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Experts Say That Federal Privacy Law is Necessary, But Can’t Agree on Specifics

Emily McPhie

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WASHINGTON, July 11, 2019 — Congress urgently needs to create a federal privacy law, said panelists at a privacy conference held by the U.S. Chamber of Commerce on Thursday. However, coming to a consensus on the specifics of such a law has been and will continue to be a major roadblock.

Lawmakers have to create a policy that is “sufficiently agile to accommodate new uses of data that none of us can even conceive of right now,” said Ernest & Young Americas Privacy Leader Angela Saverice-Rohan.

Privacy standards are dependent on shifting cultural norms and constantly evolving technology, Saverice-Rohan said, and so Congress should focus on allowing context-dependent consumer choice. To make these choices effective, companies will need to simplify the terms and conditions of their privacy policies.

The current paradigm of legalistic privacy notices doesn’t work, explained Jerry Jones, executive vice president of LiveRamp. Privacy policies should be built with simple, standardized language that gives people clear control over what their data is used for.

Even with such changes, the consumer is a “terrible person to make decisions,” said Chris Calabrese, vice president of policy at the Center for Democracy and Technology. He claimed that most consumers lack both the technical knowledge to make decisions and the market power to influence them.

Instead, he said, the main burden should be shifted to the data processors, and particularly sensitive categories of information like location or biometrics should be strongly protected—to the point of not allowing any secondary use of the data whatsoever.

Calabrese’s suggestion drew criticism from other panelists such as Future of Privacy Forum Vice President John Verdi, who argued that when users affirmatively and aggressively make an informed request for a secondary use of their data, it should be permitted.

Protecting data without considering the uses of that data is flawed thinking, said Steve Rubley, managing director of government at Thomson Reuters. Public records are “absolutely critical” to preventing terrorist attacks before they take place, breaking up sex trafficking rings, and locating abducted children, among other important uses.

An individual’s reasonable right to privacy should be balanced against the significantly increasing societal benefits of sharing that data in careful and responsible ways, Rubley said. Saverice-Rohan agreed that laws should be risk-based, emphasizing the part that the free flow of information has played in important data-driven innovations.

Moreover, she said, laws must represent the technological reality of today. Implementing the California Consumer Privacy Act has proven to be a technical challenge for many companies, and having to deal with disjointed, frequently changing, and sometimes even contradictory sets of rules across the globe requires significant time and resources.

The effort to implement CCPA while the law is still being amended is akin to “building a plane and flying it at the same time, said Hogan Lovells Partner Mark Brennan, and companies are spending as much time trying to understand what the requirements mean as they are operationalizing them.

To avoid similar concerns, the federal privacy law should focus on clarity, said Calabrese. However, panelists agreed that the need for thoughtfulness did not diminish the need for timely action.

Ideally a law would be passed tomorrow, but Congress should at least try to get something on the books before CCPA goes into full effect, said Brennan, adding that the “worst possible outcome” would be waiting until a second state tries to create equally comprehensive legislation.

Brookings Institution Visiting Fellow Cam Kerry agreed, saying that in order for a federal privacy law to work, it must be implemented before more state legislatures adopt laws that make preemption intractable and before partisan positions harden.

(Photo of the Chamber of Commerce #DataDoneRight Conference by Emily McPhie.)

Emily McPhie was Assistant Editor with Broadband Breakfast. She studies communication design and writing at Washington University in St. Louis, where she is a news editor for campus publication Student Life. She is a founding board member of Code Open Sesame, an organization that teaches computer skills to underprivileged children in six cities across Southern California.

Broadband's Impact

House Commerce Committee Aligned on Telecom, Mapping and Supply Chain Security, Says Ranking Member

Derek Shumway

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Photo from Rep. Cathy McMorris Rodgers' website

March 18, 2021 – House Energy and Commerce Committee Ranking Member Cathy McMorris Rodgers, R-Washington, said Wednesday that the committee was among the most bipartisan on issues including telecom.

Rodgers, who was speaking at the Internet Innovation Alliance with co-chair Bruce Mehlman, said that her Republican colleagues have put forth 28 solutions that would remove regulatory barriers and streamline broadband processes yet demonstrate funding is being spent wisely. She called on the government to ensure cost-effective ways to spend federal dollars.

She said the committee’s priority must be on accurate broadband mapping. That requires funding for more granular data. She also argued for national security against China, including on solar and wind energy products.

Rodgers also said she was excited about low-earth orbit satellites and the potential future they bring in connecting parts of the country with internet that have been “economically unfeasible in the past.”

Asked of her thoughts on virtual learning from home, especially how her 14-year old son with down syndrome is faring, Rodgers said she was completely in favor of reopening schools safely because not all parents have the means to provide optimal learning spaces at home.

Calling herself a working mother who could afford to provide an assistant to help her son through his school day, Rodgers said it was not the best way to learn when compared to in-person schooling.

This came after she said the country has the best networks and “some of the fastest speeds at the lowest prices in the world for internet service.”

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Congress

Former FCC Commissioners Reflect on Changes Since 1996 Telecommunications Act

Tim White

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Former Federal Communications Commissioner Mike O'Rielly on the webinar

February 9, 2021 – As 2021 marks the 25-yearanniversary of the Telecommunications Act, former Federal Communications Commissioners Mike O’Rielly and Harold Furchtgott-Roth reminisced Monday on their time in Congress as staff members when the law was passed. The Hudson Institute hosted the conversation.

