Professor Jordan Fischer is one of two U.S.-based authors to publish in Hart Publishing’s new book, Data Protection Beyond Borders: Transatlantic Perspectives on Extraterritoriality and Sovereignty.
The book examines recent legal developments related to data sovereignty within nation states and at the individual level. It was edited by Federico Fabbrini, Edoardo Celeste, and John Quinn of Dublin City University.
Fischer’s chapter, “The Challenges and Opportunities for a US Federal Privacy Law,” considers the data sovereignty issues that may arise if and when the United States creates a federal privacy law.
“My piece steps through the uniqueness of the American legal system,” said Fischer, “and why it will likely result in a unique approach to consumer privacy.” According to Fischer, U.S. common law and the reasonable expectation of privacy, which has arisen primarily out of the Fourth Amendment, are two differentiators in the U.S. legal system that will affect a federal privacy law, should one be created.
An additional challenge the U.S. will face is related to the country’s “patchwork approach to privacy.” “Even if or when we adopt a federal privacy law,” said Fischer, “there are still state laws, which will create preemption issues. Other countries would not necessarily have to deal with these additional legal complexities.”
These possible preemption issues may become even more likely, as U.S. states further develop their privacy laws and regulations. For example, the California Consumer Privacy Act (CCPA), which came into effect in 2020, is a state law that provides a level of privacy protections and rights for California residents.
Because similar laws are being enacted or considered in other U.S. states and abroad, understanding how the CCPA protections function will provide a key in developing future legislation.
Fischer will analyze the law’s enforcement as part of her involvement in the project “Investigating the Compliance of Android App Developers with the California Consumer Privacy Act,” which is funded by a grant from University of California Berkeley’s (Berkeley’s) Center from Long-Term Cybersecurity.
Fischer will work with Berkeley’s Nikita Samarin, a doctoral candidate, and Primal Wijesekera, a staff research scientist, on this research. The project is also part of an ongoing collaboration between Berkeley and Fischer, who is a Visiting Researcher at the Berkeley Laboratory for Usable and Experiential Security (the BLUES Lab).