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CliftonMartinFirstPaper 4 - 02 May 2025 - Main.CliftonMartin
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The Flawed Legal Framework Surrounding U.S. Data Privacy Law & Consumer Control of Personally Identifiable Information | | | I. Consent as a Regulatory Tool & the Problem | |
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< | U.S privacy law is overly relies on consent, and that’s the foundational issue here. Within the current structure, the consent model assumes that consumers can make rational, informed decisions about how their data is collected and used. But in reality, privacy policies are nuanced, complex, and nebulous, and users often lack genuine autonomy if they want to access essential services. What exacerbates this problem is that the harms from data misuse (i.e. algorithmic bias, surveillance, commodification) are simply not confined to the individual who selects "accept," but are distributed across society. As a result, privacy is an issue that’s not personal, but ecological; it cannot be managed solely through individual transactions. As long as lawmakers treat consent as the primary mechanism of control, consumers will continue to be overburdened and under-protected. | >
> | U.S privacy law overly relies on consent, and that’s the fundamental issue here. Within the current structure, the consent model assumes that consumers can make rational, informed decisions about how their data is collected and used. But in reality, privacy policies are nuanced, complex, and nebulous, and users often lack genuine autonomy if they want to access essential services. What exacerbates this problem is that the harms from data misuse (i.e. surveillance and commodification) are simply not confined to the individual who selects "accept," but are distributed across society. As a result, privacy is an issue that’s not personal, but ecological; it cannot be managed solely through individual transactions. As long as lawmakers treat consent as the primary mechanism of control, consumers will continue to be overburdened and under-protected. | | | II. Lack of a Comprehensive Federal Privacy Statute | |
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< | Without an overarching, unified federal privacy statute, consumers are vulnerable and left to navigate an assortment of inconsistent industry-specific regulations that provide slim protections and prioritizes businesses and their operations over consumer control (i.e. The Health Insurance Portability and Accountability Act (HIPAA) for healthcare information and the Gramm-Leach-Bliley Act for financial statistics). These laws often adopt opt-out systems, placing the burden on individuals to prevent their data from being shared. The Gramm-Leach-Bliley Act exemplifies this priority misplacement as the act lets financial institutions share PII with third parties unless consumers actively opt out. This "default sharing" approach is a long way from being consumer friendly; consumers are blind to and lack knowledge of their rights and the technical understanding to navigate these opt-out measures. Ultimately, the absence of a federal privacy statute reflects a broader trend where the law expects individuals to protect themselves in a landscape they can’t control. | >
> | Without an overarching, unified federal privacy statute, consumers are vulnerable and left to navigate an assortment of inconsistent industry-specific regulations that provide slim protections and prioritizes businesses and their operations over consumer control (i.e. The Health Insurance Portability and Accountability Act (HIPAA) for healthcare information and the Gramm-Leach-Bliley Act for financial statistics). These laws often adopt opt-out systems, placing the burden on individuals to prevent their data from being shared. The Gramm-Leach-Bliley Act exemplifies this priority misplacement as the act lets financial institutions share PII with third parties unless consumers actively opt out. This "default sharing" approach is far from being consumer friendly; consumers are blind to and lack knowledge of their rights and the technical understanding to navigate these opt-out measures. Ultimately, the absence of a federal privacy statute reflects a broader trend where the law expects individuals to protect themselves in a landscape they can’t control. | | | III. Article III Standing Requirements and an Unrealistic Burden of Proof
The doctrine of standing under Article III of the United States Constitution restricts consumer privacy enforcement by requiring plaintiffs to demonstrate “a concrete and particularized damage,” creating an unrealistic standard for plaintiffs. This requirement disproportionately benefits defendants who control access to evidence needed to show harm, which only complicates litigation and discourages plaintiffs. |
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