FC: Larry Ribstein suggests state privacy laws instead of federal ones

[Declan McCullagh <declan () well com>]

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Background:
http://www.politechbot.com/cgi-bin/politech.cgi?name=Ribstein
http://www.cei.org/PRReader.asp?ID=1525
---

From: "Larry Ribstein" <lribstei () gmu edu>
To: <declan () well com>
Cc: <bkobayas () gmu edu>
Subject: The ACT poll and the state law issue
Date: Thu, 28 Jun 2001 15:41:47 -0400

Declan:

Another poll on privacy.  What does it all mean and where is this going? By now
we've heard a lot from all of the various privacy camps.  The privacy mavens
would like to see strong federal laws mandating everything in the world.  The
free market people would like to see no laws.  At least some of the companies
would like to see a weak federal law that preempts all state laws.

Do any of these camps really think they are going to get their wish lists, 
given
the massive confusion in everything from policy to opinion polls?  More
importantly, does anyone in any of these camps have a viable political 
strategy?

The only thing that everybody seems to agree on is that state laws on this 
issue
can't work. But while it is true that they won't work perfectly, and won't 
solve
all the problems right away, the   question is whether any of these other
"plans" will work better.  No law?  Get real.  Limited federal law?  Does 
anyone
believe that Congress will really knock out all state law, or come up with some
simple global solution? Even if Congress were infinitely wise and perfectly
motivated, the fact is that there is no such solution to all of the disparate
privacy problems.  So what we'll end up with is 18 different federal laws,
administered by 18 different federal agencies, each expanding its jurisdiction
daily, PLUS 51 state laws, and infinity of foreign laws, and a lot of questions
about how all this interacts. Sounds great if you're a lawyer.

So why not look again at a state law solution with all this in mind?  We think
that a system in which vendors designate the law and forum of a particular 
state
is both enforceable and realistic.  See our article at
http://www.federalismproject.org/conlaw/ecommerce/cookies.pdf.  We welcome
comments.

Larry Ribstein and Bruce Kobayashi
George Mason University Law School
3401 N. Fairfax Dr., Arlington, VA 22201
703 993-8041/fax 8202
lribstei () gmu edu   www.ribstein.org




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