The Telecommunications Act was the first major update to telecommunications law since 1934, and the two former commissioners reflected onhow much the internet has shifted the focus of technology legislation.

O’Rielly said the “heart of the legislation” was looking at local and long-distance telephone company markets and opening them to more competition, but “no one knew at the time that the internet would go in a different direction,” he said.

“No one really figured out at the time what was going to happen as broadband and online technology would take over from circuit-switch technologies,” agreed Furchtgott-Roth.

“These markets that we thought were so important back in 1996, long-distance services, they don’t exist anymore,” he said. “Technology has changed and provided a different and a superior form of competition than the [Act] could have ever imagined,” he said.

Four of the biggest tech companies today—Amazon, Google, Facebook, Tesla—didn’t even exist 25 years ago, Furchtgott-Roth said, using them as examples of how much technology and the market has changed. “All of which have a very active role directly or indirectly in the communication space,” he said.

The two also expressed surprise at how prominent some of the law’s provisions have become, and how rarely the FCC uses other provisions.

O’Rielly said that even though the preamble to the law was written as a description and had no legal merit, that language “has been abused” by courts and by the FCC even though, in his view, the preamble is “something that has no statutory weight.”

Section 230 a new focus for concern

In recent months Section 230 of the Act, which grants immunity to online platforms for content provided by their users, has become a major conversation for Congress and in public discourse, due to controversial topics like the election, COVID-19, and the U.S. Capitol riot on January 6, which led to Donald Trump’s ban from Twitter and Facebook, and the shutting down of Parler, a conservative-led competitor to Twitter.

“Everyone agrees that Section 230 is worthy of review or some type of reform, but they come from different perspectives,” O’Rielly said. Republicans and conservatives are worried about censorship on the online platforms, while Democrats on the other side are worried about the spread of misinformation without any correction or policing, he said. “Those two things make it really hard to find a middle ground, even if everyone agrees on the overall premise of some type of reform,” he said.

Furchtgott-Roth mentioned two parts of the Act that he thought would have been used more often. First, the forbearance clause from Section 10, which gives the FCC the option to not enforce parts of the Act if certain conditions are met by entities. Second, regulatory review from section 11, which allows the FCC to review its own rules.

On being questioned about reforming the Telecommunications Act, O’Rielly said that Congress needs to be forward thinking, not constantly fixing previous legislation, and that they need to be specific in their statutes for what they want and do not want federal agencies to do.

The anniversary also received praise from members of Congress and industry groups on Monday. Rep. Anna Eshoo, D-Calif, and Sen. Ed Markey, D-Mass and co-author of the Act, said Congress must revisit the law to bring up-to-speed demands for better broadband.

Meanwhile, FirstLight Fiber CEO Kurt Van Wagenen and Incompas CEO Chip Pickering suggested the new-look White House and Federal Communications Commission make broadband deployment a top agenda item to usher in connectivity in underserved areas.

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House of Representatives

Emphasis on Combating COVID-19 and Rebuilding Infrastructure at First Energy and Commerce Meeting

Derek Shumway

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Photo of Rep. Frank Pallone, Jr., Chairman of the House Energy and Commerce Committee, by Bonnie Cash used with permission

January 28, 2021—During the first organizational meeting of the House Commerce Committee of the 117th Congress, Chairman Frank Pallone of New Jersey welcomed the newest members of the House Energy and Commerce Committee.

The bulk of the Committee’s first meeting was dedicated to discussing best practices to reduce healthcare and prescription drug costs, rebuild and modernize the nation’s infrastructure, and combat climate change.

Members further discussed rebuilding and restoring the essential functions of key agencies. Strengthening the Center for Disease Control and the Environmental Protection Agency were deemed essential. Members considered the waning of the two agencies to be at “the very heart” of creating some of the nation’s most pressing current legislative and policy issues.

Members also approved governing procedures and announce subcommittee chairs, ranking members, and other subcommittee assignments.

Republican Rep. Cathy McMorris Rodgers of Washington is  the new ranking member, and the first woman in that role for the committee.

Pallone further announced Democratic members joining the Committee, including Rep. Kathleen Rice of New York, known for her interest in climate change and infrastructure. Rep. Angie Craig, of Minnesota, was touted for work on the Affordable Care Act. Rep. Kim Schrier of Washington was recognized for her work as a pediatrician.

Rep. Lori Trahan of Massachusetts has an interested in the opioid pandemic and the environment. Rep. Lizzie Fletcher of Texas is focused on first responders and firefighting foams.

Pallone addressed members of the committee in the 117th Congress

Pallone thanked members and reiterated the need to enact policies to combat COVID-19 through vaccine distribution. He criticized former President Donald Trump for lacking effective implementation strategies to vaccinate more Americans sooner.

He said policies were needed that “provide critical assistance to struggling families, rebuild our economy, and bring an end to the pandemic, so people can begin to safely return to regular practice of life.”

Pallone praised President Joe Biden’s executive orders on vaccine distribution, expanded access to testing, and utilization of the Defense Production Act, which allows continued access to medical supplies and personal protective equipment for testing and vaccination.

The committee also took time to celebrate its own 225th birthday, which occurred last month. It is the oldest committee in the House.

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