The Significance of Private Rights of Action in Privacy Regulation

Lauren Henry Scholz is the McConnaughhay and Rissman Professor in the College of Law at Florida State University. Before coming to FSU, she was a fellow at the Project on the Foundations of Private Law and the Berkman Klein Center for Internet & Society, both at Harvard Law School. She also was a fellow at Yale Law School's Information Society Project. Before entering academia, Scholz was a law clerk for the American Civil Liberties Union of Massachusetts and the Center for Democracy and Technology. Her research interests include contracts, torts, commercial law, information privacy and intellectual property. 

Talk: The Significance of Private Rights of Action in Privacy Regulation

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Abstract: Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the power government has to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of actions can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform.