Catalyzing Privacy Law

56 Pages Posted: 12 Aug 2019 Last revised: 15 Feb 2020

See all articles by Anupam Chander

Anupam Chander

Georgetown University Law Center

Margot E. Kaminski

University of Colorado Law School; Yale University - Yale Information Society Project; Yale University - Law School; University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship

William McGeveran

University of Minnesota Law School

Date Written: August 7, 2019

Abstract

The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for privacy.

Our close comparison of the GDPR and California’s privacy law reveals that the California law is not GDPR-lite: it retains a fundamentally American approach to information privacy. Reviewing the literature on regulatory competition, we argue that California, not Brussels, is catalyzing privacy law across the United States. And what is happening is not a simple story of powerful state actors. It is more accurately characterized as the result of individual networked norm entrepreneurs, influenced and even empowered by data globalization. Our study helps explain the puzzle of why Europe’s data privacy approach failed to spur US legislation for over two decades. Finally, our study answers critical questions of practical interest to individuals—who will protect my privacy?—and to businesses—whose rules should I follow?

Keywords: Privacy, Data Protection, GDPR, CCPA, California Consumer Protection Act, California Effect, Brussels Effect, Delaware Effect, Regulatory Competition

Suggested Citation

Chander, Anupam and Kaminski, Margot E. and McGeveran, William, Catalyzing Privacy Law (August 7, 2019). U of Colorado Law Legal Studies Research Paper No. 19-25. Available at SSRN: https://ssrn.com/abstract=3433922 or http://dx.doi.org/10.2139/ssrn.3433922

Anupam Chander (Contact Author)

Georgetown University Law Center ( email )

Washington, DC

HOME PAGE: http://Chander.org

Margot E. Kaminski

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship ( email )

Wolf Law Building
2450 Kittredge Loop Road
Boulder, CO
United States

William McGeveran

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://blogs.law.harvard.edu/infolaw

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