Federalism is a state system that makes a territory affected by two levels of government: central and local. Unlike a unitary state government, where the central government decides every law and its implementation, a federalist country allows a certain level of independence for the local administration. The United States of America is an example of a federalist country. Each state can make self-directed decisions in lawmaking as long as they do not cross the Constitution. While the central government still has power, each state has its own level of freedom.
When it comes to privacy rights, they have always been understood as stepping stones of a free country. Even back in the 1700s, the rights to one’s privacy were already set up when the government ratified the Constitution. The Fourth Amendment solidified the importance a person’s privacy has and that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (U.S. Const. amend. IV, 1787). The U.S. government has implemented more laws to protect privacy laws ever since. The public interest in protecting the privacy laws has only spiked in recent decades once the new age of IT and web social presence came to be, and some parts of the country demand further expansion of the said laws.
While both of these factors are part of the very foundation of modern American society, they can clash when it comes to real-life implementations. It is still to this day a hotly debated subject and the discussion is unlikely to cease any time soon. Although federalism allows a country to be more flexible when it comes to regional lawmaking, it also is questionable whether that leaves a positive impact on privacy rights as such laws should be universal.
Positive Impact of Federalism on the Privacy Laws
The United States of America is made of 50 states with unique political environments, and federalism allows each state to make its own spin on the privacy law as it sees fit. The central government has its own level of authority, but it is not an absolute one. Thus, a state can create, change, and evolve the privacy laws should it decide to without having to copy the federal law. As a result, some states offer more detailed and secure privacy laws than others, and it helps lawmakers to compare how their and their neighboring states dare in this matter. This creates a political environment in which some states can serve as an example for others when it comes to modifying and enhancing the privacy laws across the country if needed.
A recent example of this would be California Consumer Privacy Act (CCPA), which was signed in January 2018. CCPA was created in order to enhance and protect Californian residents’ privacy rights in terms of data being gathered online by businesses and third parties. This new law protects a person’s rights to their private data and makes it their decision what can be done with the said information. This act allows a person to have a right to know what personal data is being collected about them, say no to the sale of personal data, and not be discriminated against for exercising their privacy rights (De La Torre, 2018). Examples like this provide much-needed depth and flexibility when it comes to the privacy laws as they can pass faster than the federal laws which are rather general and do not accommodate for the newer age of online information spread.
Negative Impact of Federalism on the Privacy Laws
Although allowing states to dictate how laws can have a positive effect, it also has a negative side. Just as allowing local administration to work on laws independently can have positive effects, it can also allow it to stall and refuse to change even when faced with solid evidence that it needs to. The recent pandemic demonstrated how independence from one another and lack of enforced federal law can lead to disarray in crucial times, rather than flexibility.
Even though California Consumer Privacy Act can be seen as an example of federalism positively affecting the privacy laws, it is not an example followed in practice. CCPA is the only one of two acts of this kind passed in all 50 states; the other state to follow its example is Virginia as it signed the New Consumer Data Protection Act in March 2021. As public concerns about major companies selling people’s private data keep on rising in numbers and scope, it is incomprehensible that the creation of new laws is moving at such a slow pace. This is not the only example of federalism harming lawmaking rather than enhancing it.
The recent COVI-19 events have shown that federalism inaction may lead to more disarray than advancement. When the pandemic reached American borders, the central government let the States decide which policies to enforce in order to combat the disease. It demonstrates another trend of delegating decision-making to the states themselves even when it comes to issues, which affect the whole country, such as environmental issues (Konisky & Woods, 2018). While the central government made some recommendations, state laws have not always worked in tandem with these. When rolling out laws and rules to combat the spreading pandemic, some states operated slower and worse than others did. As Kettl (2020) emphasizes that the central government avoided establishing “a national strategy on what was clearly a national problem”. This lack of coordination did not help to stop the spread of disease and only slowed down the effectiveness of the overall efforts.
While federalism allows better flexibility when referring to cases and things extremely varied by the location, it may not be a suitable thing when it comes to national-level tasks and issues. Fossum and Jachtenfuchs (2017) highlight that countries such as the UK, which operate on a unitary style of government, have shown better response to the crisis as their laws are uniform for all regions within these countries. A pandemic that affects people indiscriminately may be an obvious example, but the privacy laws are not that different in this case. It is questionable whether citizens’ rights to privacy should vary depending on their place of residence; whether residents of Alabama should have different rights than those of Alaska. What is the difference between them that justifies different types of privacy laws? As the Constitution defines for all people to be equal, it seems questionable that mere state location should affect a person’s right to privacy so drastically: a right, which should be universal for all.
As one can see from these examples, federalism can affect privacy laws in both negative and positive ways. It is a complicated subject that requires more discussion and research, but it is already possible to determine specific points. In terms of positive effects, it can grant greater flexibility and allow states not to be constrained by the central government or other states in lawmaking. It also allows some states to practice better and more precise privacy laws, enabling them to do better when protecting people’s rights to one’s privacy. However, the negatives outweigh the positives in times of crisis: when the country needed to be united, each state was left to its own devices. As the CPPA formation also demonstrated, it can let states stagnate and refuse to evolve and change when there is a dire need for better online protection laws. While federalism is an essential part of the USA government system, to make laws about a universal human right to one’s privacy so state-dependent is a questionable design choice.
Constitution, U. S. (1787).
De La Torre, L. F. (2018). A guide to the California Consumer Privacy Act of 2018. Santa Clara University.
Fossum. J. E., & Jachtenfuchs, M. (2017). Federal challenges and challenges to federalism. Insights from the EU and federal states. Journal of European Public Policy, 24(4), 467-485. Web.
Kettl, D. F. (2020). States divided: The implications of American federalism for Covid‐19. Public Administration Review, 80(4), 595-602. Web.
Konisky, D. M., & Woods, N. D. (2018). Environmental federalism and the Trump Presidency: A preliminary assessment. Publius: The Journal of Federalism, 48(3), 345-371. Web.