In considering the effects of interest groups on privacy law, it is not necessarily clear whether the political process will tilt toward either the industry or consumer position. First consider what will occur when the industry position dominates politically. We will expect less thorough regulation to protect privacy than would be promulgated in the public interest. The industry might succeed, for instance, in having government enact the precise rules that the industry itself would write under self-regulation. Indeed, government rules could be even more protective of industry than self-regulatory ones.
Industry has an incentive to use government rules as a shield to preempt any contrary laws.
An example is the ability of the tobacco industry to preempt many lawsuits by complying with the warning requirements of a 1969 federal statute. If the federal statute did not exist, the tobacco industry would have been under greater pressure to regulate itself, and would have faced greater liability under evolving state statute and tort law. For privacy advocates, the tobacco story can serve as a warning against a too-ready conclusion that some mandatory regulation is better than none. At a minimum, such advocates should consider the effect that passage of mandatory regulation will have on how the field of law would otherwise develop. In the alternative, consider if the forces favoring regulation dominate politically.