The impact of society’s digital integration is difficult to articulate. It suffices to say much of our lives are now digitized, and digital technologies have yielded immeasurable benefits to the individual and society at large. Change heralds challenge, and the digital paradigm-shift has brought challenges of comparable numerosity and magnitude. Privacy is at the forefront of those challenges. In recent years, the digital industry has been subject to increased scrutiny over the rising number of privacy scandals and perceived market failures related to the collection and use of individuals’ personal information. New technologies, market developments, and increases in public attention have culminated in widespread perceptions of privacy threats and abuses. Governments around the globe are responding by revamping their regulation of privacy and the digital industry. In stark contrast, the United States federal government has maintained its rudimental self-regulatory approach. A handful of states, spearheaded by California’s enaction of the California Consumer Privacy Act of 2018 (“CCPA”), have moved to fill the gap left by federal inaction. The scope of the CCPA is unrivalled by any previous United States privacy regulation, and with its activation date quickly approaching, industry actors have focused their lobbying efforts in Washington D.C. to the increasing reception of federal legislators. Any congressional action could have major repercussions for state and federal regulators’ ability to police the collection and use of citizens’ personal information, and accordingly, such action may redefine privacy in the United States. The present scenario raises important questions about federalism and novel informational privacy regulations. Few commentators have addressed the issue directly, and no one has done so recently. What role should the federal government and states play in addressing the privacy concerns of Americans? Should the federal government preempt the CCPA and its progeny in favor of active federal regulation of the digital industry’s collection and use of personal information? What are the consequences of allowing the CCPA and similar state laws to regulate the control of their citizens’ personal information? This Comment will explore such questions.
The Federalist Regulation of Privacy: The Happy Incidents of State Regulatory Activity and Costs of Preemptive Federal Action,
84 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol84/iss4/8