Geoffrey Comber
89 Geo. Wash. L. Rev. 202
One of the distinguishing features of the information age we live in is the vast troves of information collected and compiled about us each day—particularly online. As we become more aware of just how much personal information is online, and as some of the biggest collectors of that information suffer breaches revealing our personal information, European and some U.S. jurisdictions have begun to implement new laws regulating how businesses use and share information in response to demands for stronger regulations to protect our information. Those privacy protections, however, are bound to come before the courts. First Amendment challenges to laws designed to protect individual privacy are nothing new, but recent decisions and a jumble of jurisprudence may leave courts, legislators, and regulated businesses at a loss for how those cases should, or will, come out. Though not definitive, it is likely that the sale or transfer of a user’s information does qualify as protected speech, and it should. If the sale or transfer of users’ information is speech protected by the First Amendment, it should be commercial speech, and thus subject to the intermediate level of scrutiny laid out in Central Hudson.
