Structure of US Law Flashcards
What is the purpose of the Legislative Branch, who makes it up and what are their checks and balances?
- Makes laws
- Congress ( house and senate )
- Confirms presidential appointees and can override vetoes
What is the purpose of the Executive branch, who is it and what are their checks and balances?
- Enforces laws
- President, VP, cabinet, federal agencies ( like FTC)
- President appoints federal judges, can veto laws passed by Congress
What is the purpose of the Judicial branch, who is it and what are their checks and balances?
- Interprets law
- Federal courts
- Determines whether the laws are constitutional
What are the sources of law?
Constitutions Legislation Regulations / rules Case law Consent decree Contract law Tort law
Regulations and rules
Laws that require regulatory agencies (FTC and FCC) to issue regulations and rules. These place specific compliance expectations on the marketplace.
Example the CAN-SPAM requires senders of commercial email messages to offer an opt out option. CAN-SPAM provide the FTC and FCC with the authority to issue regulations that set forth exactly how the opt-out mechanism must be offered and managed.
Case law
The final decisions made by judges in court cases.
When similar issues arise in the future judges look to past decisions as precedents (legal precedents) and decide the new case in a manner that is consistent with past decisions
Consent decree
Judgement entered by consent of the parties whereby the defendant agrees to stop illegal activity without admitting guilt. Describes the actions the defendant will take.
Usually requires violators to pay money to the government and agree not to violate the law in the future
Contract law
Legally binding agreement enforceable in court of law. The contract will include provisions.
Requirements for a binding contract
Offer - proposed language to enter into a bargain
Acceptance - the assent or agreement by the person to whom the offer was made that the offer is accepted
Consideration - the bargained for exchange. The legal benefit received by one person and the legal detriment imposed on the other person. Ex: money services property
Tort law
Civil wrongs recognized by law as the grounds for lawsuits. These wrongs result in an injury or harm that constitutes the basis for a claim by the injured party
Primary goal of tort law are to provide relief for damages incurred and deter others from committing the same wrongs
Intentional torts
Intentionally hitting a person or stealing personal information
Negligent tort
Causing a car accident by not obeying traffic rules or not having appropriate security controls
Strict liability torts
Established when a particular action causes damage; do not depend on the degree of carelessness
Product liability
Person
Any entity with legal rights including an individual or a corporation
Jurisdiction
The authority of a court to hear a particular case. A court must have jurisdiction over both the type of dispute (subject matter jurisdiction) and the parties (personal jurisdiction) Government agencies have jurisdictional limits also
General vs specific authority
General authority - is blanket authority to regulate a field of activity
Specific authority - is targeted at a singular activities that are outlined by legislation
Ex: the FTC has general authority over unfair and deceptive trade practices and specific authority to enforce coppa
Preemption
A superior governments ability to have its laws supersede those of an inferior government.
For example, the us federal government has mandated that state governments cannot regulate email marketing. The federal can-spam act preempts state laws that might impose greater obligations on senders of commercial electronic messages
Private right of action
The ability of an individual harmed by a violation of a law to file a lawsuit against the violator
Notice
Description of an organizations information management practices. They have two purposes… consumer education and corporate accountability
These could be privacy statements or policies
Choice
Ability to specify whether personal information will be collected and or how it will be used or disclosed, it can be expressed or implied.
Opt in
Opt out
No response
Access
Ability to view personal information held by an organization
What are the 3 branches of the government?
Legislative
Executive
Judicial
What 6 questions should you ask to understand a law?
Who is covered by the law? - scope
What types of information (and what uses) are covered? - scope
What exactly is required or prohibited? - compliance
Who enforces the law? - compliance
What happens if i don’t complying? - risks
Why does this law exist? - motivation behind the law
What is a privacy policy?
Refer to the internal standards within an organization
What is a privacy notice?
An external communication issued to consumers, customers or users
How does the constitution affect privacy?
The constitution does not mention the word privacy, but some parts directly affect privacy like the 4th amendment.
The constitution is the supreme law in the US
State constitutions are also sources of law and may create stronger right s than are provided in the us constitution
Common law
Legal principles that have developed over time in judicial decisions (case law) often drawing on social customs and expectations.
Federal trade commission (FTC)
The US primary consumer protection agency, the FTC collects complaints about business practices and identity theft under the FTC act and other laws that they enforce or administer.
Has general authority to bring actions under section 5 of the FTC act which prohibits unfair and deceptive trade practices
What are regulatory authorities?
Agencies that engage in regulatory activities concerning privacy in the private sector.
What are examples of regulatory authorities?
federal trade commission Federal Communications Commission Department of commerce Department of health and human services Federal reserve board Consumer financial protection bureau Office of the comptroller of the currency
Self regulation program examples
Play a significant role in governing privacy practices in various industries
Examples
Network advertising initiative
Direct marketing association
Children’s advertising review unit
State attorney generals
Bring a variety of privacy related enforcement actions often pursuant to state laws prohibiting unfair and deceptive practices
Federal Communications Commission
FCC
The US agency that regulates interstate communications through radio, wire, telecommunications, satellite and cable. The FCC has authority that overlaps with the FTC in some areas of privacy law including enforcement.
Department of commerce
Plays a leading role in federal privacy development and administers the privacy shield framework between the us and eu
What is self regulation
Allows industries to self regulate. Emphasizes creation of codes of practice for the protection of personal information by a company industry or independent body. No data protection law that creates a legal framework for the self regulatory code
A complement to law that comes from the government… police yourselves or we will do it for you.
The term self regulation can refer to any or all 3 components ( legislation, enforcement and adjudication)
L - who defines the privacy rules (privacy policy)
E - who should initiate enforcement action ( DPA or other government agencies )
A - who should decide whether an org has violated a privacy rule ( industry association, a government agency or a judicial officer)
Co- regulatory model vs self- regulatory model
Co - generally referring to laws closer to a comprehensive model
Self regulatory model referring to laws closer to the US ( sectoral)
