American Privacy Law at the Dawn of a New Decade (and the CCPA and COVID-19): Overview and Practitioner Critique
Marquette Intellectual Property Law Review, Forthcoming
49 Pages Posted: 4 Aug 2020 Last revised: 7 Aug 2020
Date Written: July 22, 2020
This article has been prepared by experienced practitioners in the privacy area, who are interested in not only the 'how' of privacy law, but also the 'why', namely whether existing authority serves a valid social purpose and whether it does so efficiently relative to the cost that it imposes. The article was prompted by the effectiveness of the California Consumer Privacy Act. It also includes substantial discussion of the major privacy considerations associated with actual and potential responses to the COVID-19 situation, and how such considerations must be weighed against the public health considerations.
The discussion encompasses all aspects of US privacy law from breach notice obligations to limitations on tracking internet use of children and the CCPA and similar law and informal guidance. It touches upon the EU's GDPR.
Two of the unique attributes of the piece are the presentation of various informal sources of authority such as Federal Trade Commission consent orders and handbooks and the extensive granular author critique from both a theoretical and practical point of view of the various authorities, as well as a separate discussion of the optimal manner for policy-makers to give effect to privacy considerations in connection with mandated COVID-19 responses.
Keywords: privacy law, CCPA, COVID-19, law school scholarship, public law
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