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The Flawed Legal Framework Surrounding U.S. Data Privacy Law & Consumer Control of Personally Identifiable Information
-- By CliftonMartin - 14 Apr 2025 | |
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< | The ability of consumers to assert control over their personally identifiable information (PII) is incredibly limited by the flawed and industry-centric nature of U.S. privacy law. The current legal framework is designed more to prioritize business interests than to empower consumers, resulting in inconsistent protections and significant barriers to enforcement. The law treats privacy as a matter of individual choice rather than a collective concern; it fails to address the broader, ecological nature of data harms, which ultimately extends beyond the consenting individual and affects communities, institutions, and social systems. There are a number of reasons for the United States’ failure of consumer protection, however, the primary obstacles stopping people from effectively controlling their PII include the fact that consent is viewed as a regulatory tool, the absence of an overarching federal privacy statute, restrictive Article III standing requirements, and the sweeping immunity offered under Section 230 of the Communications Decency Act. In order to address this shortcoming, privacy law and legislators should move beyond the consent based model that currently dictates the law to robust privacy standards, stronger enforcement, broader criteria for legal standing, and systemic accountability. | >
> | The ability of consumers to assert control over their personally identifiable information (PII) is incredibly limited by the flawed and industry-centric nature of U.S. privacy law. The current legal framework is designed more to prioritize business interests than to empower consumers, resulting in inconsistent protections and significant barriers to enforcement. The law treats privacy as a matter of individual choice rather than a collective concern; it fails to address the broader, ecological nature of data harms, which ultimately extends beyond the consenting individual and affects communities, institutions, and social systems. There are a number of reasons for the United States’ failure of consumer protection, however, the primary obstacles stopping people from effectively controlling their PII include the fact
that consent is viewed as a regulatory tool, the absence of an overarching federal privacy statute, restrictive Article III standing requirements, and the sweeping immunity offered under Section 230 of the Communications Decency Act. In order to address this shortcoming, privacy law and legislators should move beyond the consent based model that currently dictates the law to robust privacy standards, stronger enforcement, broader criteria for legal standing, and systemic accountability.
Proofreading?
| | | I. Consent as a Regulatory Tool & the Problem | | | To effectively address the flawed nature of U.S. privacy law and the limitations of a consent-based approach, lawmakers should seek a standards-based model of privacy protection. Within this system, there would be clear, enforceable rules that apply across industries and don't overly and unfairly rely on consumers to understand, manage, and opt-in to complex agreements and terms. A genuine consumer-focused strategy would involve universal standards that could be captured in a federal privacy statute, broader standing requirements that recognizes data misuse as a harm, and platform accountability that eliminates loopholes that grant providers sweeping immunity. Without this reformation, privacy will remain as a privilege for the informed and well-resourced, rather than a right enjoyed by all. | |
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The suggestion to move away from consent resulted in a shift of rhetoric. We can strengthen the draft in two directions. First, if we say about environmental regulation that it depends on standards rather than consent, we don't say enough without explaining how those standards are arrived at. A national privacy policy act, like NEPA, would then presumably depend on agency assessments of privacy impacts, justiciably created and reviewed, leading to rules based on current technological capabilities and risks, assessed in a rule-making structure formalizing the calculation of costs and benefits, like the clean air and water acts, etc. But that post-war model of regulatory expertise is now being disassembled by a change in political intention, which for the firs time in generations is anti-science and prefers government failure to activist pursuit of public good.
This brings the entire system of environmental regulation to its end, preferring instead precisely the form of "no-law" system, subsidizing private actors through immunity from legal responsibility to others in the society, which is the actual condition of US privacy law. Not an absence, as you continue to describe it, but the intentional removal of law as a check on the social cost of economic development, directly analogous to the form of subsidy to new economic power through immunities in the antebellum US classically described by Morton Horwitz in The Transformation of American Law. To understand what is happening in the Trump era, and what will follow, sharpening the analytic and historical context will certainly help. The spectacle of the oligarchs at his second inauguration will be the picture on which the historians of the future will depend for the illustration of this theme. Drawing the requisite conclusions is what the next draft here can do.
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