"It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
--New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
EPIC's State Policy project, launched in the Spring of 2015, provides expertise to shape strong state privacy and open government laws.
State Policy News
- Court Rules Secret Scoring of Teachers Unconstitutional: A federal district court has held that firing public school teachers based on the results of a secret algorithm is unconstitutional. The case, Houston Federation of Teachers vs. Houston Independent School District, concerned a commercial software company's proprietary appraisal system that was used to score teachers. Teachers could not correct their scores, independently reproduce their scores, or learn more than basic information about how the algorithm worked. "When a public agency adopts a policy of making high stakes employment decisions based on secret algorithms incompatible with minimum due process, the proper remedy is to overturn the policy," the court wrote. EPIC recently filed a complaint asking the FTC to stop the secret scoring of young tennis players. EPIC has pursued several cases on "Algorithmic Transparency," including one for rating travelers and another for assessing guilt or innocence. (Jun. 13, 2017)
- EPIC Urges Massachusetts High Court to Protect Email Privacy: EPIC has filed an amicus brief in the Massachusetts Supreme Judicial Court regarding email privacy. At issue is Google's scanning of the email of non-Gmail users. EPIC argued that this is prohibited by the Massachusetts Wiretap Act. EPIC described Google's complex scanning and analysis of private communications, concluding that it was far more invasive than the interception of a telephone communications, prohibited by state law. A federal court in California recently ruled that non-Gmail users may sue Google for violation of the state wiretap law. EPIC has filed many amicus briefs in federal and state courts and participated in the successful litigation of a cellphone privacy case before the Massachusetts Judicial Court. The EPIC State Policy Project is based in Somerville, Massachusetts. (Oct. 24, 2016)
- Massachusetts Court Upholds Privacy Rights of Cell Phone Users (Sep. 28, 2016) +
- Secret Ballot At Risk in Maryland After Election Board Vote (Sep. 27, 2016) +
- EPIC, Verified Voting, Common Cause Release Report on Ballot Secrecy (Aug. 18, 2016) +
- EPIC Urges Wisconsin Legislature to Safeguard Student Privacy (Aug. 17, 2016) +
- States Adopt New Student Privacy Safeguards (Jun. 21, 2016) +
- Amendment Would Overturn Model Facial Recognition Privacy Law (May. 27, 2016) +
- NY Attorney General Reports 40% Increase in Data Breaches (May. 5, 2016) +
- Privacy in the States: Data Breach Notification in TN, Drone Surveillance in OR (Apr. 15, 2016) +
- EPIC to Testify before Pennsylvania Senate on Domestic Drone Surveillance (Mar. 14, 2016) +
- EPIC FOIA - Information about Controversial DNA Forensic Technique Released (Feb. 23, 2016) +
- California AG Releases 2016 Data Breach Report, Retail and Financial Sectors Most Vulnerable (Feb. 18, 2016) +
- In Court: EPIC Urges Massachusetts to Protect Student Privacy (Nov. 23, 2015) +
- EPIC Obtains Documents on Secret DNA Forensic Source Code (Nov. 10, 2015) +
- New Mexico Supreme Court Finds Warrantless Aerial Surveillance Violates Fourth Amendment (Oct. 19, 2015) +
- EPIC Pursues Public Release of Secret DNA Forensic Source Code (Oct. 14, 2015) +
- California Rejects Warrantless Surveillance, Enacts "CalECPA" (Oct. 9, 2015) +
- California Enacts Innovative Privacy Protections for Drones and SmartTVs (Oct. 9, 2015) +
- EPIC Urges Wisconsin to Protect SSNs of Job Seekers (Sep. 15, 2015) +
- In the States: California Governor Vetoes Drone Privacy Bill (Sep. 14, 2015) +
- In the States: Delaware Enacts Several Privacy Laws (Aug. 10, 2015) +
- In the States: NH Adopts Location Privacy Law (Jul. 28, 2015) +
- States Adopt Privacy Laws for Student Data, Breach Notification, License Plate Readers, and Drones (Jul. 2, 2015) +
- EPIC Urges California Supreme Court to Protect Open Records Law (Jun. 25, 2015) +
- South Carolina Requires Police Body Cameras, But Blocks Public Access to Footage (Jun. 12, 2015) +
- Florida Blocks Public Access to Police Body Camera Footage (May. 27, 2015) +
- California AG Urges Congress to Reform Data Breach Notification Bill (May. 21, 2015) +
- New Drone Privacy Law Signed by Florida Governor (May. 17, 2015) +
- EPIC Comments on Maryland Drone Bill (Mar. 17, 2015) +
More top news
- EPIC: Privacy Issues A-Z
- Privacy Journal: Compilation of State and Federal Privacy Laws
- National Conference of State Legislatures (NCSL): NCSL provides research and tools for state legislatures and others interested in state-level policy on a wide range of topics, including telecommunications and information technology.
