The Safeguards of Privacy Federalism
Jean Monnet Working Paper 18/15
60 Pages Posted: 1 Aug 2015 Last revised: 29 Dec 2015
Date Written: July 30, 2015
The conventional wisdom is that neither federal oversight nor fragmentation can save data privacy any more. I argue that in fact federalism promotes privacy protections in the long run. Three arguments support my claim. First, in the data privacy domain, frontrunner states in federated systems promote races to the top but not to the bottom. Second, decentralization provides regulatory backstops that the federal lawmaker can capitalize on. Finally, some of the higher standards adopted in some of the states can, and in certain cases already do, convince major interstate industry players to embed data privacy regulation in their business models.
Keywords: data privacy, federalism, preemption, third-party doctrine, Fourth Amendment, US-EU comparison
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