U.S. State Privacy Laws

America faces a data privacy crisis. For more than two decades, without any meaningful restrictions on their business practices, powerful technology companies have built systems that invade our private lives, spy on our families, and gather the most intimate details about us for profit. Through a vast, opaque system of databases and algorithms, we are profiled and sorted into winners and losers based on data about our health, finances, location, gender, race, and other personal characteristics and habits.

Despite wide recognition of these harmful practices, Congress has failed to pass a comprehensive federal privacy law. To fill this void, an increasing number of states have passed laws that aim to protect people’s privacy and security. However, these laws largely fail to adequately protect consumers. A report by EPIC and U.S. PIRG Education found that of the 14 states that have passed comprehensive consumer privacy legislation, nearly half received failing grades, and none received an A.

Weak, industry-friendly laws allow companies to continue collecting consumers’ personal data without meaningful limits. Consumers are granted rights that are difficult to exercise, and they cannot hold companies that violate their rights accountable in court. 

Big Tech has played a big role in the passage of weak state privacy bills. Of the 14 laws states have passed so far, the vast majority closely follow a model that was initially drafted by industry giants such as Amazon. In an analysis of lobbying records in 31 states that heard privacy bills in 2021 and 2022, the Markup identified 445 active lobbyists and firms representing Amazon, Meta, Microsoft, Google, Apple, and industry front groups. This number is likely an undercount.

Laws should not be written by the companies they regulate. Allowing Big Tech to shape our privacy rules enables them to consolidate their already outsized power in the economy and in our lives. Privacy rules should balance the scale in favor of the billions of people who rely on the internet in their day-to-day lives.

A strong comprehensive consumer privacy law would:

• impose meaningful data minimization obligations on companies that collect and use personal information – taking the burden off of individuals to manage their privacy online and instead requiring entities to limit their data collection to better match consumer expectations;
• strictly regulate all uses of sensitive data, including health data, biometrics, and location data;
• establish strong civil rights safeguards online and rein in harmful profiling of consumers;
• provide strong enforcement and regulatory powers to ensure the rules are followed; and
• enable consumers to hold companies accountable for violations in court.  

A better future is possible, and the tide is beginning to turn. Lawmakers are not satisfied with weak bills that protect Big Tech’s harmful business practices more than their constituents’ privacy. And after watching another failed congressional attempt to pass a national privacy law, state legislators realize this urgent issue is up to them to solve. 

In 2024, states including Illinois, Maine, Massachusetts, and Vermont considered strong legislation that would force changes to the abusive data practices driving commercial surveillance and online discrimination while allowing businesses to continue to innovate. Maryland passed a landmark state privacy law with strong data minimization provisions and a ban on the sale of sensitive data. We can have a strong technology sector while also protecting personal privacy. And EPIC is happy to work with state legislators who want to advance this vision. 

A Model: The State Data Privacy Act

With many states now having enacted similar privacy laws, we have heard from many lawmakers that they would prefer to strengthen existing state laws rather than enact an entirely new legislative framework. With this feedback in mind, EPIC and Consumer Reports crafted a model privacy bill, the State Data Privacy Act, that builds upon several existing state laws. The model bill takes the base text of the Connecticut Data Privacy Act (CTDPA), often cited by industry as a model for other states to adopt and incorporates additional privacy protections. 

CTDPA is far too weak, but it is an established bill that many state lawmakers are already familiar with. Strengthening the CTDPA provides consistency for businesses while giving consumers meaningful privacy protections.

We were pleased to work with our colleagues at Consumer Reports on this model legislation. The goals of the State Data Privacy Act are to:

• Limit ubiquitous online tracking;
• Encourage more privacy-protective methods of online advertising;
• Protect the most sensitive data, including data about kids and teens;
• Use language from existing state laws; and
• Allow for meaningful enforcement of the law to ensure compliance.

The State Data Privacy Act borrows existing language from strong state laws and federal bills wherever possible. Borrowing existing language reduces the chances of conflicts of law and, in many cases, also represents years of deliberation and stakeholder discussions. Because our organizations have been involved in privacy advocacy at the state level for many years, we are familiar with recurring patterns of contention and compromise between businesses and consumer privacy advocates. While this draft does not represent the ideal privacy bill for any of the signatory organizations, it is a compromise that would meaningfully protect consumers. 

The State Data Privacy Act has been endorsed by the Center for Democracy and Technology, the U.S. Public Interest Research Group, and Public Knowledge.  

Learn more about the State Data Privacy Act here. 

Sectoral State Privacy Laws

States also have a long history of passing privacy law focused on narrow topics of concern to their citizens. All 50 states have enacted data break notification laws. A number of states have regulated biometric data, genetic data, and health data privacy. Many states have enacted laws prohibiting the sharing on non-consensual intimate images. And states are increasingly regulating the development and use of artificial intelligence.

EPIC has expertise on these and many more privacy-related topics and are happy to be a resource to policymakers considering legislation on these topics. 

Preemption

About Preemption

In the context of legislation, preemption refers to whether a law restricts the authority of states, counties, or cities to enact or enforce their own policies. Preemption is an issue of legislative power–if the federal government preempts the states on a field of law, that action effectively expands the jurisdiction of Congress to the detriment of states and local governments. Congress’ power to preempt state and local laws stems from the Supremacy Clause of the U.S. Constitution.

Federal preemption can take two forms–federal floor and federal ceiling preemption. In most consumer and civil rights legislation, federal law serves as a floor of protections. This “federal floor preemption” only supersedes weaker state laws, and it allows states, counties, and local governments to pass stronger laws. Under federal floor preemption, federal law only supersedes state and local law that conflicts with or is contrary to federal law.

Historically Privacy Law Allows States to Provide Greater Protections

In privacy and consumer protection law, federal ceiling preemption is an aberration. Historically, federal privacy laws have not preempted stronger state protections or enforcement efforts. Federal consumer protection and privacy laws, as a general matter, operate as regulatory baselines and do not prevent states from enacting and enforcing stronger state statutes. The Electronic Communications Privacy Act, the Right to Financial Privacy Act, the Cable Communications Privacy Act, the Video Privacy Protection Act, the Employee Polygraph Protection Act, the Telephone Consumer Protection Act, the Driver’s Privacy Protection Act, and the Gramm-Leach-Bliley Act all allow states to craft protections that exceed federal law.

Although the federal government has enacted privacy laws, most privacy legislation in the United States is enacted at the state level. Many states have privacy legislation on employment privacy (drug testing, background checks, employment records), Social Security Numbers, video rental data, credit reporting, cable television records, arrest and conviction records, student records, tax records, wiretapping, video surveillance, identity theft, library records, financial records, insurance records, privileges (relationships between individuals that entitle communications to privacy), and medical records.

The National Association of Attorneys General Privacy Subcommittee has also argued that the states have a traditional role in regulating privacy:

There is a presumption in American law that state and local governments are primarily responsible for matters of health and safety. Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707 (1985) (there is a “presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause”). Privacy is included in the category of health and safety issues as an area of regulation historically left to the states. For instance, in Hill v. Colorado, the Supreme Court upheld a law protecting the privacy and autonomy of individuals seeking medical care, as the law was intended to serve the “traditional exercise of the States’ ‘police power to protect the health and safety of their citizens.'” 530 U.S. 703 (2000).