Principles for Privacy Legislation: Putting People Back in Control of Their Information

Four guiding principles for Congress to consider before crafting any online privacy legislation in order to create the strongest protections for consumers:

1. Americans deserve the right to own and control their personal information;
2. The context in which people share their personal information matters, and where individuals must provide their personal information to receive essential services -- for example, to generate a credit report necessary for nearly any major purchase -- that law should reflect the reality that the consumer has little choice by imposing a greater obligation to protect the information;
3. Americans need more privacy protection, not more privacy preemption. Federal law should recognize the vital role state privacy protections play rather than preempt them; and,
4. New privacy laws should be “backward compatible” with existing federal privacy law, rather than eliminate existing federal protections.

The paper traces the evolution of modern American privacy law from Supreme Court Justice Louis Brandeis’ seminal article, “The Right of Privacy,” to the existing enforcement regime by the Federal Trade Commission. The paper argues that as the digital age has progressed, the personal right of property has steadily eroded from a right to control one’s personal information to the modern framework which makes any control over one’s personal information dependent on privacy policies entirely controlled by companies collecting this information.