Whether it’s your personal data or a national security database, privacy laws are essential. They provide guardrails to prevent misuse.
They help to balance the twin imperatives of corporate profit and national security. These laws also protect individual consumer rights. Some examples include the COPPA, CPRA, and GDPR laws.
The U.S. Constitution
The Constitution plays a crucial role in determining privacy law. It establishes certain privacy rights, including the right to life and liberty, protection of property, and the freedom from entangling searches and seizures. The Constitution also limits the power of government to invade private privacy. For example, the Fourth Amendment states that “no one shall be subject to a search and seizure of his person, his papers, or his effects without reasonable cause, nor be denied the equal protection of the laws.”
In addition, the Constitution guarantees privacy rights in civil law and criminal law. It protects private property, prohibits cruel and unusual punishments, provides for a fair trial, and bars double jeopardy. It also ensures that no person will be forced to testify against himself in a court of law.
Many state constitutions include privacy rights as well, and they provide the foundation for most privacy legislation in the United States. These constitutions define the meaning of personal information, limit its dissemination, and regulate the use of an individual’s name and likeness for commercial purposes.
Legislative findings are important for privacy legislation because they help to build congressional support and enunciate key governmental objectives. They also serve as a record that will inform judges, regulators and lawyers who apply the legislation. They may also help to shield the legislation from constitutional challenges, such as those based on First Amendment commercial speech protections or Article III standing questions.
The Privacy Act of 1974
The Privacy Act of 1974, also known as the Buckley Amendment, was created in response to growing concerns about government surveillance and investigations of individuals. The Act safeguards an individual’s privacy by prohibiting unauthorized disclosure of personal information, requiring agencies to tell individuals what records they have on them, and giving people the right to request corrections or deletions of their information. It also requires agencies to follow certain principles, known as fair information practices, when collecting and handling personal data.
The Act defines a “system of records” as groups of data that are retrieved by an individual’s name or other identifying particulars. This definition, as well as exceptions for “law enforcement purposes,” means that many databases are not covered by the Act. In addition, a large number of government agencies have no staff that is trained to implement and enforce the Act.
In the years following the passage of the Privacy Act, a series of federal and state laws were passed to restrict the collection and use of personally identifiable information. Some of these laws, including the Family Educational Rights and Privacy Act of 1974 (FERPA), have helped to standardize privacy policies and create a more consistent and robust legal framework for protecting individual’s privacy. In addition, a series of court cases, such as Katz v. United States and Eisenstadt v. Baird, have ruled that the Fourth Amendment’s protections against unlawful searches and seizures apply outside the home and to other areas where a person has a reasonable expectation of privacy.
The Department of Homeland Security Act
As technology advances and data becomes more important to businesses, privacy law is becoming increasingly complex. Businesses must take steps to protect sensitive consumer and employee information. Privacy laws vary depending on the type of data being collected, where it is stored and how it is used. Several states and the federal government have established privacy laws that regulate the collection, processing and use of data.
Similarly, the Family Educational Rights and Privacy Act of 1974 or Buckley Amendment safeguards students’ education records. The Children’s Online Privacy Protection Act of 1998, or COPPA, prohibits the online gathering of personal data from children in the United States, and requires operators of websites or online services directed to children to obtain parental consent before collecting such information. It also outlines rules for how to create and maintain website privacy policies.
The California Privacy Rights Act
Less than a year after California’s Consumer Privacy Act (CCPA) became the first comprehensive consumer data privacy law in the United States, voters approved Proposition 24, which creates the California Privacy Rights Act, or CPRA. The CPRA acts as an addendum to the CCPA, strengthening consumer privacy rights and tightening business regulations.
For example, the CPRA states that a business or website must state the purpose for which personal information is collected. The CPRA also limits the amount of time a business may retain personal information after collection. Finally, the CPRA requires that companies disclose whether or not the personal information they collect is “sensitive” and offers users the right to opt out of any use or sale of this information.
In addition, the CPRA makes it a violation for businesses to retaliate against consumers who exercise their data privacy rights. It also expands the scope of data that is covered by a private right of action for a breach, including adding consumer login credentials to this list.
The CPRA comes into effect on January 1, 2023, but actual government enforcement won’t start until July 1, 2023. While this delay allows businesses to refine their compliance programs, a provision in the CPRA also gives them the opportunity to voluntarily demonstrate their adherence to CPRA regulations by being awarded a CPPA certification.