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Data Privacy Regulation Will Undergo Subtle But Massive Shift Due to the Coronavirus, Experts Say

David Jelke



Screenshot of Technology Policy Institute webcast

April 10, 2020 – Data privacy regulation will undergo a subtle but massive shift due to the coronavirus, according to panelists in a webinar hosted by the Technology Policy Institute on Tuesday.

“The pandemic has revealed ways in which tradeoffs need to be made with privacy,” said Jane Bambaur, a law professor at the University of Arizona. Decisions about data privacy during coronavirus need to be “made with clarity so that [data] can be shared in real time when it’s most needed and most important.”

Whatever decisions are made should also make sense in a post-coronavirus landscape, Bambaur said, since “we are all under house arrest right now.”

Tom Lenard, Senior Fellow and President Emeritus of the TPI, said that data collection regulation should be loosened in a time of crisis since widespread data-tracking has a benefit to society.

He compared mandating data-sharing to the individual decision of parents deciding whether to vaccinate their children, which is a right but one that when exercised can harm society at large.

Liad Wagman, a spokesperson for the Federal Trade Commission, wondered about whether the U.S.’s approach to data privacy following coronavirus will be similar to action following the terrorist attacks of September 11, 2001.

At that time, he said, the country saw a “tradeoff between security and privacy.”

Furthermore, whatever changes made in response to the pandemic will probably “stay on the books” years later.

In fact, the FTC published a report following the 19 states who loosened their data privacy laws following 9/11. It found that those laws largely stayed on the books 18 years later.

Alan Raul, a partner at the privacy and information law practice of  Sidley Austin LLP, said he had seen “a ground shift among the key players” in the data privacy landscape.

European Data Protection Board officials have said that the General Data Protection Regulation, Europe’s precedent-setting data privacy law, “is not going to get in the way” of the continent dealing effectively with COVID-19.

Even the non-profit data privacy advocates have indicated that, “with appropriate safeguards,” they are OK with loosening of data privacy laws that will better help track the spread of disease.

“Privacy is a really important value,” Raul said, “but we need to be reasonable about it.”

Panelists also locked horns over data privacy violations that cause harms that are considered “intangible but still concrete.”

Raul argued in favor of applying cost-benefit analysis to these less easily quantified data violations, examples of which include the Cambridge Analytica scandal. The scandal involved an array of data monitoring measures, including some attempting to American voters in 2016, as well as elsewhere.

Raul argued that intangible but concrete values such as “human dignity” are on the line during those kinds of violations.

But Bambaur shot back that applying cost-benefit analysis to every one of these types of violations “is exceedingly difficult.” Furthermore, she argued that microtargeting itself can’t be a harm because then “the internet will be illegal.”

Raul analogized his background in environmental work to the early problems with conducting a cost-benefit analysis of environmental threats.

However, as technology became feasible, and even sensible, as it developed. “In the privacy realm, they don’t even try” to assess the cost-benefit analysis, he complained.

David Jelke was a Reporter for Broadband Breakfast. He graduated from Dartmouth College with a degree in neuroscience. Growing up in Miami, he learned to speak Spanish during a study abroad semester in Peru. He is now teaching himself French on his iPhone.


National Plan Required For Consumer Privacy, Congresswoman says

Samuel Triginelli



Screenshot of Suzan DelBene from C-Span

April 1, 2021 — A Congresswoman from Washington State, who introduced federal legislation that would be the first national consumer privacy law if adopted, says the federal government is being outpaced by some states that are implementing their own consumer privacy legislation.

“There is a significant problem with consumer privacy in the US,” said Representative Suzan Delbene on Tuesday during a New Democratic Network event. Delbene introduced her Information Transparency, and Personal Data Control Act, a wide ranging federal privacy legislation, on March 10. Delbene is the vice chair of the Ways and Means Committee, and is the chair of the House New Democrat Coalition caucus.

There is no federal data privacy law, which has forced some states to pursue their own consumer data policies. That includes California and, recently, Virginia. Some have said the concern is that there will be a patchwork of different privacy legislation that may end up just confusing Americans.

“We need a uniform set of rights for consumers and businesses standards to follow in the digital world,” DelBene said.

The bill states that companies must provide privacy polies in plain language, must allow users to opt-in for personal information gathering, must disclose who personal information is being shared with, and must submit to privacy audits every two years. The federal law would also give the government the ability to preempt existing state laws.

