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Chapman Law Review

Data Privacy Federalism 3.0

Abstract

Federalism is a bedrock concept in the political organization of the United States. It is also a topic of intensive scholarly attention. Yet, compared to other areas of federalism, questions concerning personal data have received little notice. This Article’s analysis of data privacy federalism is organized around two topics: preemption (Data Privacy Federalism 1.0) and anti-commandeering (Data Privacy Federalism 2.0). It argues that recent developments have dramatically changed the landscape for preemption and federal-state data sharing, resulting in Data Federalism 3.0.

In Data Federalism 3.0, a number of developments have dramatically altered the past landscape for preemption. First, there has been an explosion of omnibus state privacy statutes. Second, there is a continuing lack of a federal omnibus privacy law and an almost complete absence of congressional privacy lawmaking at the sectoral level. This Article advocates for continuing state lawmaking on privacy matters and does so on federalism grounds. State lawmaking about data privacy is supported by the classic Brandeisian notion of the states as laboratories for innovative policymaking. In addition, there is the potential of states to serve as catalysts for bipartisan policy cooperation.

There have also been important recent developments concerning the sharing of personal data among different levels of government. These changes significantly implicate the anti-commandeering doctrine. Data-driven unilateral actions by the Trump administration toward the states represent “agonistic federalism,” to use a term recently coined by Professors Aziz Huq and Zachary Clopton. The executive branch has engaged in a hostile attack on the states by weaponizing personal data collected through federal-state programs. In response, this Article proposes that anti-commandeering provisions should extend to personal information. The states should develop this constitutional doctrine as part of their opposition to the Trump administration’s seizures of personal data. This Article’s main lesson is that the future of federalism depends on the rules for personal data sharing among the federal and state governments.

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