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Consumer Privacy Must Rise To Priority In Biden Agenda, Experts Urge

FCBA panelists discuss data privacy and consumer protection challenges for the Biden administration.



Photo of Dona Fraser of Better Business Bureau

April 27, 2021 – Consumer data privacy needs to be a high priority for the Biden administration, according to panelists at a Monday event hosted by the Federal Communications Bar Association.

From gaming apps to social media to telehealth, consumer data is an essential component of the digital age and a core business model for tech companies. FCBA panelists discussed how to protect consumer privacy in online spaces.

With several states passing or discussing data privacy legislation, including California, Virginia and Washington, the pressure is mounting for the federal government to take action on this issue.

There is great anticipation for the Biden administration to push for federal privacy legislation, said Dona Fraser, senior vice president of privacy initiatives at the Better Business Bureau. One of the current challenges is that states are passing their own privacy laws, and tech companies need to solve the compliance issue across state lines, she said.

Melissa Maalouf, counsel at tech law firm Zwillgen, expressed similar sentiment. Companies need to navigate the patchwork of data laws in the U.S., she said. Taking all levels of government into consideration, including federal, state, and municipal, there’s over 300 laws on the books right now related to data privacy, and they’re all different, she said.

Social media and Section 230

Social media companies and internet liability provision Section 230 are in the spotlight right now, and changes to content moderation, competition among the tech platforms, and transparency in their algorithms are all issues that need to be dealt with, said Chris Lewis, CEO of Public Knowledge. Good policy is in the details, but right now it’s becoming a race to the bottom for government to handle tech policy, he said.

There’s very little government authority on broadband unless something changes, and when it comes to tech platforms and Section 230, there is no authority and no accountability, Lewis said. Artificial intelligence and algorithms are not magic, he said — they’re built with math and computers and the companies need to be held accountable for them.

Consumers use many apps of all types, many of them are games or other entertainment, but some of them serve essential functions, such as medical or telehealth, especially during a pandemic, said Brian Scarpelli of ACT, the App Association. Policy needs to be carefully drafted to ensure the protection of those important apps, based on evidence rather than partisan politics or hyperbole, he said.

Agency work on consumer privacy 

While legislation on data privacy is being considered, federal agencies are tackling consumer privacy under current law as well, such as the Federal Trade Commission’s work on COVID-19 scams.

They’re handling discriminatory actions in advertising and algorithms that use data for deceptive practices, said Frank Gorman, acting deputy director of the Bureau of Consumer Protection at the Federal Trade Commission. But they also include other fraud cases like fake stimulus checks or medical equipment, he said.

At the Federal Communications Commission, robocalling is still the number one complaint the agency receives, said Diane Holland, legal advisor for Commissioner Geoffrey Starks’ office at the agency.

To address that problem and help protect consumers from scams, they have to use every tool in the toolbox, she said.

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Experts Wrangle Over Whether Online Children Protection Legislation Needs Overhaul

‘We can’t keep overhauling the regulatory structure.’



WASHINGTON, June 21, 2022 – Observers at an Information Technology and Innovation Foundation event on Wednesday urged Washington not to take legislation protecting children online down the path of congressional overhaul, instead preferring guidance for the existing text to come from its administrator, the Federal Trade Commission.

The Child Online Privacy Protection Act, passed in 1998, includes online data protections for children under 13. In 2013, as designated by Congress, the FTC updated enforcement rules, giving parents more control over the online collection of their children’s personal information.

Since then, new advances in technology and social media has brought COPPA to the attention of many who consider substantive changes are needed, including privacy experts, senators and U.S. President Joe Biden, who addressed it in his State of the Union address earlier this year.

Some lawmakers have long called for an age increase for those protections through legislative reforms, which came before lawmakers this month introduced a proposal for the first federal privacy law, which would include data privacy protections for children under 17.

“We can’t keep overhauling the regulatory structure,” said Julia Tama, partner at law firm Venable LLP. “It takes a big investment for companies to come up to speed.”

Instead, she said, she wants “improvements on what we have rather than replacing it with a completely different framework.”

In May, the FTC issued a policy statement that will guide its enforcement of COPPA. It focused on four provisions: limiting the amount of data collected for children’s access to educational tools; restricting types of data collected and requiring reasons for why they are being collected; prohibiting ed tech companies from holding on to data for speculative purposes; and prohibiting the use of the data for targeted advertising purposes.

