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The California Consumer Privacy Act Lets People Know What Information is Collected, But Can’t Stop It

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Photo of FCBA panel by Masha Abarinova

WASHINGTON, November 20, 2019 – At its core, the California Consumer Privacy Act is a law that allows individuals to know how their personal information is used by companies, but does not protect that information from being used, legal experts said at a Federal Communications Bar Association panel Tuesday.

Consumers are essentially allowed to request how their personal data is used and can also request to opt out or have their data deleted, said Ryan Blaney, partner at Proskauer Rose LLP.

The terms of the CCPA are much broader under the CCPA than those of the European Union’s General Data Protection Regulation, said Drinker Biddle & Reath Counsel Katherine Armstrong. A person’s Social Security Number and internet protocol address, she said, are basically classified under the same category.

Regulating privacy and data security is a challenge, Armstrong continued. The CCPA is a disclosure law that allows consumers to ask that their data not be sold. What constitutes as “sold” in the statute has too much of a broad scope.

There is a big difference she said, between data collected from consumers and data collected about consumers.

The creation of CCPA — which, although passed in 2018, goes into effect on January 1, 2020 — stems from the possibility that people have been misinformed about their privacy rights, said Eulonda Skyles, partner at Baker McKenzie. Before the privacy laws over the few years, companies such as Google and Facebook have had ways for users to view their collected information and have had the choice to delete it.

Most big tech companies are in support of comprehensive privacy legislation, said John Heitmann, co-chair at the FCBA Privacy and Data Security Committee, as it benefits them financially and brings in more consumers.

However, he said, the EU and U.S. seem to have different perceptions of privacy, which could be why the CCPA differs from the GDPR.

Europe takes privacy and data breach issues much more seriously, said Jacqueline Cooney, senior director of privacy and cybersecurity at Paul Hastings. Whereas in the U.S., people tend to think more economically about their data. They would be fine with their data being sold if it saved them money, she said.

Barring sensitive financial information, Armstrong said, privacy isn’t defined the same for everyone, especially if it involves day-to-day habits. In that sense, a federal data breach law seems more efficient and practical than a wide-scope privacy law, she said.

To prepare for the CCPA guidelines, companies are operationalizing mechanisms to avoid fraudulent data requests. The statute offers ways to identify with “reasonable certainty,” said Skyles. Companies should not release “black box” information, such as SSN and passport number without complete verification, but they should also not neglect user requests that might be deemed insufficient.

There are three main steps companies should take to adjust to CCPA, Blaney said. First, they should map consumer data and classify the type of personal information that they have. Second, the companies should disclose to the public how that information is treated, using external facing documents. Finally, they should operationalize their method of compliance and figure out how to respond to consumer requests.

Ultimately, CCPA leaves several potential gaps in protecting privacy. The law only applies to private companies, Heitmann said, excluding government agencies and nonprofits. Individuals have the right to request deletion of their data, he said, but the exceptions to that rule are huge.

Robocall

Lawmakers, FCC Take More Action Against Illegal Robocallers

There are new proposed rules that offer legal protections to those aiding in enforcement efforts against illegal robocalls.

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Rep. Bob Latta, the primary sponsor of the Robocall Trace Back Enhancement Act

WASHINGTON, April 27, 2022 – Regulators and legislators in Washington continued their efforts to curb unlawful telephony use with proposed rules designed to crack down robocalls.

On Wednesday, Rep. Bob Latta, R-Ohio, introduced the Robocall Trace Back Enhancement Act – an amendment to the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act.

If signed into law, the bill would provide legal immunity for a broad range of entities engaging in private efforts to track, surveil, and report on illegal robocalling scams.

The protected parties include registered consortiums that handle call receiving, sharing, and publishing and all voice service providers and any informants that share covered information.

It would also grant the Federal Communications Commission jurisdiction to take enforcement actions based on the information collected during the aforementioned activities.

FCC measures on cease-and-desist letters

In addition to this legislation, as part of her agenda to combat scam calls, on April 26 FCC Chairwoman Jessica Rosenworcel proposed closing a loophole to the STIR/SHAKEN regime afforded to small telcos.

Most telcos are required to adhere to cease-and-desist orders regarding illegal spam-calls and generally comply with actions taken by the FCC. The loophole in question gave smaller telcos greater latitude in how they chose to respond to FCC requests.

If adopted, the proposed regulation would require small telcos to abide by cease-and-desist orders, participate in robocall mitigation, cooperate with FCC enforcement, and take responsibility for facilitating illegal robocall traffic.

“International robocallers use these gateways to enter our phone networks and defraud American consumers,” Rosenworcel said in a statement, “We won’t allow them to bypass our laws and hide from enforcement.”

