Max N. Helveston
ABSTRACT
The collection and use of consumer data by commercial entities has quickly transitioned from being an obscure topic to a headlining issue in leading media outlets. The burgeoning societal awareness of how digital devices are collecting and transmitting data about individuals has led to growing concerns about how this information is being used, stored, and sold. Legal scholars have identified insurance as one of the market sectors where commercial use of individuals’ data could be particularly harmful to consumers. They have argued that, if left unrestricted, insurers would use Big Data analytics in ways that would decrease marginalized populations’ access to insurance, limit individual liberties, and allow insurers to shirk their contractual obligations.
Working from the assumption that these concerns are valid, this Article considers whether existing laws are sufficient to prevent these abuses and provides an account of where further protections are needed. It argues that the primary laws targeted at restricting companies’ purchase and use of personal data—the Fair Credit Reporting Act, the California Consumer Privacy Act, and the Vermont Data Broker Act—may prevent certain problematic behaviors, but will not deter others. Additional state action will be necessary to protect consumers from exclusionary advertising practices, unfair underwriting rules, and bad faith claims handling behaviors.