Geoffrey Manne on an Alternative to Federal Preemption of State Privacy Law

Geoffrey A. Manne June 2, 2026

In an American Enterprise Institute report, Jim Harper and ICLE President Geoffrey A. Manne propose an alternative to federal preemption of state privacy law. Rather than imposing a single national privacy standard, they argue that Congress should allow companies and consumers to choose which state privacy law applies through contractual choice-of-law provisions. Read the full report here.

Key Points

• Preempting state law has been a staple of the debate about privacy regulation in the United States, pitting state power under the constitutional design against perceived efficiency in regulation.
• A federal statute requiring states to recognize contractual choice-of-law provisions would allow businesses to avoid a regulatory patchwork while fostering a dual competition: among states over their privacy statutes and among businesses over their privacy practices.
• Such competition would help discern consumers’ true interests in privacy versus other goods, and it could spur states to specialize in privacy.
• The precise contours of a federal limitation on states’ treatment of contractual choice-of-law provisions must be determined, but sample language can be drawn from existing legislation.