NEGATIVE — COUNTERPLAN — STATES/FEDERALISM 30

STATE GOVERNMENTS ARE THE RIGHT AGENTS TO PROTECT PRIVACY

STATE COURTS AND LEGISLATURES ARE EFFICIENT PROTECTORS OF PRIVACY

Nadine Strossen, law professor at New York Law School AND president of the American Civil Liberties Union, PANEL DISCUSSION: CONTEMPORARY CHALLENGES TO PRIVACY RIGHTS, New York Law School Law Review , 1999, 43 N.Y.L. Sch. L. Rev. 195, EE2001-JGM, P.204

A second strategy for increasing protection of privacy rights is to rely on state courts and state constitutions. They have been a wonderful source of protection for constitutional privacy in the areas of reproductive freedom and lesbian and gay rights. A number of state constitutions, in contrast with the U.S. Constitution, contain express privacy guarantees. Moreover, even in some states whose constitutions contain no such express guarantee, state courts have found a broader implied privacy right than the U.S. Supreme Court has enforced under the U.S. Constitution. Invoking their power to construe their own constitutions and traditions as guaranteeing greater individual rights than those recognized by the U.S. Supreme Court under the U.S. Constitution, a number of state courts have reached conclusions at odds with, for example, Bowers n45 and Casey, n46 ruling that state constitutional law provides more protection for reproductive n47 and sexual autonomy. n48

STATE REGULATION IS BETTER AT CONSUMER PROTECTION AND GETTING RID OF DISREPUTABLE FIRMS

JAMES HECKMAN, Staff Writer, Marketing News TM, November 22, 1999; Pg. 4 TITLE: (Marketers don't) love N.Y. . . . or California; California, New York lead pack in creating privacy regulations // acs-VT2001

Marketers looking for a silver lining in the trend note that the increased state activity could help clear out disreputable marketers faster than the federal government's efforts.

"States have always been more nimble in their ability to provide consumer protection," says Isaacson. "If I'm an ISP in Nevada, for example, I would be very happy to see a Nevada law against spamming or harvesting e-mail addresses. Nevada authorities could enforce the law quickly in the state court system rather than waiting for the federal courts."

FEDERAL GOVERNMENT CANNOT TELL THE STATES WHAT TO DO WITH THEIR RECORDS

LINDA GREENHOUSE, The New York Times, November 11, 1999, SECTION: Section A; Page 20; TITLE: States' Rights Adherents on Top Court Appear to Be Given Pause // acs-EE2001

"Just as the federal government can't tell a state to move its capital, it can't tell the states what to do with their records," Justice Scalia said. "They're sacred. They belong to the state, and the federal government mucking around with them goes over the edge."

MEDICAL PRIVACY FEDERAL LEGISLATION WILL RUIN THE GOOD WORK STATES HAVE DONE

JANE BIRNBAUM; WORTH MAGAZINE, The Plain Dealer, December 27, 1999 SECTION: HEALTH & FITNESS; Pg. 2F TITLE: CONCERN GROWS OVER INTRUSION INTO PERSONAL MEDICAL RECORDS // acs-EE2001

Some consumer advocates would prefer that Washington just stay out of it. They fear that any federal laws in the area of medical privacy are likely to codify current privacy-eroding practices and prevent, or pre-empt, states from passing stronger laws.

"Pre-emption is where the game's at now," says Boston psychiatrist Denise Nagel of the National Coalition for Patient Rights. "All the industry groups want it."

MORE ATTENTION TO PRIVACY ISSUES TRIGGERS ADDITIONAL STATE ACTION

Heather Green, Business Week, February 14, 2000; Pg. 38 TITLE: PRIVACY: OUTRAGE ON THE WEB // acs-EE2001

As the privacy issue gets more attention, momentum is building for government action. States including New York and Hawaii have pending legislation, and California, Maryland, and Virginia are expected to follow. In a case that could be a taste of things to come, the New York State Attorney General reached settlements with Chase Manhattan Bank and Sony Music Entertainment Inc.'s online service InfoBeat to curtail information-sharing practices with outside partners. The office says Chase was violating its own privacy policy, though the bank contends it didn't.

PRIVACY BATTLEGROUND IS SHIFTING TO THE STATES

JOHN LABATE and PATTI WALDMEIR Financial Times (London) January 28, 2000, SECTION: WORLD NEWS: US & CANADA; Pg. 8 TITLE: WORLD NEWS: US & CANADA: Data privacy battle to shift to states // acs-EE2001

The battleground over the flow of sensitive consumer information held by US companies is poised to shift to the states as more than a dozen, state-level legislatures consider new restrictions.

MANY NEW STATE INITIATIVES TO PROTCT PRIVACY EXIST

JOHN LABATE and PATTI WALDMEIR Financial Times (London) January 28, 2000, SECTION: WORLD NEWS: US & CANADA; Pg. 8 TITLE: WORLD NEWS: US & CANADA: Data privacy battle to shift to states // acs-EE2001

All eyes are on a handful of western states, including Washington and California, where new consumer protection bills have been introduced in recent weeks. Other leading states include Massachusetts, where the governor has spoken in favour of such legislation, and Idaho.