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  • Reforming the U.S. Approach to Data Protection and Privacy | Council on Foreign Relations;
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A more comprehensive legal framework is needed: one that offers a mix of incentives for better security practices, disclosures, and individual protections. The twenty-first-century economy will be fueled by personal data. But it is not yet clear what rules will govern this information, with whom information will be shared, and what protections will be put in place.

The Framers’ Constitution : Democracy Journal

A baseline data-protection law would provide a legal framework for answering these questions. Such a proposal is not new. The FIPPs are generally thought of as processes and procedures that organizations should implement; the Privacy Bill of Rights recognized that individual Americans have an ongoing interest in how information about them is collected, used, and shared by companies and government entities alike. The rights proposed by the Obama administration were widely embraced by the advocacy community and civil society. Enamored with Silicon Valley, the administration largely let the industry craft its own rules , and a draft legislative bill was quietly put forward only three years after the initial proposal.

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Since then, data practices across all industry sectors have continued to fall short of individual privacy and security expectations. The Donald J. While the U. In contrast to U. This puts U.

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  6. The U. Congress should join other advanced economies in their approach to data protection by creating a single comprehensive data-protection framework. Meaningful federal laws and regulations should seek to resolve the differences among the existing federal and state legal rights and responsibilities.

    This would not only simplify compliance for U.

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    Congress could implement an effective baseline privacy regime with at least the following four qualities. First, the law should cover all institutions, not just tech companies, credit-rating agencies, and other narrow sectors of the economy.


    Data protection is not only part of corporate social responsibility in a digital age, it is also both an institutional risk and an essential compliance function for any organization that collects, uses, or shares personal information or other potentially sensitive consumer data. Second, the law should harmonize the inconsistencies and fill the gaps created by the existing sectoral approach.

    Health information is sensitive regardless of whether it is input into a consumer application, generated by a wearable device, or conveyed to a medical professional. Third, incentives for companies to protect data should skew toward prevention, rather than self-flagellating disclosures. Disclosure after the fact only helps the legal and compliance industries that have cropped up in the wake of recent breaches. By the time a breach is disclosed, harm could already have befallen hundreds of thousands, if not millions, of individuals.

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    When these mechanisms are backed by the force of law, companies are put on notice that they need to prioritize data security, which in turn gives privacy and security professionals and consumer advocates more leverage to push for better industry practice. Fourth, the U. A simpler and more comprehensive approach to individual digital dignity is warranted, especially after this past year of increasing magnitude of breaches and digital stewardship failures.

    Convention to propose amendments to the United States Constitution - Wikipedia

    A baseline privacy framework could ensure that all companies become responsible and ethical stewards of data, bring the United States in line with global standards, and better protect the data of U. The Council on Foreign Relations takes no institutional positions on policy issues and has no affiliation with the U.

    All views expressed in its publications and on its website are the sole responsibility of the author or authors. In Brief by Steven A. Cook October 7, In Brief by Stephen Sestanovich October 4, Backgrounder by Jonathan Masters August 12, In Brief by Brad W. Setser August 8, Put simply, the majority recognized in Carolene Products that courts should not be so quick to defer to the outcome of the political process when there is good reason to believe that that process itself may have been tainted.

    The Court added another element to this understanding in Skinner v. Oklahoma , in which the Court invalidated a law authorizing compelled sterilization. Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime ; when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when they substantially restrict the exercise of constitutionally protected rights.

    This, too, is an essential tenet of principled constitutionalism. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both necessary and proper. For the past half-century, however, conservatives have argued that the Supreme Court has gone too far in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention.

    But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation by conservatives would abdicate a fundamental responsibility that the Framers entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system. It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.

    Originalism, however, is fundamentally flawed. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations which were both strongly regulated and highly distrusted at the time had a constitutional right to spend unlimited capital to influence political elections.

    The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time.

    But this view erroneously attributes to the Framers a narrow-mindedness and shortsightedness that belies their true spirit. Moreover, originalism ignores that those who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution.

    This is not to say, however, that the views of the Framers are irrelevant.

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    To the contrary, their values, concerns, and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. That is central to any theory of principled constitutionalism. We have now entered a new and even more troubling phase of conservative constitutional jurisprudence.