The Divided States of America(n Data)

This is why we can’t have nice things – like our own version of GDPR.

The American Data Divide

Across the ocean, a much-publicized piece of holistic privacy legislation called the GDPR has transformed the relationship between citizens, businesses, and personal data. In 2019 it’s time to ask: why can’t the USA produce its own unified piece of federal data privacy regulation?

Data regulation in the United States is still a work in progress. At present it’s a patchwork quilt split along state and industrial sector lines, and for most consumers, it’s impossible to penetrate. Businesses are similarly hamstrung by the lack of harmonious regulation. Those that decide to play by the rules burn copious resources and frustrating man-hours just to understand what those rules are. And even after that expending all that effort, many (if not most) businesses still struggle to be compliant.

The Roadblocks to Reform

Why can’t Congress do something about it? The short answer is that there just hasn’t been enough momentum to get something passed federally. The FTC has long recommended that Congress enact a comprehensive set of privacy laws. The Obama administration, in its early days, even tabled a set of proposals for a Consumer Privacy Bill of Rights. Privacy practitioners lauded the document. But it quietly died as Silicon Valley ingratiated itself into the D.C. political machine over the first half of the decade. And although the new president is an avid social media user, the Trump administration has shown little appetite for data regulation.

It’s also possible to make a deeper cultural reading into the different data trajectories of the US and EU. The European Union has been, since its inception, a body with the power to legislate dynamically in reaction to the world around it. On the other hand, US legal and political culture remains staunchly Constitutionalist. Legislating for an issue like data privacy, nonexistent at the time the Constitution was written, can be slowed by the challenge of remaining faithful to the spirit of a document that’s over 200 years old.

The Prospects for Change

However, in 2020 there will be a presidential election and possibly a new administration in the White House. Have the dynamics changed sufficiently to inspire another tilt at federal regulation? The voting population seems more concerned than ever about the way companies use personal data. However, a vocal watchdog organization (à la MADD or the NAACP) has yet to emerge. We’ll return to this later.

The real change that’s taken place lies in the business community. Among business leaders, regulatory certainty is emerging as a key concern – even beyond getting favorable laws. Businesses just want the rules of the game to be consistent. And there’s a deeper acceptance that federal laws represent a huge efficiency improvement over the uncertainty and instability of state-by-state regulation.

One unified piece of legislation would provide a single target on which to concentrate lobbying efforts, debate, and discussion. Consequently, many business leaders are already urging Washington to take action. Earlier this year 51 CEOs from some of the biggest tech and industrial companies in the world signed an open letter to Congress urging them to act on a “comprehensive consumer data privacy law.”

Will Citizens Step Up?

Were it up to these business leaders, a federal data law would be a done deal. But legislators appear wary of acting while there’s an empty seat at the table. If anything is slowing federal data regulation down in 2019, it’s the lack of a high-profile citizen’s rights group that could sit down with political and business leaders and get the ball rolling.

To conclude, the landscape looks to be more conducive to a federal data privacy law in 2019. But wondering “why doesn’t it exist yet?” may be the wrong question for individual citizens to be asking. In the absence of a highly-invested consumer protection lobby in Washington DC, the correct question to ask may be: “how can we get a seat at the table?”