- Council of State Governments (SGA): CSG is a region-based forum that fosters the exchange of insights and ideas to help state officials shape public policy.
- National Governor's Association (NGA): The NGA is the bipartisan organization of the nation’s governors.
- National Association of Attorneys General (NAAG): The NAAG is the bipartisan organization of the nation’s attorneys general.
- National League of Cities (NLC): The NLC is a resource for idea-sharing among cities nationwide.
- The United States Conference of Mayors (UCSM): USCM is the official non-partisan organization of cities with populations of 30,000 or more.
- OpenStates.org: OpenStates.org, a project of the Sunlight Foundation, is a collection of tools that make it possible for citizens to track what is happening in state legislatures by aggregating information from all 50 states, Washington D.C., and Puerto Rico.
- LegiNation: LegiNation is a legislative tracking resource which provides great tools for creating bill sheets and receiving updates on tracked bills via e-mail.
- GovTrack: GovTrack now provides tracking services of state bills in addition to bills filed in Congress. It uses a combination of data from LegiNation, and LegiScan, Inc, as well as some information from Open States.
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.Read more about preemption »
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:
Consumer protection has traditionally been an area where the states' power to ensure fair competition and informed consumer choice has been preserved, not eliminated. This structure has worked well for many years and no need to alter it in the area of privacy has been demonstrated. Preemption of state law will only undermine consumer confidence in their dealings with the financial institutions, e-tailers and other on and offline businesses. This conclusion is especially powerful with respect to financial information, where Congress has already recognized the utility of privacy protections enacted at the state level.
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).
EPIC's previous work on preemption
EPIC has previously argued against federal ceiling preemption. EPIC has testified before Congress that, particularly in the rapidly changing world of information security, the states must be given room to innovate:
"Because states enjoy a unique perspective that allows them to craft innovative programs to protect consumers, they should be permitted to continue to operate as "laboratories of democracy" in the privacy and data security arena. State legislatures are closer to their constituents and the entities they regulate; they are the first to see trends and problems, and are well-suited to address new challenges and opportunities that arise from evolving technologies and business practices. This is why privacy bills have typically created a federal baseline and allowed the states to adopt more stringent safeguards if they wish.
There is an additional reason that we believe weighs against preemption in the information security field: these problems are rapidly changing and the states need the ability to respond as new challenges emerge." (Source)
EPIC has also argued against preemption in federal court. In ABA v. Brown (formerly ABA v. Lockyer), financial services companies sued to invalidate the California Financial Information Privacy Act, the strongest financial privacy protection in the nation at the time, arguing that the law was preempted by the federal Fair Credit Reporting Act. EPIC and a coalition of groups representing 41 million individuals argued in an amicus brief that preemption of state law weakens protections against identity theft and consumer privacy. The Supreme Court ultimately upheld the California law.
Additional EPIC statements on preemption:
- EPIC's testimony on the SAFE Data Act before the U.S. House Committee on Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade. (2011)
- EPIC's testimony on Identity Theft: A Victim's Bill of Rights before the U.S. House Committee on Oversight and Government Reform, Information Policy, Census and National Archives Subcommittee. (2009)
- EPIC's comments to the FCC opposing preemption of junk fax laws. (2006)
- EPIC's comments urging the FCC not to preempt strong anti-telemarketing laws. (2005)
- EPIC's ABA v. Brown Amicus brief opposing preemption. (2004)
- EPIC comments to the Office of the Comptroller of the Currency on Rules, Policies, and Procedures for Corporate Activities; Bank Activities and Operations; Real Estate Lending and Appraisals, Docket No. 03-02. (2003).
- EPIC's testimony, Consumer Privacy Protection Act of 2002, HR 4678, before the Subcommittee on Commerce, Trade and Consumer Protection, House Committee on Energy and Commerce. (2002).
- EPIC's testimony, Hearing on Privacy in the Commercial World, before the Subcommittee on Commerce, Trade, and Consumer Protection Committee on Energy and Commerce U.S. House of Representatives. (2001).
If you have questions, please contact EPIC's State Policy Coordinator.
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by Ryan Calo, A. Michael Froomkin,