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Positive and Negative Responses to Committee’s Action on American Data Privacy and Protection Act

The American Data Privacy and Protection Act cleared committee 53-2, with pushback from California legislators.

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Photo of House Energy and Commerce Committee Chairman Frank Pallone Jr. from eenews.net

WASHINGTON, July 21, 2022 – While the passage of national privacy legislation out of the House Energy and Commerce Wednesday was generally applauded by many, concerns were still expressed as to how an enacted form of the bill will interact with state’s own privacy laws.

During Wednesday’s markup of the American Data Privacy and Protection Act, H.R. 8152 – which passed by a 53-2 vote in committee – Reps. Anna Eshoo, D-Calif., and Nanette Diaz Barragán, D-Calif., voted against the bill after they expressed concern it would override California’s own privacy laws. Eshoo proposed her own amendment, a flexibility mechanism which would allow states to add their own privacy provisions on top of a federal baseline, but it was not adopted.

“[The federal law] calls into question the state agency’s authority to enforce privacy protections, and it prevents California from strengthening privacy protections in the future,” said Eshoo in a statement, adding she sees it as an improvement for much of the rest of the country.

Meanwhile, in a statement following the passing of the bill – which must go through a vote on the House floor– the technology group Computer and Communications Industry Association said that while the prospect of a national privacy law is promising, there is concern about a preemption clause in the bill that would “allow states to enact their own privacy laws that could be independently and inconsistently enforced by various state and federal actors.

“Congress has a real opportunity to pass meaningful federal privacy legislation with uniform ‘rules of the road’ that will protect individuals while enabling innovation,” said the trade group’s president Matt Schruers. “But legislators must avoid the possibility of a patchwork quilt of state regulations and regulators that would tie up innovators with inconsistent and unnecessary compliance obligations. We look forward to working with Congress to ensure that privacy legislation creates a sustainable and uniform national privacy policy.”

The ADPPA formulates a national data privacy framework, a set of consumer data privacy rights and appropriate enforcement mechanisms, including children’s privacy and harmful online content.

Others praise long-awaited bill

“Free Press Action is eager for this long-awaited moment to place civil rights at the forefront of online protections, and as the centerpiece of this truly thoughtful and hard-won compromise,” said Matt Wood, vice president of policy and general counsel at media advocacy group Free Press Action

In another statement, consumer organization Consumer Reports supported a stronger bill than its previous iteration. “The bill is considerably stronger today than it was a month ago,” said Justin Brookman, its director of technology policy. “We’d like to see more refinements, but there’s no doubt that this bill offers real privacy protections that don’t exist today. We look forward to continue working with policymakers on the legislation to ensure the digital rights of Americans are truly protected.”

Trade group US Telecom’s also weighed in, with Brandon Heiner, senior vice president of government affairs, commending the committee for passing bill.

“While there is more work to be done,” Heiner said, “we look forward to continuing to work with Congress to ensure any privacy law provides all of America’s broadband customers the protection they deserve.”

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Robocall

Public Knowledge Urges VoIP to Be Regulated Under Title II to Stop Robocalls

Title II would require VoIP services to be subject to stronger regulations already in place for telecommunication providers.

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Photo of Harold Feld, Senior Vice President of Public Knowledge

WASHINGTON, August 18, 2022 – Public Knowledge is asking the Federal Communications Commission to classify facilities-based voice over Internet protocol services under Title II of the 1934 Communications Act, which it said would help the commission tackle robocalls.

The non-profit public interest group last week amended a March petition to the agency narrowing the field of VoIP providers to be captured under its proposal to facilities-based interconnected VoIP services, which require a broadband connection for real-time voice communications on the public telephone network. That’s instead of a broader field including non-interconnected services, which allow voice communications through a device not connected to the phone network, like gaming consoles.

Title II specifies authority given to the FCC to regulate “common carriers” – utilities such as landline phones, telecommunication services, and electricity. Currently, VoIP services are not included in any specific classification. Instead, the FCC relies on rules based on its ancillary authority given under Title I of the Communications Act, which provides less regulatory authority to the commission.

If classified under Title II, VoIP providers would be beholden to service quality regulations, such as the prevention of ever-increasing robocalls, and to regulations ensuring affordable access to infrastructure for competitive carriers, Public Knowledge said in its petition.

The organization also said that new categorization would prevent a “crisis of legal authority” for the FCC, which already makes VoIP services subject to certain Title II regulations, such as contributions to the basic telecommunications program, the Universal Service Fund. Currently, Public Knowledge argues, regulations governing VoIP services are a collection of ad hoc rulings based on ancillary authority.

Lack of classification ‘threatens’ FCC ability to fulfill legislative mandate

Congress “deliberately used expansive terms” when defining telecommunications in the Telecommunications Act of 1996, which gave the FCC authority to regulate sectors within the communications industry, said the March petition. “At a minimum, Congress intended the FCC to regulate any service that behaves like a traditional telephone service – regardless of the underlying technology – as a telecommunications service,” read the petition.

Yet despite a lack of meaningful difference between VoIP and traditional telephone services, the FCC continues to treat VoIP services differently, said the petition. This “failure” of the FCC to classify VoIP under Title II allegedly frustrates the commission’s ability to effectively address robocalls and makes uncertain whether the commission preempted its authority to regulate VoIP services.

