States’ Rights vs. National Privacy Law

When it is convenient, politicians support states’ rights. Mostly, states’ rights is a dog whistle. One more time, coincidentally, just a few months before a presidential election, Congress is talking about passing a national privacy law.

The bill they are proposing would preempt stronger (and weaker) state privacy laws – something that the states are not too keen on.

In fairness, companies would like to have a single law to comply with.

One of the big questions about any national privacy law is whether it should be a privacy floor or a privacy ceiling. Its not like this concept has not been around for a while. HIPAA, the national healthcare privacy law is a floor. States can enact stronger laws if they want to. Gramm-Leach-Bliley, the law that protects the privacy of your financial information is a floor too.

But somehow, at least some Congresspeople say, that doesn’t work for general consumer privacy. There are only about a dozen states that have second generation privacy laws currently in effect (another half dozen or so have ones that will go into effect in the next year or two).

Rather than giving people in the 38 states that do not currently have the benefit of state privacy laws today improved privacy rights, Congress is proposing to take away privacy rights from people in the dozen or so states that do have strong privacy rights.

You could say that they are trampling the states’ rights of all 50 states – those states that have decided not to have a strong privacy law will have one shoved down their throat and those with a stronger (than the proposed federal law) privacy law currently in place will lose those rights under the proposed law.

It is also important to remember how the sausage making process works. Just because a bill looks good now doesn’t mean that the lobbyists who wrote it won’t insert exceptions for the people who write their checks before it gets approved.

15 Attorney’s General have signed a letter opposing it. In an election year. Not a good omen for politicians whose paychecks depend on keeping voters more or less happy.

It is also not clear that Congress will do anything, even in an election year. Passing such a bill could be a lose-lose for Congress, upsetting both sides of the argument – those that want a stronger law and those that don’t want any federal law. Stay tuned. Credit: The Record

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