Enforcing Federal Privacy Law— Constitutional Limitations on Private Rights of Action

"Over the last two years, the prospect of a comprehensive federal data privacy law has been the subject of considerable attention in the press and in Congress. Some Members of Congress and outside groups have developed many proposals in the last six months alone. Some of the proposed legislation would limit companies’ ability to use personal information collected online, require that companies protect customers from data breaches, provide certain disclosures about their use of personal information, or allow users to opt out of certain data practices. Some proposals combine all of those elements or take still differentapproaches.

One overarching question that every data privacy proposal raises is how to enforce any new federal rights or obligations that a given bill would impose. One traditional method of enforcement would be by a federal agency, such as the Federal Trade Commission or Department of Justice, through civil penalties or criminal liability. A bill could also provide for enforcement in civil lawsuits brought by State Attorney Generals. Along with these methods, several outside commentators have recently called for any new federal privacy legislation to include a federal private right of action—a right that would allow individuals aggrieved by violations of the law to file lawsuits against violators in order to obtain money damages in federal court. .At least one bill proposed in Congress includes such a right: the Privacy Bill of Rights Act, S. 1214. "
Federal privacy laws