Institutionally Appropriate Approaches to Privacy: Striking a Balance between Judicial and Administrative Enforcement of Privacy Law

Abstract

This note argues for distribution of enforcement authority between the courts and the Federal Trade Commission that would vigorously and predictably protect a scope of personal privacy defined by law. The FTC should be the forum where corporate data privacy practices are balanced against the general public interest in data privacy, with a view toward striking the balance that maximizes overall societal utility. At the same time, courts should take an active role in resolving disputes that concern whether one person has infringed an interest of another, with the support of state administrative agencies specifically tasked with resolving these types of disputes. This note envisions a significant and unique role for the courts in privacy enforcement that is supportive of the FTC's current role, and makes provisional state legislative suggestions for how this role for the courts could be achieved.

Keywords: privacy, technology, administrative law, common law, torts, FTC, data, information