In the late 19^th century, Samuel Warren and Louis Brandeis published the “Right to Privacy,” articulating for the first time in the United States a privacy right, defining it as the “right to be let alone.”

Over the next nearly 130 years, US law on privacy continued to develop through common law torts, constitutional interpretation, the implementation of the Fair Information Practice Principles and the development of federal and state sectoral privacy law. Despite being a global leader on privacy, however, the US never developed a comprehensive federal privacy law to regulate the commercial use of information, or data; instead enacting laws to protect particularly sensitive personal data privacy, such as financial, health and children’s information.

The rest of the world, in contrast, began regulating information privacy as a comprehensive national concern. This national-level comprehensive approach corresponded with the enormous growth of the global digital economy, spearheaded by the commercial Internet and unprecedented global connectivity. Suddenly, data, which lacks any intrinsic value, became valuable based on how it could be processed to generate value. Now, data is integral to our national economy, the global economy and trade.

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A recently released issue brief from the Software Information Industry Association (SIIA) titled “Preemption and Privacy: Primer on Legal and Policy Considerations” makes this point and then discusses two legislative proposals for how to structure a preemption provision in a much needed strong federal privacy law.

Preemption needed for consumers, industry and for American global leadership

The regulation of personal data is a matter of national and global economic concern due to unprecedented global connectivity, the value of cross-border data flows and its implications for digital trade. A federal privacy law will have national economic impact because federal privacy legislation will regulate beyond tech, impacting traditional businesses and small- and medium-sized enterprises (SMEs).

Data has an incontrovertible impact on the national economy, which is why Congress should counteract potential harms to SMEs and the global economy and our national economy by enacting a harmonized data privacy standard for the benefit of our economy, consumers and innovation. Finally, preemption is needed to ensure that the United States can exercise leadership in international privacy, digital trade and technology policy discussions.