Privacy Localism

Abstract

Privacy law scholarship often focuses on domain-specific federal privacy laws and state efforts to broaden them. This Article provides the first comprehensive analysis of privacy regulation at the local level (which it dubs “privacy localism”), using recently enacted privacy laws in Seattle and New York City as principle examples. It attributes the rise of privacy localism to a combination of federal and state legislative failures and three emerging urban trends: the role of local police in federal counter-terrorism efforts; smart city and open data initiatives; and demands for local police reform in the wake of widely reported abusive police practices.

Both Seattle and New York have enacted or proposed (1) a local surveillance ordinance regulating the purchase and use of surveillance equipment and technology by city departments (including the police) and (2) a law regulating city departments’ collection, use, disclosure and retention of personal data. In adopting these local laws, both cities have sought to fill two significant gaps in federal and state privacy laws: the public surveillance gap (which refers to the weak constitutional and statutory protections against government surveillance in public places) and the fair information practices gap (which refers to the inapplicability of the federal and state Privacy Acts to government records held by local government agencies).

Filling these gaps is a significant accomplishment and one that exhibits all of the values typically associated with federalism (diversity, participation, experimentation, responsiveness, and accountability). This Article distinguishes federalism and localism and shows why privacy localism should prevail against the threat of federal and (more importantly) state preemption. The Article concludes by suggesting that privacy localism has the potential to help shape emerging privacy norms for an increasingly urban future, inspire more robust regulation at the federal and state levels, and inject more democratic control into city deployments of privacy-invasive technologies.

Keywords: privacy, local privacy regulation, local police, local government, surveillance equipment and technology, video surveillance cameras, facial recognition, automatic license plate readers, drones, data governance, open data, body cameras, federalism, localism