Simon Rosenberg, president of New Democrat Network, said about the bill that, “together, we have a lot of work to do in the coming years to restore the promise of the Internet. One of the areas of greatest need is creating a single working privacy standard for the United States.

“In her bill, the approach Representative DelBene takes to protecting Americans’ privacy is smart, measured, and will undoubtedly be highly influential in shaping the approach Congress takes in the days ahead. It is a very welcome addition to the vital debate underway about our digital future,” Rosenberg added.

The purpose of this bill is to ensure that privacy policies are transparent and clear. “Many consumers are given lots of information with lots of legal terms, that leads them to click the accept button without knowing what they have signed up for,” DelBene said.

“There is an urgent need for consumers to understand what data is being shared,” she added. “We want to make sure there is enforcement. The law says that this will be the responsibility of the Federal Trade Commission, so the FTC must have the resources to do this.

“I think my bill is focused on privacy specifically because I think it is foundational. We build on important things, such as AI, facial recognition, and all the other issues we need to address. If we don’t start addressing the issues of data privacy, it will be hard to imagine how it will the expansion of laws to address a broader set of issues that need to get ahead of.”

Congresswoman DelBene believes the bill can be bipartisan, but she wants to make sure Congress understands its importance. “I’m not sure Congress understands these issues, so it takes a collective effort to push it forward.”

DelBene says she’s confident that Congress will follow the bill, despite many congresspeople who she said are hesitant to take that first step.

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Attach Strings To Data Collection To Combat Surveillance Capitalism, Experts Suggest

Samuel Triginelli



Photo of Marietje Schaake from the European Parliament

March 29, 2021 – Laws addressing how much data can be collected should be among new regulations that must ensure data collection from big technology companies doesn’t harm Americans, according to a March 17 panel of academics at the South by Southwest conference.

The era of corporate self-regulation is now up, said Marietje Schaake of the Standford University Cyber Policy Center and panelist at SXSW conference discussing the “techno-democratic” approach to Big Tech, including what to do about surveillance capitalism.

Surveillance capitalism is an economic system centered on commodifying personal data with the core purpose of profit-making.

“We have heard many pledges, many promises, and good intention offers for solutions for self-regulatory initiatives. And the time is out for those,” she said.

Schaake said it is time the government attach consequences to data collection to the detriment of the public and to set clear limits on collection practices.

“We have tried for too long, and it has led to several distractions and lost time to make sure that the rule of law is leading and that there are enforceable accountable, transparent expectations placed on these companies,” she said.

Joan Donovan, a social scientist at the Harvard Kennedy School, said what’s critical is how much data tech companies should be allowed to collect and under what conditions should they sell it to ensure rights aren’t violated.

“The tech sector as it is built now, relies on harvesting so much data about an individual that their products and the entire economy they are built on could not exist” if there were robust rights and privacy protections in place, Donovan said.

She said the discussion about regulating these businesses should include moving from a focus on protecting enterprise to protecting human rights.

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House Energy and Commerce Chairman Frank Pallone Calls for Update to Children’s Privacy Legislation

Derek Shumway



March 11, 2021 – House Energy and Commerce Committee Chairman Frank Pallone, D-N.J., on Thursday called for an update to the Children’s Online Privacy Protection Act at subcommittee hearing on “Kids Online During COVID: Child Safety in an Increasingly Digital Age.”

“The challenges children face online existed before the pandemic, but it’s only gotten worse,” he said.

Visiting in person with extended family and friends have so far become a thing of the past as the COVID-19 pandemic continues. Many other in-person activities have been replaced with video games, social media, and other video services.

Kids’ screen time has doubled during the pandemic, said Pallone. The effects of too much screen time can increase instances of anxiety, sleep deprivation, obesity, and cyber bullying, he said.

The increased screen time due to the pandemic has turned consumers into victims of what he called harassment and dark pattern manipulation led by advertisers. Children cannot defend themselves like adults in managing these predatory practices, he said.

“Despite laws to protect children’s privacy, data collection and tracking of children is disturbingly prevalent.” He went on to criticize many apps targeting children on mobile devices are notorious for collecting personal information, which is then bought and sold, resulting in advertising meant to manipulate children.

He said that digital ad spending specifically targeting children was expected to reach $1.7 billion this year. COPPA, which hasn’t been updated since 2013, needs to be updated because, he said, internet companies have since continued to target children.

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