Clay Northouse, Jennifer Archie, Jim Harper, Cam Kerry
Since 2019, we have witnessed an explosion of privacy regulations in the States. We are now up to 19 comprehensive U.S. state privacy laws, and numerous additional state privacy laws govern additional aspects of privacy, such as health data, children’s data, and social media data. In many respects, the current expansion of state privacy laws mirrors the adoption of 50 state data breach notification laws that occurred a decade prior, but the current environment is much more complex with myriad opt-in and opt-out requirements, different exemptions for different types of entities, different specific provisions relating to sensitive data, overriding requirements relating to a technical solutions, and other complications, making it extraordinarily difficult for entities to operate in the U.S. market. At the same time, Congress has been struggling to pass a comprehensive federal privacy law, and debates remain unresolved regarding the proper privacy standards the federal government should set and whether the federal government should preempt the states. Additionally, the Federal Trade Commission has been seeking to exercise expansive jurisdiction over privacy, AI, and cybersecurity issues, and has been moving forward with its own regulations. This panel will explore the proper role of the federal government and the states in regulating privacy and what that right balance between the federal government and the states might be. Panelists will explore core issues relating to: should there be preemption of state privacy laws?; should the federal government act as a floor or a ceiling in regulating privacy law? who should maintain enforcement authority? what should the role of the FTC be?; and other core issues relating to the future of U.S. privacy law.
Clay Northouse, Partner, Latham & Watkins
Jennifer Archie, Partner, Latham & Watkins
Jim Harper, Nonresident Senior Fellow, American Enterprise Institute
Cam Kerry, Tisch Distinguished Visiting Fellow, Brookings Institute
Reading Materials:
- Op-Ed: A federal privacy law could do better than California’s
- Bridging the Gaps: A path forward to federal privacy legislation
- Will California be the death of national privacy legislation?
- A Choice-of-Law Alternative to Federal Preemption of State Privacy Law
- Should Federal Privacy Legislation Preempt State Law?
