Structure of U.S. Law

Question 1

What are the 3 branches of government?

Answer 1

1. Legislative Branch
2. Executive Branch
3. Judicial Branch

Question 2

Who makes up the Legislative Branch? And what are its checks and balances?

Answer 2

a. Congress (House and Senate)

b. Congress confirms presidential appointees, can override vetos

Question 3

Who makes up the Executive Branch? And what are its checks and balances?

Answer 3

a. President, VP, Cabinet, federal agencies

b. President appoints federal judges, can veto laws passed by Congress

Question 4

Who makes up the Judicial Branch? And what are its checks and balances?

Answer 4

a. Federal Courts

b. Determines whether the laws are constitutional

Question 5

What are the sources of U.S. law?

Answer 5

1. Constitutions
2. Legislation
3. Regulations and Rules
4. Case Law
5. Common Law
6. Contract Law

Question 6

Is the right to privacy explicit in the U.S. Constitution.

Answer 6

No, the word “privacy” is not in the U.S. constitution. However, some parts directly affect privacy such as the 4th Amendment which limits government searches. State constitutions may create stronger rights than those found in the U.S. constitution. For example, CA state constitution expressly recognizes a right to privacy.

Question 7

What is legislation?

Answer 7

Laws passed by Congress or state legislatures.

Question 8

What are Regulations and Rules?

Answer 8

Compliance expectations placed on the marketplace by regulatory agencies. Some laws require regulatory agencies to issue regulations and rules.

Question 9

What is Case Law?

Answer 9

Final decisions made by judges in court cases. When similar issues arise in the future, judges look to past decisions as precedent and decide the case in a manner consistent with past decisions - “stare decisis”

Question 10

What is Common Law?

Answer 10

Legal principles that have developed over time in judicial decisions, often drawing on social customs and expectations.

Question 11

What is a Consent Decree?

Answer 11

A judgment entered by consent of the parties whereby the defendant agrees to sop alleged illegal activity, typically without admitting guilt or wrongdoing. The legal document is approved by the judge and formalizes an agreement reached between a federal or state agency and an adverse party. The document describes the actions the defendant will take, and my be subject to a public comment period.

Question 12

What is Contract Law?

Answer 12

It is a subcategory of Common Law.

Question 13

What are the fundamental requirements for forming a binding contract?

Answer 13

1. Offer
2. Acceptance
3. Consideration

Question 14

What is an Offer?

Answer 14

Proposed language to enter into a bargain. It must be communicated to another person and remain open until it is accepted, rejected, retracted or has expired. A counteroffer ends the original offer.

Question 15

What is Acceptance?

Answer 15

The assent or agreement by the receiver of the offer that the offer was accepted. Acceptance must be communicated to the offeror.

Question 16

What is Consideration?

Answer 16

Is the bargain-for exchange. Legal benefit received by one person and the legal detriment imposed to the other. Consideration usually takes the form of money, property, or services.

Question 17

What is Tort Law?

Answer 17

Are civil wrongs recognized by the law as the grounds for lawsuits. These wrongs result in an injury or harm that constitutes the basis for a claim.

Question 18

What are the 3 general tort categories?

Answer 18

1. Intentional Torts - wrongs that the defendant knew or should have known would occur through their actions or inactions.
2. Negligent Torts - wrongs when the defendant’s actions were unreasonably unsafe.
3. Strict Liability - wrongs that do not depend on the degree of carelessness by the defendant, but are established when a particular action causes damage.

Question 19

What are examples of Privacy Torts?

Answer 19

intrusion upon seclusion, public revelation of private facts, casting a person in a false light, interfering with a person’s right to publicity, failing to provide adequate safeguards for PI

Question 20

What is a Person?

Answer 20

Any entity with legal rights, including an individual or a corporation.

Question 21

What is the meaning of Jurisdiction?

Answer 21

The authority of a court to hear a particular case. The court must have subject matter jurisdiction and personal jurisdiction.

Question 22

What is Preemption?

Answer 22

A superior government’s ability to have its laws supersede those of an inferior government.

Question 23

What is “Private Right of Action”?

Answer 23

The ability of an individual harmed by a violation of law to file a lawsuit against the violator.

Question 24

What is Notice?

Answer 24

Is a description of the organization’s information management practices.

Question 25

What is the purpose of a Notice?

Answer 25

1. consumer education

2. corporate accountability

Question 26

What does a typical Notice tell an individual?

Answer 26

1. What information is collected
2. How the information is used and disclosed
3. How to exercise any choices about uses or disclosures
4. Whether the individual can access or update the information

Question 27

What is a Privacy Notice?

Answer 27

Often refers to external communications, issued to consumers, customers, or users.

Question 28

What is a Privacy Policy?

Answer 28

Often refers to internal standards used within the organization.

Question 29

What is Choice?

Answer 29

The ability to specify whether personal information will be collected and/or how it will be used or disclosed.

Question 30

What is an “opt in” choice?

Answer 30

An affirmative indication of choice based on an express act of the person giving the consent.

Question 31

What is an “opt out” choice?

Answer 31

A choice can be implied by the failure of the person to object to the use or disclosure.

Question 32

What is Access?

Answer 32

The ability to view personal information held by an organization.

Question 33

When must Access and Correction be provided?

Answer 33

When the information is used for any type of substantive decision making, such as for credit reports.

Question 34

Which federal agencies engage in regulatory activities concerning privacy in the private sector?

Answer 34

1. Federal Trade Commission (FTC)
2. Federal Communications Commission (FCC)
3. Department of Commerce (DoC)
4. Department of Health and Human Service (HHS)
5. Federal Reserve Board (Fed)
6. Office of Comptroller of the Currency (OCC)
7. Consumer Financial Protection Bureau (CFPB)

Question 35

What privacy authority does the FTC have?

Answer 35

The general authority to enforce against “unfair and deceptive trade practices,” notably including the power to bring deception enforcement actions where a company has broken a privacy promise.

Question 36

Who enforces privacy at the state level?

Answer 36

State attorney generals

Question 37

How do state attorney generals bring enforcement actions?

Answer 37

Typically, pursuant to state laws prohibiting unfair and deceptive trade practices.

Question 38

Who also plays a valuable role in governing privacy practices within industries?

Answer 38

Self regulatory regimes

Question 39

What questions should be asked to understand any privacy related law, statute, or regulation?

Answer 39

1. Who is covered by this law?
2. What types of information (and what uses of information) are covered?
3. What exactly is required or prohibited?
4. Who enforces the law?
5. What happens if I don’t comply?
6. Why does this law exist?

Question 40

What do the first 2 questions do?

Answer 40

Tell you the scope of the law.

Question 41

What does the third question do?

Answer 41

Tells you what you need to know to comply with the law

Question 42

What does questions 4 and 5 do?

Answer 42

They help you assess the risks associated with noncompliance or less than perfect compliance.

Question 43

What does question 6 do?

Answer 43

Helps you understand the motivation behind the law.