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56 Wm. & Mary L. Rev. 1501 (2014-2015)
Why Data Privacy Law Is (Mostly) Constitutional

handle is hein.journals/wmlr56 and id is 1547 raw text is: WHY DATA PRIVACY LAW IS (MOSTLY) CONSTITUTIONAL NEIL M. RICHARDS* ABSTRACT Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy, rather than blunt constitu- tional rules. This has become one of the basic principles of American constitutional law. Although some observers have suggested that the United States Supreme Court's recent decision in Sorrell v. IMS Health Inc. changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly drafted Vermont law that discriminated on the basis of both content and viewpoint. Such a law would have been unconstitutional if it had regulated even unpro- tected speech. As the Sorrell Court made clear, the real problem with the Vermont law at issue was that it did not regulate enough, unlike the more coherent policy of the undoubtedly constitutional federal Health Insurance Portability and Accountability Act of 1996. Data privacy law should thus rarely be thought of as implicating serious constitutional difficulties, and this is a good thing. As we move into the digital age, in which more and more of our society is affected or constituted by data flows, we face a similar threat. If data were somehow speech, virtually every economic law would become clouded by constitutional doubt. Economic or commercial * Professor of Law, Washington University. This Article is adapted from chapter five of my book, INTELLECTUAL PRIVACY: RETHINKING CIVIL LIBERTIES IN THE DIGITAL AGE 73-91 (2015). Extracts from this chapter are printed by permission of Oxford University Press, USA (www.oup.com). For helpful comments and suggestions, I would like to thank my co- participants at the William & Mary Law Review Symposium, especially my copanelist Julie Cohen and my Washington University colleagues Greg Magarian and John Inazu. 1501

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