Publication Date

9-10-2024

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Privacy, GDPR, Procedure, Remedies, Private Right of Action

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 both domestic privacy rights and international data flows. The 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 Justice for the European Union will strike down the latest US-EU Data Privacy Framework (the primary mechanism for allowing the transatlantic flow of personal data) over U.S. national security conduct, 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 right of action with the ability to pursue class action lawsuits. However, the 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 ensuring the continued transatlantic flow of personal data.

Publication Statement

Copyright held by the authors. User is responsible for all copyright compliance.

Originally published as Bernard Chao & Mandi Abbott, The Power of Procedure: Uncovering the Gap in U.S. Privacy Rights, 52 Pepperdine L. Rev. 121 (2025).

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