BJ Ard, ‘The Limits of Industry-Specific Privacy Law’

… This essay argues that the distinct features of online commerce not only challenge discrete industry-specific laws, but also expose more fundamental difficulties for the industry-specific approach. The piecemeal enactment of laws regulating specific industries may have been effective in a time when lawmakers could identify all the industries involved in a particular data-collection practice and trust that new industries would not soon enter the same niche. Indeed, when the business landscape is stable, this approach may offer advantages insofar as it allows law-makers to tailor their interventions to the specific incentives and norms of the regulated industries. But the information age creates at least three complications for industry-specific lawmaking. First, the accelerated rate of entry that characterizes online commerce makes it hard for legislators to keep pace on an industry-by-industry basis. Second, the intermediation of online transactions by third parties — parties ranging from Internet service providers to search engines, advertising net-works, and financial institutions — exposes gaps in any intervention that targets only the industry itself without accounting for these intermediaries. And third, the relative obscurity of online surveillance makes it difficult for lawmakers to identify and target the right class of entities through the industry-specific paradigm. Neither legislators nor their constituents are well equipped to deal with surveillance practices that are invisible to them …

BJ Ard, The Limits of Industry-Specific Privacy Law, 51 Idaho Law Review 607 (2015).

First posted 2015-10-20 18:15:47

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