An effort by two U.S. Senators to cement a broad series of privacy protections into federal law came under fire last week when a legislative analysis from the Electronic Frontier Foundation (EFF) suggested that it might override numerous state laws that offer even stronger safeguards for consumer information.
Contacted by Raw Story, Sen. John Kerry (D-MA) — who is cosponsoring the bill with Sen. John McCain (R-AZ) — begged to differ, arguing that their proposals would not represent “a step backwards” for privacy rights.
But EFF attorney Lee Tien isn’t so sure.
The Kerry-McCain “Commercial Privacy Bill of Rights,” according to Tien’s analysis, does not establish a baseline or “floor” for states to build stronger privacy protections. It instead erects a legislative “ceiling” for privacy protections and expressly preempts many state laws that try to address some of the same problems.
“It’s a comprehensive [privacy] bill and therefore it reaches far more broadly [than state laws],” Tien told Raw Story in a telephone interview. “So, the footprint of the preemption is naturally pretty broad.”
In his analysis (PDF), Tien describes numerous laws, namely in California, that could be preempted by the Kerry-McCain proposals. Those laws apply to things like video rental histories, telephone records, personally identifying consumer financial data and other information both online and offline.
He also suggests the bill would make it more difficult for consumers harmed by breaches of privacy to sue the offending parties, and that some privacy enforcement may end as the bill would shift responsibilities away from local governments and municipalities and onto state attorneys general.
“We’re trying to get a picture of what this looks like from state to state,” he said. “The preemptive scope of the bill runs generally toward personal information. [EFF's] memo cites a number of laws in California that address the personal information for police officers, battered women’s shelters — you can think of all sorts of personal information that might have been protected in one way or another by the law” which may be overridden.
“There are reasons why many companies like a stronger or broader preemption [of state laws], because they would prefer there’s a single set of rules that cover everything so they don’t have to deal with a lot of different laws,” Tien added. “On the other hand, privacy and consumer advocates have tended to believe that over-preemption is a dangerous thing.”
Reacting to the analysis, Sen. Kerry said that he respects the EFF, but that the concern may be misplaced.
“No one can argue that a patchwork of state laws, none of which are comprehensive, can possibly protect consumers in the Information Age which by definition knows no borders,” Kerry told Raw Story in an email exchange. “Local and state laws by definition can’t provide the new, universal protections in our Bill of Rights or possibly cover the same scope of activity.
“I respect EFF, but nowhere in their analysis does it say our bill would be a step backwards for privacy rights. The net result is, by any standard, is a net positive. That is why respected consumer privacy advocates from Consumers Union to the Consumer Federation of America and the Center for Democracy and Technology all support our bill.
“Different pieces of legislation related to interstate commerce place different levels of preemption on state law. Ours is the only bipartisan, comprehensive privacy bill under consideration today.”
Reached for comment, Sen. McCain’s staff had no statement regarding EFF’s analysis.
Stephen C. Webster
Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.
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