“The FCC’s failure to classify facilities-based interconnected VoIP threatens the ability of the FCC to fulfill the most basic responsibilities entrusted to it by Congress,” stated the petition.

The burden of Title II

In a blog post on the matter, communications law firm CommLaw group argued that Title II VoIP providers would likely be required to obtain FCC approval prior to transfers of assets and mergers and acquisitions, which it said would slow transaction speed considerably. Furthermore, it could open the door to “increased state regulatory oversight, requirements, and burdens,” it added.

Earlier this month, Democratic Senators introduced a bill that would give the FCC regulatory authority over broadband by classifying those services as Title II. It would allow the commission greater regulatory authority to make internet service providers respect principles of net neutrality, which prohibit providers from throttling traffic on their networks, participating in paid prioritization, or blocking of any lawful content. The bill, however, has been met with opposition.

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Privacy

Online Protections for Children Bill Passes Committee Despite Concern over FTC Authority

Opposition to a reformed COPPA include the ability of the FTC to enact broad rule-making.

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Photo of Senator Edward Markey, D-Mass.

WASHINGTON, July 28, 2022 – The Senate Committee on Commerce, Science and Transportation approved two online privacy protection bills in a Wednesday markup, including an update to legislation that will increase the age for online protection for children.

An update to the Children and Teens’ Online Privacy and Protection Act (S.1628) – which originally passed in 1998 but had amendments proposed last May – would see the age of protections increase from 13 to 15, meaning large internet companies will be prohibited from collecting the personal information of anyone under 16 without consent and ban targeted marketing to those children. The bill passed via voice vote.

Other provisions in the bill include a mandate to create an online “eraser button” that will allow users to eliminate personal information of a child or teen; implement a “Digital Marketing Bill of Rights for Minors” that limits the collection of personal information from young users; and establish a first-of-its-kind Youth Privacy and Marketing Division at the FTC,” according to a summary of the bill’s key components.

“The Senate Commerce Committee this morning took a historic step towards stopping Big Tech’s predatory behavior from harming kids every day,” Senator Edward Markey, D-Mass., who introduced the amendments, said Wednesday.

The other bill, the Kids Online Safety Act (S.3663), will give parents enhanced control over their children’s online activities to “better protect their health and well-being.” The bill, introduced by Senator Richard Blumenthal, D-CT, and Senator Marsha Blackburn, R-TN, passed 28-0.

The bill would put in place additional safeguards and tools, such as platforms giving minors options to protect their personal information and to disable recommendations.

“I don’t think we’ve ever had a piece of legislation that has had such strong support across groups across the country” “Parents want a tool kit to protect their children online,” Senator Blumenthal said during Wednesday’s hearing.

The bills now move to the Senate floor.

Concern about FTC authority under new COPPA

Under COPPA 2.0, the FTC authority includes determining what are “unfair or deceptive acts” in marketing practices and enforcing violations. In May, the agency put out a policy statement specifying its focus on enforcing the existing version of the bill.

Some senators voted against passing COPPA 2.0 over concern that it would give the Federal Trade Commission too much rule-making authority.

Senator Blackburn said there should be more restrictions on the ability of the FTC to make rules so there wouldn’t be overreach.

Similarly, Senator Mike Lee, R-UT, said he was not able to support the bill during markup because he is concerned about “giving a blanket ruling power to the FTC.

“We are at our best when we carefully consider legislation and don’t rush through it,” Lee said.

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Cybersecurity

Rep. Swalwell Says App Preference Bill Will Harm National Security

‘I just want to limit the ability for any bad actor to get into your device.’

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Photo of Representative Eric Swalwell, D-Calif.

July 27, 2022 – Antitrust legislation that would restrict the preferential treatment of certain apps on platforms would harm national security by making more visible apps from hostile nations, claimed Representative Eric Swalwell, D-Calif, at a Punchbowl News event Wednesday.

The American Innovation and Choice Online Act is currently under review by the Senate and, if passed, would prohibit certain online platforms from unfairly preferencing products, limiting another business’ ability to operate on a platform, or discriminating against competing products and services.

The legislation would ban Apple and Google from preferencing their own first-party apps on their app stores, which would make it easier for apps disseminated from hostile nations to be seen on the online stores, Swalwell said.

“[Russia and China] could flood the app store with apps that can vacuum up consumer data and send it back to China,” said Swalwell, adding that disinformation regarding American elections would spread. “Until these security concerns are addressed, we should really pump the breaks on this.”

Swalwell asked for a hearing conducted by Judiciary Committee of the House with the National Security Agency, Federal Bureau of Investigation, and Homeland Security officials to lay out what the bill would mean for national security.

“I just want to limit the ability for any bad actor to get into your device, whether you’re an individual or small business,” said Swalwell.

Lawmakers have become increasingly concerned about China’s access to American data through popular video-sharing apps, such as TikTok. Last month, Federal Communications Commissioner Brendan Carr called for Apple and Google to remove the app on the grounds that the app’s parent company, ByteDance, is “beholden” to the Communist government in China and required to comply with “surveillance demands.”

The comments follow debate surrounding the bill, which was introduced to the Senate on May 2 by Sen. Amy Klobuchar, D-Minn., on how it would affect small businesses and American competitiveness globally.

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