The Safeguards of Privacy Federalism

60 Pages Posted: 1 Aug 2015 Last revised: 29 Dec 2015

See all articles by Bilyana Petkova

Bilyana Petkova

Middlesex University London; Yale University - Yale Information Society Project

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

Suggested Citation

Petkova, Bilyana, The Safeguards of Privacy Federalism (July 30, 2015). Jean Monnet Working Paper 18/15 , Lewis & Clark Law Review, Vol. 20, No. 2, 2016, Forthcoming , Available at SSRN: or

Bilyana Petkova (Contact Author)

Middlesex University London ( email )

, The Burroughs, Hendon, London, United Kingdom
London, NW4 4BT
United Kingdom

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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