The Case for Data Privacy Rights (Or 'Please, a Little Optimism')

15 Pages Posted: 12 Mar 2022 Last revised: 17 Mar 2022

See all articles by Margot E. Kaminski

Margot E. Kaminski

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

Date Written: March 11, 2022

Abstract

This Essay makes the case, despite valid and extensive criticism, for including individual rights in data privacy laws. Individual rights are not sufficient by themselves, but they are necessary for data privacy. These rights reflect common and historic understandings of data privacy and why it matters to many. They instantiate the dignitary and autonomy theories of privacy that form the basis of privacy rights around the world. They may help insulate data privacy laws from First Amendment challenges. And they also serve an overlooked role as a component of governance— a necessary aspect of institutional design. That is, the version of data privacy law that drops individual rights and focuses only on centralized, often ex ante governance will encounter predictable problems that individual rights can in fact help resolve. We give up on individual rights at our peril. It’s not clear data privacy laws will be enacted, or succeed at regulating, without them.

Keywords: Privacy, Data Privacy, FIPS, Governance, Law and Technology, Computers and the Law

Suggested Citation

Kaminski, Margot E., The Case for Data Privacy Rights (Or 'Please, a Little Optimism') (March 11, 2022). Notre Dame Law Review online, Forthcoming, U of Colorado Law Legal Studies Research Paper No. 22-7, Available at SSRN: https://ssrn.com/abstract=4055627 or http://dx.doi.org/10.2139/ssrn.4055627

Margot E. Kaminski (Contact Author)

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

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

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