The Power of Procedure: Uncovering the Gap in U.S. Privacy Rights

Abstract

As Congress faces increasing pressure to adopt comprehensive privacy legislation, this Article seeks to contribute to the ongoing discussions by exploring critical procedural deficiencies in U.S. privacy laws and their implications for domestic privacy rights and international data flows. This Article makes several key contributions to the field. First, it uses a comparative law perspective to highlight the lack of robust procedural rights and remedies in U.S. privacy law. Second, while many have questioned whether the Court of Jus tice for the European Union will strike down the latest U.S.-EU Data Privacy Framework (the primary mechanism for allowing the transatlantic flow of personal data) over U.S. national security practices, we highlight another problem. This Article is the first to show why the agreement may fail due to insufficient procedural safeguards. Ultimately, we join others in calling for U.S. privacy laws to include a private cause of action with the ability to pursue class action lawsuits. However, this Article also offers an original set of remedies compromises, such as relying on unjust enrichment and introducing judicial safeguards to prevent disproportionate damages awards. These reforms aim to strike a balance and gain broad support among policymakers for new federal and state privacy legislation. If adopted, these reforms should enhance privacy rights in the U.S. while also helping to ensure the continued transatlantic flow of personal data.