Structure of US Law

Question 1

What is the purpose of the Legislative Branch, who makes it up and what are their checks and balances?

Answer 1

1. Makes laws
2. Congress ( house and senate )
3. Confirms presidential appointees and can override vetoes

Question 2

What is the purpose of the Executive branch, who is it and what are their checks and balances?

Answer 2

1. Enforces laws
2. President, VP, cabinet, federal agencies ( like FTC)
3. President appoints federal judges, can veto laws passed by Congress

Question 3

What is the purpose of the Judicial branch, who is it and what are their checks and balances?

Answer 3

1. Interprets law
2. Federal courts
3. Determines whether the laws are constitutional

Question 4

What are the sources of law?

Answer 4

Constitutions 
Legislation
Regulations / rules
Case law
Consent decree
Contract law
Tort law

Question 5

Regulations and rules

Answer 5

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.

Question 6

Case law

Answer 6

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

Question 7

Consent decree

Answer 7

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

Question 8

Contract law

Answer 8

Legally binding agreement enforceable in court of law. The contract will include provisions.

Question 9

Requirements for a binding contract

Answer 9

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

Question 10

Tort law

Answer 10

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

Question 11

Intentional torts

Answer 11

Intentionally hitting a person or stealing personal information

Question 12

Negligent tort

Answer 12

Causing a car accident by not obeying traffic rules or not having appropriate security controls

Question 13

Strict liability torts

Answer 13

Established when a particular action causes damage; do not depend on the degree of carelessness

Product liability

Question 14

Person

Answer 14

Any entity with legal rights including an individual or a corporation

Question 15

Jurisdiction

Answer 15

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

Question 16

General vs specific authority

Answer 16

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

Question 17

Preemption

Answer 17

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

Question 18

Private right of action

Answer 18

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

Question 19

Notice

Answer 19

Description of an organizations information management practices. They have two purposes… consumer education and corporate accountability

These could be privacy statements or policies

Question 20

Choice

Answer 20

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

Question 21

Access

Answer 21

Ability to view personal information held by an organization

Question 22

What are the 3 branches of the government?

Answer 22

Legislative
Executive
Judicial

Question 23

What 6 questions should you ask to understand a law?

Answer 23

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

Question 24

What is a privacy policy?

Answer 24

Refer to the internal standards within an organization

Question 25

What is a privacy notice?

Answer 25

An external communication issued to consumers, customers or users

Question 26

How does the constitution affect privacy?

Answer 26

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

Question 27

Common law

Answer 27

Legal principles that have developed over time in judicial decisions (case law) often drawing on social customs and expectations.

Question 28

Federal trade commission (FTC)

Answer 28

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

Question 29

What are regulatory authorities?

Answer 29

Agencies that engage in regulatory activities concerning privacy in the private sector.

Question 30

What are examples of regulatory authorities?

Answer 30

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

Question 31

Self regulation program examples

Answer 31

Play a significant role in governing privacy practices in various industries

Examples
Network advertising initiative
Direct marketing association
Children’s advertising review unit

Question 32

State attorney generals

Answer 32

Bring a variety of privacy related enforcement actions often pursuant to state laws prohibiting unfair and deceptive practices

Question 33

Federal Communications Commission

Answer 33

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.

Question 34

Department of commerce

Answer 34

Plays a leading role in federal privacy development and administers the privacy shield framework between the us and eu

Question 35

What is self regulation

Answer 35

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)

Question 36

Co- regulatory model vs self- regulatory model

Answer 36

Co - generally referring to laws closer to a comprehensive model
Self regulatory model referring to laws closer to the US ( sectoral)