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

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