Federalization in Information Privacy Law

Abstract

In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of stronger state regulation. That conclusion, though narrow, rests on descriptive and normative claims with broad implications for the state-federal balance in information privacy law. Descriptively, Professor Schwartz sees the current information privacy law landscape as the product of successful experimentation at the state level. That account, in turn, fuels his normative claims, and in particular his sympathy with theories of competitive federalism. As I will argue, however, we cannot ignore the federal inputs -- judicial and legislative -- that shape significant segments of state information privacy law. The story of information privacy law is one of federal leadership as well as state experimentation, and we should be wary -- whether on the basis of observable practice or theoretical perspective -- of disabling Congress from articulating and federalizing privacy norms. Moreover, even from the perspective of competitive federalism, the arguments for federal regulation of information privacy law are stronger than Professor Schwartz suggests.

Keywords: privacy, digital privacy, internet law, competitive federalism

JEL Classification: K1, K14