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An effort by two U.S. Senators to cement a broad series of privacy protections into federal law came under fire last week when a legislative analysis from the Electronic Frontier Foundation (EFF) suggested that it might override numerous state laws that offer even stronger safeguards for consumer information.
The Kerry-McCain "Commercial Privacy Bill of Rights," according to Tien's analysis, does not establish a baseline or "floor" for states to build stronger privacy protections. It instead erects a legislative "ceiling" for privacy protections and expressly preempts many state laws that try to address some of the same problems.
He also suggests the bill would make it more difficult for consumers harmed by breaches of privacy to sue the offending parties, and that some privacy enforcement may end as the bill would shift responsibilities away from local governments and municipalities and onto state attorneys general.
"There are reasons why many companies like a stronger or broader preemption [of state laws], because they would prefer there's a single set of rules that cover everything so they don't have to deal with a lot of different laws," Tien added. "On the other hand, privacy and consumer advocates have tended to believe that over-preemption is a dangerous thing."
"Different pieces of legislation related to interstate commerce place different levels of preemption on state law. Ours is the only bipartisan, comprehensive privacy bill under consideration today."