The IAPP article, “US federal privacy preemption part 1: History of federal preemption of stricter state laws,” written by Alston & Bird Senior Counsel Peter Swire and published on January 9, 2019, discusses the potential for a general U.S. privacy law and whether and to what extent this new federal law would “preempt” state privacy protections. This article, the first of two parts, primarily focuses on the history of federal privacy legislation. Swire looks at the arguments for and against a general federal privacy law in light of the historical trends of federal privacy legislation to facilitate an understanding of the current federal privacy law debate.
The article first summarizes common arguments from both traditional advocates and opponents of a general federal privacy law. The article then provides a timeline of key federal privacy legislation leading up to this current debate and divides that timeline into three distinct sections: (1) the late 1970s to the early 1990s, (2) the mid to late 1990s, and (3) the late 1990s to the early 2000s.
The first section of the timeline gives examples of the many U.S. privacy statutes that did not preempt stricter protections under state law. The second section focuses specifically on the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act, which are based on the underlying rationale that states should have the ability to offer greater protection of rights to their citizens, and do not preempt state law. The third section focuses primarily on the Children’s Online Privacy Protection Act of 1998, the CAN-SPAM Act that was passed in 2003, and the 1996 and 2003 updates to the Fair Credit Reporting Act. Swire then examines these three examples in detail and explains how they demonstrate that preemption has become more common due, in large part, to practical politics and industry’s push for preemption to be included with new federal rules.
Peter Swire is the Elizabeth and Tommy Holder Chair of Law and Ethics at the Georgia Tech Scheller College of Business, and Senior Counsel with Alston & Bird LLP. In 2013, he served as one of five members of President Obama’s Review Group on Intelligence and Communications Technology.