Lawyer Monthly - August 2021 Edition

36 WWW.LAWYER-MONTHLY.COM | AUG 2021 THE STATE OF THE STATES’ CONSUMER PRIVACY LAWS The Origins and Importance of Privacy In 1789 when the US Constitution was ratified, the word privacy was nowhere to be found. Rather, it was baked into the Third, Fourth, Fifth Amendments’ limitations on governmental intrusions into personal territorial, bodily, and communication privacy. In 1890, Samuel Warren and Louis Brandeis published “The Right to Privacy” in the Harvard Law Review, describing privacy as “the right to be let alone”. Elsewhere in the world, in 1948 the General Assembly of the United Nations proclaimed privacy as a human right, declaring: “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence”. In contrast, the 1972 amendment to the California Constitution added an explicit guarantee of the right to privacy, stating: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy”. Regardless of the historical or societal origins, it is clear that a person’s right to privacy is universally viewed as a fundamental individual right and an essential element of personal freedom. In the New Millennium, the concept of personal privacy has expanded past unlawful governmental intrusions and grown more sensitive in this digital age. Technological advances have produced exponential growth in the volume and variety of personal data being generated, collected, stored, and analysed, which presents both promise and potential peril. It is true that the ability to harness and use data in positive ways drives innovation and brings beneficial technologies to society, but it also has created risk to privacy and freedom. The unauthorised disclosure of personal information and loss of privacy can have devastating impacts ranging from financial fraud, identity theft, and unnecessary costs in personal time and finances to destruction of property, harassment, reputational damage, emotional distress, and physical harm. Therefore, a critical question is: can privacy laws coexist with enterprise growth innovation? US Privacy Law Development In the US, privacy laws have developed sector-specifically, with notable examples including the 1978 Family Educational Rights and Privacy Act (FERPA) protecting student education records; the 1996 Health Insurance Portability and Accountability Act (HIPAA) governing personal healthcare date (as augmented by the 1999 HIPAA Privacy Rule, the 2003 HIPAA Security Rule, and the 2010 Health Information Technology for Economic and Clinical Health Act (HITECH)), the 1998 Children’s Online Privacy Protection The State of the States’ Consumer Privacy Laws Regardless of the historical or societal origins, it is clear that a person’s right to privacy is universally viewed as a fundamental individual right and an essential element of personal freedom. Rita W Garry, Shareholder Robbins, Solomon & Patt 180 N. La Salle Street, Suite 3300, Chicago, Illinois 60601 Tel: 312 456 0285 Email: rgarry@rsplaw.com www.rsplaw.com Rita W Garry Rita W Garry is a seasoned corporate, transactional and data privacy attorney. Among her other work, she guides enterprise clients, both nationally and internationally, in designing and operationalising data management and protection law compliance programmes. RSP RSP is an Illinois-based law firm that has represented clients across the Chicagoland and Midwest area for over 50 years, building strong relationships with small- and medium-sized businesses across a broad range of industries.