Graham Dufault, senior director for public policy at the App Association, said the FTC should be responsible for potential provisions made to COPPA. “The FTC’s enforcement of COPPA is a really important thing for us.”

But panelist James Cooper, associate professor of law and director of the program on economics and privacy at George Mason University, said COPPA isn’t in need of any major revisions. He said if the legislation requires change, he doesn’t want to see it done through FTC policy statements and instead should come from the crafters in Congress.

“If the FTC feels [the need to] expand COPPA beyond its current boundaries, it should go back to Congress,” Cooper said.

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Expand Online Protections for 17-Year-Olds in Draft Federal Privacy Law, Committee Urged

The draft privacy law includes a provision to enhance privacy protections online for children under 17.



Photo of the hearing held by the subcommittee on consumer protection and commerce

WASHINGTON, June 16, 2022 – Panelists before the subcommittee on consumer protection and commerce recommended Tuesday that a newly-crafted draft for federal privacy legislation introduced earlier this month include online protections for 17-year-olds.

The draft of the American Data Privacy and Protection Act, which would be the first federal privacy law, includes a provision to enhance privacy protections online for children under 17, including restrictions on Big Tech platforms’ data collection and targeted advertisements to those age groups.

But testimony from Jolina Cuaresma, senior counsel on privacy and technology policy at Common Sense Media, suggested that the language include 17-year-olds as well.

If the bill becomes law, she said this would provide a substantial upgrade to the Child Online Protection Privacy Act, which provides online protections for children under 13. “We need to cover all minors under the draft’s protections,” Cuaresma said, adding, “one in four children between the ages of 9 and 17 have had a sexual encounter with an adult online.”

With ongoing discussion about potential changes to COPPA and ensuring children’s privacy online due to increasing use of online educational tools and social media, Rep. Kathy Castor, D-Fl, stated during the hearing, “there is room for improvement in the draft for children’s protections.”

Big Tech regulation

Witnesses also said the draft should make clearer limits for Big Tech companies. Caitriona Fitzgerald, deputy director of the Electronic Privacy Information Center, said, “technology companies have too much power” and have been unregulated for too long. She urged the bill to define responsibilities more clearly for big tech companies, individuals, states, and federal entities.

Chairman Frank Pallone Jr. of the energy and commerce committee stated that if the bill passes, “our kids will be protected from abusive advertising and data transfers, and businesses will be required to protect consumer data or face real consequences.

“Comprehensive national privacy legislation is necessary to limit the excesses of Big Tech and ensure Americans can safely navigate the digital world,” said Pallone.

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Draft of Bipartisan ‘Years-in-the-Making’ Privacy Bill Released

The bill is bipartisan, and a joint effort between the House Energy and Commerce Committee and the Senate Commerce Committee.



Photo of Rep. Frank Pallone, D-N.J., from his website.

WASHINGTON, June 3, 2022 – Leaders of the House Committee on Energy and Commerce and the Senate Commerce Committee announced on Friday a discussion draft of a “comprehensive” data privacy bill that they say has been in the making for years.

The bipartisan bill overall addresses a national data privacy framework, a set of consumers’ data privacy rights and appropriate enforcement mechanisms.

The release was announced by the House committee’s Chairman Frank Pallone, D-N.J., its ranking member Rep. Cathy McMorris-Rodgers, R-Wash., and the Senate committee’s ranking member Sen. Roger Wicker, R-Miss.

In the coming weeks, we will be working with our colleagues on both sides of the aisle to build support and finalize this standard to give Americans more control over their personal data,” they said.

“We welcome and encourage all of our colleagues to join us in this effort to enable meaningful privacy protections for Americans and provide businesses with operational certainty. This landmark agreement represents the sum of years of good faith efforts by us, other members, and numerous stakeholders as we work together to provide American consumers with comprehensive data privacy protections.”

They called the release of the draft a “critical milestone.”

The proposed bill would grant Americans protections against discriminatory use of their data, require covered entities to minimize on the front end the data they collect, enforce loyalty duties and prevent customers from needing to pay for privacy, prohibit targeted advertising for covered entities, enhance data protections for children and minors and establish “regulatory parity” across the internet.

Child privacy has been a particular topic of interest on Capitol Hill, with several high profile hearings taking place with social media companies to investigate their practices of catering to teenage users.

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