36 Pages Posted: 6 Apr 2005
Date Written: April 5, 2005
This version incorporates and responds to the many comments that we received to Version 1.1, which we released on March 10, 2005.
Privacy protection in the United States has often been criticized, but critics have too infrequently suggested specific proposals for reform. Recently, there has been significant legislative interest at both the federal and state levels in addressing the privacy of personal information. This was sparked when ChoicePoint, one of the largest data brokers in the United States with records on almost every adult American citizen, sold data on about 145,000 people to fraudulent businesses set up by identity thieves. Other companies announced security breaches, including LexisNexis, from which personal information about 32,000 people was improperly accessed. Senator Schumer criticized Westlaw for making available to certain subscribers personal information including Social Security Numbers (SSNs).
In the aftermath of the ChoicePoint debacle and other major information security breaches, both of us have been asked by Congressional legislative staffers, state legislative policymakers, journalists, academics, and others about what specifically should be done to better regulate information privacy. In response to these questions, we believe that it is imperative to have a discussion of concrete legislative solutions to privacy problems.
What appears below is our attempt at such an endeavor. Privacy experts have long suggested that information collection be consistent with Fair Information Practices. This Model Regime incorporates many of those practices and applies them specifically to the context of commercial data brokers such as ChoicePoint. We hope that this will provide useful guidance to legislators and policymakers in crafting laws and regulations. We also intend this to be a work-in-progress in which we collaborate with others. We have welcomed input from other academics, policymakers, journalists, and experts as well as from the industries and businesses that will be subject to the regulations we propose. We have incorporated criticisms and constructive suggestions, and we will continue to update this Model Regime to include the comments we find most helpful and illuminating.
Notice, Consent, Control, and Access
1. Universal Notice
2. Meaningful Informed Consent
3. One-Step Exercise of Rights
4. Individual Credit Management
5. Access to and Accuracy of Personal Information
Security of Personal Information
6. Secure Identification
7. Disclosure of Security Breaches
Business Access to and Use of Personal Information
8. Social Security Number Use Limitation
9. Access and Use Restrictions for Public Records
10. Curbing Excessive Uses of Background Checks
11. Private Investigators
Government Access to and Use of Personal Data
12. Limiting Government Access to Business and Financial Records
13. Government Data Mining
14. Control of Government Maintenance of Personal Information
Privacy Innovation and Enforcement
15. Preserving the Innovative Role of the States
16. Effective Enforcement of Privacy Rights
Keywords: Privacy, legislation, regulation, ChoicePoint, information, security, data
JEL Classification: K10, K20
Suggested Citation: Suggested Citation
Solove, Daniel J. and Hoofnagle, Chris Jay, A Model Regime of Privacy Protection (Version 2.0) (April 5, 2005). GWU Law School Public Law Research Paper No. 132; GWU Legal Studies Research Paper No. 132. Available at SSRN: https://ssrn.com/abstract=699701 or http://dx.doi.org/10.2139/ssrn.699701