The new rule will be voted on at the FCC’s open meeting on May 19.

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Privacy

Federal Privacy Legislation Needed As State Legislation Could Harm Smaller Players, Event Hears

Different state privacy laws stifle competition and places burdens on small companies, experts say.

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Maneesha Mithal (far-left), Sara Collins (middle-left), Lartease Tiffith (middle-right), Brandon Pugh (far-right) on stage at "Beyond the Basics: The Many Pillars of a U.S. Privacy Law"

WASHINGTON, April 25, 2022 – While experts agreed that federal legislators need to take action on comprehensive privacy legislation, they disagreed on the specifics of how such regulation should be enforced.

Though some states have begun to establish their own frameworks for consumer privacy regulation, each framework puts forth different standards that online platforms would have to adhere to. These varied frameworks have raised concerns among many experts who consider a patchwork of legislation to raise the bar of compliance – a bar that could be lowered by federal legislation.

During an R Street panel on Monday, experts from the technology industry weighed in on the matter with their perspectives.

In March, Utah joined  California, Colorado, and Virginia and became the fourth state to successfully pass consumer privacy legislation. Several additional states, including Florida, Massachusetts, New York, and Connecticut have experienced mixed success with their bills and have not yet signed anything into law.

Lartease Tiffith, executive vice president for public policy at the Interactive Advertising Bureau, said that the US is an outlier among developed countries. “We are one of the few developed countries that [does not have a federal privacy law],” he said. “I think that in order to reflect the same common values as our colleagues who are in Europe and elsewhere around the world, we need [to make] one.”

Beyond the international perspective, Tiffith also emphasized domestic justifications for federal legislation. “I cannot think of a subject matter that is not more under the purview of Congress than interstate commerce,” he said. “The internet is everywhere – it is not limited by borders. So, we need to have one standard, one set of laws. It should not matter where you live – California, Utah, Virginia, Colorado – you should have the same basic privacy rights as anyone, anywhere.”

Various state legislation harder for smaller companies

Tiffith also explained that a patchwork of regulation would hit smaller businesses the hardest. “If you are a small or medium sized business and you are looking at investing more money into your products and service and delivering and reaching customers – you want to do that rather than spending time on hiring more lawyers to deal with ever complicating regulations.

“We need this for the next set of Amazons and Googles of the world to exists,” he said.

While the panelists were able to agree on the fact that current patchwork of laws is not sustainable, they did not agree on how to enforce a federal framework.

A federal body for consumer data protection

Sara Collins, senior policy counsel for internet advocacy group Public Knowledge, voiced benefits to creating a new data protection authority in the US – a body distinct from the Federal Trade Commission – that would focus expressly on matters related to consumer data protection.

Tiffith pushed back, however, arguing that the FTC already does a good job at handling these issues, and is only held back by what he views as under-resourcing. “If you compare the FTC to other protection authorities, they are very under-resourced,” he said. “So, I think instead of us standing up a whole new data protection authority, I think instead, let’s invest that money in the FTC, give them some rules, some limited rulemaking authority, and let’s give them a lot more staff and a lot more money.

“Let them be the cop on the beat,” he said.

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Robocall

FCC Announces Majority of States Now Signed Onto Robocall Investigation Partnership

The FCC signed on five states this month and seven last month.

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Illustration from C-Zentrix

WASHINGTON, April 7, 2022 – The Federal Communications Commission said Thursday it has partnered with further five more state attorneys general to combat illegal robocalls.

The agency said Thursday it had signed on Alaska, California, Tennessee, Pennsylvania and Washington state to investigate the robocalls, which can lead to scams. Thursday’s news comes on the heels of a March 28 announcement, when the agency said it signed similar memorandum of understanding with Connecticut, the District of Columbia, Idaho, Kentucky, Minnesota, New Jersey, and Wyoming.

Altogether, the agency, which announced the federal-state partnership effort in February, said it has signed on the majority of the United States.

“It shows that we are united when it comes to fighting robocalls—urban, rural, north, south, east, and west,” said FCC Chairwoman Jessica Rosenworcel. “Today I invite every state and U.S. territory to join this effort and establish information sharing and cooperation structures with the FCC so we can work together to investigate and put an end to spoofing and robocall scam campaigns.”

The agency, which has made fighting illegal robocalls a key mandate, has previously credited states with catching those that allow robocalls.

Earlier this month, the FCC credited the North Carolina Department of Justice in an investigation that identified thinQ Technologies as a “facilitator” of robocalls. The agency, which is working with the Traceback Consortium to identify the culprits, has already sent more than a dozen cease and desist letters to those it has identified in investigations.

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