Privacy Localism

By Rubinstein, Ira S. | Washington Law Review, December 1, 2018 | Go to article overview

Privacy Localism


Rubinstein, Ira S., Washington Law Review


Both Seattle and New York City have enacted or proposed (1) a local surveillance ordinance regulating the purchase and use of surveillance equipment and technology by city departments, including the police, and (2) a law regulating city departments' collection, use, disclosure, and retention of personal data. In adopting these local laws, both cities have sought to fill two significant gaps in federal and state privacy laws: the public surveillance gap, which refers to the weak constitutional and statutory protections against government surveillance in public places, and the fair information practices gap, which refers to the inapplicability of the federal and state privacy laws to government records held by local government agencies.

Filling these gaps is a significant accomplishment and one that exhibits all of the values typically associated with federalism such as diversity, participation, experimentation, responsiveness, and accountability. This Article distinguishes federalism and localism and shows why privacy localism should prevail against the threat of federal and-more importantly-state preemption. This Article concludes by suggesting that privacy localism has the potential to help shape emerging privacy norms for an increasingly urban future, inspire more robust regulation at the federal and state levels, and inject more democratic control into city deployments of privacy-invasive technologies.

INTRODUCTION

Over the past decade, the U.S. Congress has largely abdicated its role in regulating online consumer privacy or modernizing electronic surveillance laws to strengthen privacy protections in the context of emerging technologies. Congress enacted many important privacy laws from the 1970s through the 1990s, and updated several of them in the 2000s, but since then its privacy accomplishments have dwindled.1 Both Democrats and Republicans have introduced comprehensive online consumer privacy bills but have not passed any of them.2 Despite five years of debate, Congress has also failed to update the Electronic Communications Privacy Act (ECPA), the thirty-two-year-old law governing electronic surveillance.3 Congress has fared somewhat better in reforming foreign intelligence surveillance following the revelations of former National Security Agency (NSA) contractor Edward Snowden. For example, it ended bulk collection of telephone metadata under the NSA foreign surveillance law.4 But the era of reform did not last. During the first year of the Trump presidency, the Republican Congress voted to rescind Obama-era broadband privacy rules,5 and at the beginning of its second year rejected a bipartisan push to add new privacy protections to a provision of the foreign surveillance law that was about to expire.6

During this period, state legislatures have been very active and successful in addressing consumer security and privacy. As of 2017, almost all fifty states have enacted breach notification statutes requiring firms to disclose security breaches involving personal information and a few have set substantive requirements for data security.7 But states have done more than fill the gaps in federal privacy laws.8 They have expanded online privacy protections,9 regulated private- and public-sector use of emerging technologies,10 and enacted social media privacy laws.11

Now there is a new kid on the block: local privacy law and regulation. Local governments (primarily cities but also counties) have joined federal and state governments in enacting important new privacy laws.12 This development has yet to receive attention even in the newest editions of privacy law casebooks and treatises. And the reason is obvious: until recently, cities played only a minor role in information privacy law. But this is beginning to change for several reasons.

American cities, especially large urban centers, are data-rich environments. Cities have large populations and city dwellers generate a vast amount of data through daily interaction with devices and sensors as they crisscross public spaces and utilize city services. …

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