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Privacy

Commerce Seeks Comment on Privacy Law, Creates Task Force

WASHINGTON, April 22, 2010 – The Commerce Department is seeking public comment on the impact of privacy laws in the United States and around the world to determine if current laws serve consumer interests and democracy. It also this week announced the formation of an Internet Policy Task Force to identify public policy and operational issues impacting the private sector’s ability to best achieve economic growth and job creation through the Internet.

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WASHINGTON, April 22, 2010 – The Commerce Department is seeking public comment on the impact of privacy laws in the United States and around the world to determine if current laws serve consumer interests and democracy.

It also this week announced the formation of an Internet Policy Task Force to identify public policy and operational issues impacting the private sector’s ability to best achieve economic growth and job creation through the Internet.

“Because of the vital role the Internet plays in driving innovation throughout the economy, the department has made it a top priority to ensure that the Internet remains open for innovation while promoting an environment respectful of individual privacy expectations,” Commerce Secretary Gary Locke said.

The Internet Policy Task Force plans to explore privacy frameworks and ways to address the challenges of the new Internet economy and society “in a manner that preserves and enhances personal privacy protection,” according to the department.

The group is comprised of staff members from the National Telecommunications and Information Administration, International Trade Administration, National Institute of Standards and Technology and the Patent and Trademark Office, and will be coordinated through the Commerce Department’s Office of Policy and Strategic Planning, which reports to the secretary.

In addition to privacy and innovation, the task force will examine cyber security, online copyright protection and international barriers to moving data around the globe, and the ability of entrepreneurs and small- and medium-sized businesses to expand their operations via the Internet.

Cybersecurity

Congressional Witnesses Say Lack of Agency Resources is Holding Back Government Cybersecurity Efforts

House Freedom Caucus Rep. Scott Perry calls GOP supporters of the bipartisan infrastructure measure “socialist-voting members.”

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Photo of House committee Chairman Peter DeFazio from May 2014 by Theresa Hogue used with permission

WASHINGTON, December 3, 2021 – Representatives of federal agencies tasked with overseeing the nation’s infrastructure systems told the House Transportation and Infrastructure Committee that their efforts to safeguard national cybersecurity are hampered by a lack of funding for their agencies.

The committee called on testimony from the Transportation Department, the Federal Aviation Administration, the Transportation Security Administration, the U.S. Coast Guard and the Government Accountability Office in the second part of a two-hearing series on infrastructure cybersecurity following a year that saw the number of high profile cyberattacks increase.

The TSA has recently proposed cybersecurity mandates for the transportation industry, only to face significant blow back from key leaders in transportation.

Throughout the hearing Thursday as lawmakers presented agency representatives with proposals to improve federal cybersecurity efforts, the agency representatives frequently cited a lack of resources as preventing them from executing such changes in cyber policy.

Lawmakers find uncertainty for success of proposals

Lawmakers’ questions touched on a wide variety of infrastructure issues.

Rep. Rick Larsen, D-Wash., raised concerns over the usage of C-band interfering with aircraft. The topic has been in the spotlight as C-band use increases with 5G rollout, and the aviation industry has continually requested delays in 5G deployment despite telecom companies already having set back their release dates.

The FAA’s representative at the hearing, chief information security officer Larry Grossman, stated that the FAA believes C-band can safely coexist with aviation, and that further information on the matter was being gathered by both the FCC and the FAA.

Rep. Grace Napolitano, D-Calif., stated examples of breaches in the nation’s water supply systems and recommended virtual cybersecurity training for the employees who oversee those systems.

Rep. Hank Johnson, D-Ga., emphasized that cybersecurity challenges had held up disbursement of emergency government COVID-19 stimulus, creating delays that he said many Americans could not afford. He pointed to the slow pace of cybersecurity solution implementation as a major contributor to these delays.

In one of the day’s more politicized lines of questioning, chairman of the House Freedom Caucus Rep. Scott Perry, R-Pa., asked what was being done to counter what he considered cybersecurity threats specific to electric buses such as lighting fires. In his questioning, he condemned the Republicans who voted for the Infrastructure Investment and Jobs Act, which contains an electric vehicles provision, as “some socialist-voting members.”

Photo of the hearing

The GAO’s representative, director of information technology and cybersecurity Nick Marinos, responded that whether they are gas or electric powered, vehicles are seeing increased potential for hacks.

