These days, there seems to be a lot of energy around a federal comprehensive privacy law in the United States. When the US Congress started passing privacy laws in the 1970s, 80s, and 90s, it eschewed the route of passing a comprehensive privacy law, opting instead for the sectoral approach — passing a series of narrow industry-specific laws. Then, in the late 1990s and early 2000s, there was a brief debate in the US about passing a comprehensive privacy law, when a few companies suggested it. But most companies shot down the idea. They liked the sectoral approach. They were okay with being regulated by a patchwork of various federal and state privacy laws.
At the time, when discussing the issue at conferences and events, I said that this view was short-sighted. The rest of the world was starting to move toward a comprehensive privacy law. The patchwork of laws left many gaps and holes in privacy protection and had countless inconsistencies. Congress did nothing.
Congressional Paralysis and the Rise of the States
Since 2000, Congress has largely been unable to pass many privacy laws. It has largely passed amendments to existing laws, but it hasn’t passed many major pieces of sectoral privacy regulation, let alone a broader privacy law. Partisanship, as well as a lack of compromise and maturity, have rendered Congress unable to craft laws with the nuance and balance needed to address privacy and data security issues. During this time, the states have passed a blizzard of laws. Every state has passed a data breach notification law. States have passed countless privacy laws too — especially California.
A New Urge for Congress to Act
The EU’s General Data Protection Regulation (GDPR), which started being enforced in May 2018, and the passage of California’s Consumer Privacy Act (CCPA) have reignited the debate over a comprehensive federal privacy law. “It’s time,” many people are saying. Now, industry is crying out for a comprehensive federal law. In November 2018, in response to a call for comments on a federal privacy law by the NTIA, numerous companies responded by stating that they were now in favor of a federal privacy law.
But with this Congress, I think that a comprehensive privacy law is unlikely.