Real Federalism

The advantages of federalism for privacy protection                         Back to NCPA Debate Home Page

Fifty State Privacy Laws May be Better Than One Federal One   High school debaters are often so familiar with the basics of the federalism argument, they don't take it seriously. Yet the arguments for federalism on the privacy topic are powerful and multifaceted. For general backgound and lots of evidence on federalism arguments, see the American Enterprise Institute's Federalism Project web site. Click here for link to site. The headline article now (2/9/2001) on the Federalism Project web site is: "Feds: Stay Away from those Cookies Federalism Project authors Kobayashi and Ribstein inveigh against national privacy laws--consumers and businesses are better served by flexible, competitive, state based internet. " The Federalism Project web site also includes great impact cards for debates, with some of the best written by Steven Calbresi (thanks to Gary Leff of the Mercatus Center for this recommendation). The general concern about federalism with privacy laws is explained by David Beers: "Even if online privacy regulation offers potential benefits, why do we need a federal law? The question is answered with another question that's presumed to be rhetorical: how can companies that do business on the World Wide Web be expected to operate in a legal market where every state has different laws? Surprisingly, two legal scholars respond that this would be a superior way to regulate privacy. " To summarize the argument made by privacy federalism advocates: "Courts should enforce choice of law and choice of forum clauses in privacy policies. What that means is that if a California resident signs up for AOL service and later sues the company for privacy violations or other wrongdoing, the case must be brought in a Virginia courtroom." States would be free to experiment with a variety of regulatory systems during the evolution of internet technology and commerce&emdash;a flexible arrangement more likely to produce good law than a federal law that locks one regime in place for all. Click here for direct link to Wired magazine article. The Wired article is also linked to from the Federalism Project web site. Click here to go to Federalismproject.org. Highly recommended for evidence on federalism is the book by Michael S. Greve, Real Federalism: Why it Matters, How it Could Happen. (AEI Press, March 1999, 201 pages).