I’m thrilled that, the American Law Institute (ALI) has approved the Principles of the Law, Data Privacy. Professor Paul Schwartz and I were co-reporters on the project. According to the ALI press release: “The Principles seek to provide a set of best practices for entities that collect and control data concerning individuals and guidance for a variety of parties at the federal, state, and local levels, including legislators, attorneys general, and administrative agency officials.”
The project involves our attempt to create a comprehensive approach to data privacy for the U.S. that bridges the divide with the EU. For example, there are many provisions in the General Data Protection Regulation (GDPR) that are not as incompatible with U.S. law as one might think. We bring U.S. law most of the way there, but we preserve core commitments in U.S. law that cannot readily be made consistent with the EU approach. We also have some new approaches to certain issues that haven’t yet been tried in quite the same ways in other laws before, such as our approach to transparency and notice, as well as our approach to handling the identifiability of personal data. The Principles of the Law, Data Privacy is not an attempt to write our ideal privacy law as if drafting on a blank slate. Nor is it an attempt to restate existing law. Instead, it is something in between. We build on foundations in existing law, look for ways the law can be advanced progressively without clashing with core commitments or introducing concepts that are without precedent.
Thus, our goal has been to produce a balanced compromise, an approach to advance U.S. privacy law significantly without being radical. I am certain industry and advocates will find things they like and things that they wish were different. This isn’t the law I’d write if I were writing on a blank slate. But it is, I hope, a big step forward.
We hope this project is useful to legislatures working on privacy legislation, to other policymakers, and to everyone who is thinking about privacy law.
We want to thank our advisory group and the ALI members who contributed greatly to this project. The ALI process is a wonderful one — a thoughtful constructive discussion about how to craft meaningful regulation between practitioners, judges, and academics, among others.
The final draft will be released very soon. Paul and I will be posting the blackletter portion of the project. The entire document, which consists of our commentary, notes, and illustrations — including the support for and rationales behind the provisions — will be available from the ALI. Please stay tuned.
As a teaser, below is the table of contents