Like Rep. Napolitano, committee chairman Rep. Peter DeFazio, who recently announced this would be his last term in Congress, said cybersecurity training should be mandated for companies overseeing infrastructure. He emphasized that just before it was hacked, Colonial Pipeline turned down an audit that was offered to it, and that should the audit have taken place the hack may have been prevented.

Additional legislation concerning these hacks has been pushed recently in the House, such as a mandate for quick reporting to the government when companies are hacked.

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Privacy

Colorado and Virginia Lead In Consumer Privacy Legislation, Still Need Federal Law, Conference Hears

Both states join California as the only ones with comprehensive privacy laws, but experts say a federal bill should fill the regulatory void.

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Stacey Gray, senior counsel at the Future of Privacy Forum.

WASHINGTON, November 30, 2021 – Amid the lack of comprehensive privacy law at the federal level, states across the nation join California to take privacy matters into their own hands.

California was the first state to adopt privacy legislation with its California Consumer Privacy Act (CCPA) in 2018, followed by the California Privacy Rights Act of 2020 (CPRA). In 2021, Virginia and Colorado enacted their own privacy laws, which will go into effect in 2023.

At the Federal Communications Bar Association’s annual privacy symposium on November 16, privacy experts celebrated Colorado’s and Virginia’s progress amid an industry-wide push for a comprehensive federal privacy law.

Virginia’s and Colorado’s privacy laws align with California’s CPRA by applying many of CPRA’s concepts: the scope of data covered by the law is the same, and all states impose data use restrictions that limit a company’s ability to analyze and share consumers’ personal information.

Further, all states impose affirmative duties on data processing entities. Colorado’s privacy law, however, sets itself apart by using a heightened standard for businesses to obtain a customer’s agreement to process their personal data. Colorado’s attorney general also has broad policy-making authority in the bill, making Colorado’s attorney general an effective state enforcement regime.

Drawbacks to piecemeal legislation

Despite the relative uniformity between the three states’ legislation, privacy experts agree that widely differing privacy frameworks sets the industry up for a messy regulatory compliance landscape.

Stacey Gray, senior counsel at the Future of Privacy Forum, said a lack of interoperability makes compliance across multiple states more difficult. “This is a huge issue with three states with different frameworks,” she said. “Lawmakers are getting a big push not to regulate differently or creating direct conflict with different states. That’s why [the] other proposals have similar basic language and features.”

Gray also pointed to differing frameworks for service opt-in and opt-out models as another point of tension. “We should explore what Colorado and California have done, which is include a global opt-out for browsers or internet plug-ins that communicates [opting out] to every company in the ecosystem of a person’s data,” she added.

Although Gray said she believes that a federal privacy bill is the best way to develop a national standard, she sees growing state interest as an inevitable product of growing data harms affecting consumers.

“It really started in the past few years and is snowballing,” she said. “Between the passage of the European Union’s General Data Protection Regulation, the Cambridge Analytica scandal, California’s law in 2018, some federal momentum, and the role of the media…there’s been an increasing state interest in these issues. There’s a motivation to protection residents in their own states.”

Federal privacy law is still best

Consumer privacy bills were considered in 26 states this year, and only Colorado and Virginia made it past the finish line. As lawmakers are getting ready for sessions in early 2022, stakeholders are preparing to push for greater privacy legislation across the nation regardless of any federal action. ‘’

Gray argues that a federal law would be the best authority for a nationwide privacy standard. “The federal standard would be ideal,” Gray said. If there is no action on the federal level and we’re left with the states, then states should continue enacting privacy laws, she said. “But we should tackle this at the federal level to get a standard that applies nationwide. We already have hundreds of privacy laws in various sectors that supplement HIPAA, students and privacy, and even long-standing narrow laws like paparazzi and school records,” so more state laws could be hard for businesses and entities to navigate and comply.

Still, there may be benefits to testing privacy laws on the state level before enforcing the legislation nationwide. “States are the laboratory for democracy,” said Ryan Kriger, assistant attorney general in Vermont’s attorney general public protection division.

“We have three laws in the books now to look at,” Kriger added. “It’s a huge benefit for states to test things out and see how things work, as well as finding ways to make an existing law better by applying it to the states.”

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Privacy

Federal Trade Commission Should Make Privacy Rules Against ISP Data Collection, Experts Say

To protect consumers in the digital revolution, experts say serious federal action on privacy can lead the way.

