Geoff Manne on Federal Privacy Law

ICLE President Geoffrey A. Manne was quoted by StateScoop in a story about the proposed American Privacy Rights Act and how it could preempt state privacy laws. You can read the full piece here.

Geoffrey Manne, president and founder of the International Center for Law and Economics, said there’s an advantage to having a diversity of law. In a paper published last month by the American Enterprise Institute, he proposes preserving that diversity through a federal “choice of law” statute.

The “choice of law” statute, if added to APRA, would allow states to keep their privacy laws and prevent the federal law from preempting state authority. Businesses would be allowed their choice of which state’s privacy law they must follow.

“The idea was very much modeled on the state incorporation law, where the corporation picks the state in which it’s going to be incorporated, and it’s internal governance is governed by the laws of that state, no matter where it’s doing business, around the country,” Geoffrey Manne, an author of the paper and founder of the International Center for Law and Economics, told StateScoop.

An added benefit of the statute, Manne said, would be its encouragement of competition among states over their privacy statutes and among businesses over their privacy practices. This would also allow the more tailored privacy laws — such as the Illinois BIPA or the Washington My Health My Data Act — to make operating within certain states more appealing to the covered businesses.

Manne said he’s not in favor of undoing state efforts to regulate data privacy, but he’s skeptical of a federal privacy law that isn’t flexible enough to meet the varying needs of states.

“Neither all consumers nor all businesses have the same kind of privacy risks and preferences,” Manne said. “As a practical matter, it’s very hard to to prescribe rules that are optimal for 330 million people. And that’s true with all law. Instead, you could end up with a lot of different sort of much more tailored privacy regimes, and the opportunity for companies to kind of match their needs with privacy regimes being offered.”