Don Thompson (www.apimages.com)
  20. ^ industry lobbyists are seeking (www.commerce.senate.gov)
  21. ^ federal arbitration law (www.law.cornell.edu)
  22. ^ barring states from merely requiring (caselaw.findlaw.com)
  23. ^ airbag requirements (legisworks.org)
  24. ^ testimony from Marriott’s CEO (www.hsgac.senate.gov)
  25. ^ Lobbyists have also argued (www.commerce.senate.gov)
  26. ^ They claimed (www.commerce.senate.gov)
  27. ^ tailor the ads (www.goodeintelligence.com)
  28. ^ passed a statute (www.ilga.gov)
  29. ^ Texas (codes.findlaw.com)
  30. ^ Washington state (app.leg.wa.gov)
  31. ^ AP Photo (www.apimages.com)
  32. ^ last major consumer privacy law (www.congress.gov)
  33. ^ prophet on privacy (www.cs.cornell.edu)
  34. ^ called (supreme.justia.com)

Authors: Jeff Sovern, Professor of Law, St. John's University

Read more http://theconversation.com/congress-is-considering-privacy-legislation-be-afraid-116938

Metropolitan republishes selected articles from The Conversation USA with permission

Visit The Conversation to see more

Entertainment News

Violin ReEnvisioned

Falling in love with music so young was more than transformative. Music became the lead sheet of my life; challenging me to navigate changes with grace, maintain a steady rhythmic groove, dynami...

Chelsey Green - avatar Chelsey Green

Kadda Sheekoff Win Best Urban Song For "All My Life"

Singer Kadda Sheekoff have emerged as the toast of the 2020 Songdew Pause&Play. Obviously, there are many composers who deserve the award more than Kadda Sheekoff, but the decision of the S...

Media Release - avatar Media Release

A Musical Journey: The Authentic Ted Cline

Ted Cline was born in 1962 as the 11th of 13 children.  His parents were hard-working tobacco share-croppers in Weston, Missouri. By the time he was eleven, he was sneaking downstairs to play his...

Ted Cline - avatar Ted Cline

Angela Predhomme - My Musical Journey

Determined to “make it” in the music industry as a songwriter, I meticulously crafted the best songs I could and pitched them to industry gatekeepers. “THIS one’s got to be IT,” I thought. But ala...

Angela Predhomme - avatar Angela Predhomme

GREYE: “So Far So Good”

“So Far So Good” After seven plus years firing up venues up and down the Atlantic Coast and throughout the Midwest to the breakneck tune of 90-110 annual shows, it’s definitely been jarring fo...

News Company - avatar News Company

The life and times of Wendy Moten

I never thought I would be in the music business, much less a recording artist. I never saw it coming. I thought I'd be a corporate attorney or something like that. Little did I know that anothe...

Wendy Moten - avatar Wendy Moten

CARY PARK “You Matter to Me”

“You Matter to Me” In any other time, Cary Park’s stunning new single “You Matter to Me” might be just another beautiful heartfelt love song, an outpouring of personal affection towards a cheri...

News Company - avatar News Company

TED CLINE ... Country Music Done Right

Country Music Done Right When Ted Cline uses the phrase “Country Music Done Right” to describe his engaging vibe, the Kansas City area-based singer/songwriter isn’t simply being crafty or clev...

News Company - avatar News Company

LAMONT DOZIER, JR. “Why Can’t We Be Lovers”/”I’m Gonna Take My Time”

When it comes to enduring musical legacies, it’s always inspiring when the melodic, grooving evergreen apples drop so close to the tree. The son and namesake of legendary singer, songwriter and re...

News Company - avatar News Company

Metropolitan Business News

MODEL/ACTOR THORN CASTILLO IS THE “NEW FACE” OF SCHICK STYLIST

In 2019, just as his multi-faceted career was taking off, Thorn Castillo heard Robert Downey Jr. offer a sage bit of advice during an interview on photographer/director Sam Jones’ acclaimed multi-...

News Company - avatar News Company

New Research Highlights Opportunities for Sports Betting

Revenue Stream for Sports’ Post-COVID-19 Recovery Strategies New Rochelle, NY, June 1, 2020— Twenty-four states have now legalized sports betting, with more states considering legalization la...

Len Stein - avatar Len Stein

How to make overseas transfers easier?

Mainstream banks can charge as much as $20 just to process a basic international money transfer. Fortunately, today people are not doomed to handling personal finances only through mainstream gl...

News Company - avatar News Company

The flourishing international market of fragrance and perfume

There is something special and unique about the art of fragrance. This is a big world and there are quite literally a lot of smells around at any given time. In fact, as one of the five human senses i...

News Company - avatar News Company

Impact of good marketing on sales

Sales and marketing are brothers as they go hand and in hand. The job of both of these departments is to generate revenue so that an organization can make money. A company that does not generate rev...

News Company - avatar News Company

7 effective tips for increasing sales in retail

It seems that retailers have drawn a difficult lot in the 21st century: competition from online retail is growing steadily. After all, Internet retailers can sell your products at significantly lowe...

News Company - avatar News Company

Holidays

5 COOL GADGETS TO CARRY FOR A SAFE TRIP

Are you planning to go on a trip? Possibly, you do not know what things are most necessary on a trip. In this article, we will guide you through some important tips. These tips help you to...

News Company - avatar News Company

New Baggage Regulations to Help Aussie Parents Travel with Infants

Travelling around the globe has never been easy, especially when infants tag along for the trip. One of the main issues that parents often have to deal with is the need to bring extra item...

News Company - avatar News Company

Maya Beach Opens to Tourists

Despite recent reports that Southern Thailand's famous Maya Beach will close for three months this year, in fact no decision to this effect has been made by Thai authorities. Phi Phi Nati...

Maevadi Rosenfeldt - avatar Maevadi Rosenfeldt