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Photo of Alan Butler, executive director of the Electronic Privacy Information Center

WASHINGTON, November 30, 2021 – Privacy experts are calling on the Federal Trade Commission to start the process of empowering itself to penalize internet service providers that collect unnecessary data from their customers to push targeted advertisements.

While discussions on privacy matters have overwhelmingly been focused on big technology companies and how they use customer data, experts at a Federal Communications Bar Association privacy symposium on November 16 said ISPs should be in the crosshairs of federal regulators.

Specifically, according to Alan Butler, president of the Electronic Privacy Information Center, unnecessary ISP data collection “demands action” from the FTC.

“The current status is that internet service providers are within the jurisdiction of the FTC and the FTC should act” and not wait for other federal actors to initiate ISP consumer privacy rules, said Butler. In 2017, Congress voted to disallow the Federal Communications Commission, which regulates the telecom space, from making regulations on protecting ISP consumer privacy, leaving the door open for the FTC to regulate providers’ privacy practices.

But there’s a wrinkle. While the agency can investigate and penalize business practices that are “unfair” and “deceptive,” according to the Federal Trade Commission Act, the FTC cannot issue its own federal privacy rules under its current consumer protection authority. To do that, the FTC would need to initiate a policy-making process by which the agency develops and issues regulations, which can then become federal policy.

Some experts think the FTC would be the best entity for developing such rules and should start the process, while others think the FTC’s regulatory process wasn’t made to give the agency its own privacy authority.

A separate federal agency for privacy regulation

As the FTC could receive funding to establish a privacy bureau under the House of Representatives’ reconciliation bill, Butler left open the question of whether the FTC should proceed by issuing broad privacy regulations or whether it should be should be “parsed out” into specific issues.

“The FTC has to adopt rules that establish fair data practices and seek to protect secondary data uses and sensitive data,” such as customers’ biometric and demographic data, he said. Butler said FTC privacy regulations would be a “temporary solution,” but there must be a separate federal agency that regulates privacy in the United States. “Funding for an FTC privacy bureau in the reconciliation bill is an important step forward,” he said.

The law at play for an FTC privacy authority

The FTC’s ability to regulate privacy would be governed by the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act. The Magnuson-Moss Act is notorious for adding several steps beyond the normal federal policy-making process, including a requirement that the FTC must find the problematic conduct to be “prevalent” in the marketplace.

“Magnuson-Moss was designed to choke off the FTC’s ability to engage in rulemaking,” said Georgetown law professor David Vladeck. Issuing privacy rules from the FTC would hard, he says, because the FTC must clear substantial hurdles before it can enforce any privacy rules.  “There’s a clear implication that the FTC is not able to promulgate a rule unless it can prove to a court after the rulemaking is done that the intrusive conduct is ‘prevalent.’ Well, Congress doesn’t define ‘prevalent,’” he added.

Butler argued that finding prevalence of data abuse won’t be hard. “The FTC wouldn’t struggle to find issues that are endemic to the industry,” he said. “The [agency] is capable of finding that its widespread use of location data unrelated to the use of the service as prevalent in the marketplace, and online behavioral tracking.” Thus, Butler argues, the FTC would be able to prove that data abuse substantially harms consumers and correctly uses its [proposed] authority to enforce privacy rules against technology companies.

Earlier this year, FTC chair Lina Kahn approved revisions to its Magnuson-Moss procedures, making it easier for the FTC to conduct its process for developing and issuing privacy rules. The rules grant the chair the authority to serve as the Chief Presiding Officer of the rulemaking hearing process, grants the commission the authority to control the conduct of the informal hearings, and eliminates a rule requiring the commission staff to publish a report analyzing the final rule before it is established as official agency policy.

Kahn said the changes to the rulemaking process will remove “extraneous and onerous procedures” that only delay the issuance of FTC rules.

FTC process could “surface” issues

Despite the difficulty of issuing privacy regulations, Vladeck said there may be value in initiating the process anyway, including “to surface the issues” of privacy and data collection by ISPs.

Vladeck highlighted “illegal dark patterns” as an example of a narrow issue the FTC can go after. The FTC characterizes “dark patterns” as methods companies use to keep consumers trapped in subscription services.

“The FTC is the only policeman on this beat,” Vladeck said, adding it could act as an effective enforcement regime against data abuses that affect consumers.

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