Foes of privacy bills in Congress try new approach: Federalism

[Declan McCullagh]

Bruce Kobayashi and Larry Ribstein photo:
http://www.mccullagh.org/image/950-19/larry-ribstein-bruce-kobayashi.html

Their paper, A State Recipe for Cookies: State Regulation of Consumer 
Marketing Information: 
http://www.federalismproject.org/conlaw/ecommerce/cookies.html

*********

http://www.wired.com/news/politics/0,1283,41511,00.html

    Should States Regulate Privacy?
    by Declan McCullagh (declan at wired.com)

    2:00 a.m. Feb. 1, 2001 PST
    ARLINGTON, Virginia -- Larry Ribstein and Bruce Kobayashi are nothing
    if not ambitious: They hope to reshape the way Washington thinks about
    privacy.

    Even though many observers of Capitol Hill assume the new Congress
    will approve regulations aimed at Internet firms, the two George Mason
    University law professors are betting that legislators can be
    persuaded to try a more laissez-faire approach.

    Instead of the Senate and the House enacting laws, they argue in a
    paper published this week, state legislatures should be making the
    decisions. Says Ribstein: "Federal law hasn't turned out to be a
    salvation in other areas."

    Their efforts are part of a nascent -- although fast-growing -- effort
    by conservatives and libertarians to target online privacy laws using
    many of the same tools, strategies, and alliances they've used to
    battle federal environmental, education, and gun regulations in the
    past.

    On Tuesday, the American Enterprise Institute's Federalism Project
    convened an invitation-only roundtable where Kobayashi and Ribstein
    presented their paper to an influential audience that included former
    OECD ambassador David Aaron, Yale law professor Roberta Romano,
    Michael Quaranta of Experian, and Bill Niskanen, chairman of the Cato
    Institute.

    AEI's Federalism Project argues that the U.S. national government is
    an institution that has usurped powers not delegated to it in the
    Constitution -- those powers should rightfully be reserved for states.
    One 1995 case is a favorite: U.S. v. Lopez, in which the Supreme Court
    overturned a federal gun law by ruling it "exceeds Congress' Commerce
    Clause authority."

    [...]

    Their 43-page paper says: "Federal law would perversely lock in a
    single regulatory framework while Internet technology is still rapidly
    evolving. State law, by contrast, emerges from 51 laboratories (50
    states, plus the District of Columbia) and therefore presents a more
    decentralized model that fits the evolving nature of the Internet."

    They predict that some states will impose more regulations than others
    -- by, for example, trying different approaches to mandating
    disclosure of privacy practices.

    [...]