Colorado becomes third state to enact major consumer privacy law; will Congress react?

by Jeff Sovern

Bloomberg Law has the story here (possibly behind pay wall). The first was California, and the second was Virginia. Others are likely to follow. The more states that enact privacy laws, the more businesses are likely to complain that they are encountering compliance difficulties and expense complying with the different laws. They will probably push Congress harder to enact a national privacy law that would preempt state privacy laws. Thus far, the negotiations in Congress over enacting a privacy law have foundered over disagreement on two main issues: whether such a law should provide for a private claim and whether it should preempt state laws. My own view, for what it's worth, is that this is an instance where we should let Justice Brandeis's view of the states as laboratories operate for at least a while longer. As technology advances, the law's response should also keep pace, and if Congress acts enacts a law now, it will freeze the law's response as of now, so that the law will lose the ability to adapt to the new technology. And if you think Congress will pass a new law as technology evolves, just think about the fact that the Fair Debt Collection Practices Act still regulates the use of telegrams in debt collection.

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