|Senate Commerce Republicans revise and release privacy bill that does not budge on main issues setting them apart from their Democratic colleagues.|
Last week, in advance of tomorrow’s hearing on privacy legislation, the chair and key Republicans released a revised version of draft legislation released last year to mark their position on what United States (U.S.) federal privacy regulation should be. Notably, last year’s draft and the updated version would still preempt state laws like the “California Consumer Privacy Act” (CCPA) (AB 375), and people in the U.S. would not be given the right to sue entities that violate the privacy law. These two issues continue to be the main battle lines between Democratic and Republican bills to establish a U.S. privacy law. Given the rapidly dwindling days left in the 116th Congress and the possibility of a Democratic White House and Senate next year, this may be both a last gasp effort to get a bill out of the Senate and to lay down a marker for next year.
The “Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act” (S.4626) was introduced by Senate Commerce, Science, and Transportation Committee Chair Roger Wicker (R-MS), Senate Majority Whip and Communications, Technology, Innovation, and the Internet Subcommittee Chair John Thune (R-SD), Transportation and Safety Subcommittee Chair Deb Fischer (R-NE), and Senator Marsha Blackburn (R-TN). However, a notable Republican stakeholder is not a cosponsor: Consumer Protection Subcommittee Chair Jerry Moran (R-KS) who introduced his own bill, the “Consumer Data Privacy and Security Act of 2020” (S.3456) (See here for analysis).
As mentioned, Wicker had put out for comment a discussion draft, the “Consumer Data Privacy Act of 2019” (CDPA) (See here for analysis) in November 2019 shortly after the Ranking Member on the committee, Senator Maria Cantwell (D-WA) and other Democrats had introduced their privacy bill, the “Consumer Online Privacy Rights Act“ (COPRA) (S.2968) (See here for more analysis). Here’s how I summarized the differences at the time: in the main, CDPA shares the same framework with COPRA with some key, significant differences, including:
- COPRA expands the FTC’s jurisdiction in policing privacy harms whereas CDPA would not
- COPRA places a duty of loyalty on covered entities to people whose covered data they process or transfer; CDPA does not have any such duty
- CDPA does not allow people to sue if covered entities violate the new federal privacy and security regime; COPRA would allow such suits to move forward
- CDPA preempts state privacy and data security laws; COPRA would establish a federal floor that states like California would be able to legislate on top of
- CDPA would take effect two years after enactment, and COPRA would take effect six months after enactment.
- The bar against a person waiving her privacy rights under COPRA is much broader than CDPA
- COPRA would empower the FTC to punish discriminatory data processing and transfers; CDPA would require the FTC to refer these offenses to the appropriate federal and state agencies
- CDPA revives a concept from the Obama Administration’s 2015 data privacy bill by allowing organizations and entities to create standards or codes of conduct and allowing those entities in compliance with these standards or codes to be deemed in compliance with CDPA subject to FTC oversight; COPRA does not have any such provision
- COPRA would require covered entities to conduct algorithmic decision-making impact assessments to determine if these processes are fair, accurate, and unbiased; no such requirement is found in CDPA
As a threshold matter, the SAFE DATA Act is in the latest in a line of enhanced notice and consent bills founded on the logic that if people were informed and able to make choices about how and when their data are used, then the U.S. would have an ideal data and privacy ecosystem. This view, perhaps coincidentally, dovetails with Republican views on other issues where people should merely be given information and the power to choose, and any bad outcomes being the responsibility of those who made poor choices. This view runs counter to those who see privacy and data security as being akin to environmental or pollution problems, that is being beyond the ability of any one person to manage or realistically change.
Turning to the bill before us, we see that while covered entities may not outright deny services and products to people if they choose to exercise the rights granted under the bill visa vis their covered data, a covered entity may charge different prices. This structure would predictably lead to only those who can afford it or are passionately committed to their privacy being able to pay for more privacy. And yet, the rights established by the bill for people to exercise some control over their private information cannot be waived, forestalling the possibility that some covered entities would make such a waiver a term of service like many companies do with a person’s right to sue.
Covered entities must publish privacy policies before or at the point of data collection, including:
- The identity of the entity in charge of processing and using the covered data
- The categories of covered data collected and the processing purposes of each category
- Whether transfers of covered data occur, the categories of those receiving such data, and the purposes for which transfers occur
- The entity’s data retention and data security policies generally; and
- How individuals may exercise their rights.
Any material changes mean new privacy policies provided to people and consent again must be obtained before collection and processing may resume.
Section 103 of the SAFE DATA Act establishes a U.S. resident’s rights to access, correct, delete, and port covered data. People would be able to access their covered data and correct “material” inaccuracies or incomplete information at least twice a year at no cost provided the covered entity can verify their identity. Included with the right to access would be provision of the categories of third parties to whom covered data has been transferred and a list of the categories of purposes. There is a long list of reasons why covered entities would not need to comply, including but not limited to:
- If the covered entity must “retain any covered data for the sole purpose of fulfilling the request; “
- If it would “be impossible or demonstrably impracticable to comply with;”
- If a request would “require the covered entity to combine, relink, or otherwise reidentify covered data that has been deidentified;”
- If it would “result in the release of trade secrets, or other proprietary or confidential data or business practices;”
- If it would “interfere with law enforcement, judicial proceedings, investigations, or reasonable efforts to guard against, detect, or investigate malicious or unlawful activity, or enforce contracts;”
- If it would “require disproportionate effort, taking into consideration available technology, or would not be reasonably feasible on technical grounds;”
- If it would “compromise the privacy, security, or other rights of the covered data of an- other individual;”
- If it would “be excessive or abusive to another individual; or
- If t would “violate Federal or State law or the rights and freedoms of another individual, including under the Constitution of the United States.”
This extensive list will give companies not interested in complying with plenty of reason to proffer as to why they will not provide access or correct. Nonetheless, the FTC would need to draft and implement regulations “establishing requirements for covered entities with respect to the verification of requests to exercise rights” to access and correct. Perhaps the agency will be able to address some foreseeable problems with the statute as written.
Explicit consent is needed before a covered entity may transfer or process the “sensitive covered data” of a person. The first gloss on this right is that a person’s consent is not needed to collect, process, and transfer the “covered data” of a person. Elsewhere in the section, it is clear that one has a limited opt out right: “a covered entity shall provide an individual with the ability to opt out of the collection, processing, or transfer of such individual’s covered data before such collection, processing, or transfer occurs.”
Nonetheless, a bit of a detour back into the definitions section of the bill is in order to understand which types of data lay on which side of the consent line. “Covered data” are “information that identifies or is linked or reasonably linkable to an individual or a device that is linked or reasonably linkable to an individual” except for publicly available data, employment data, aggregated data, and de-identified data. Parenthetically, I would note the latter two exceptions would seem to be incentives for companies to hold personal information in the aggregate or in a de-identified state as much as possible so as to avoid triggering the requirements of the SAFE DATA Act.
“Sensitive covered data” would be any of the following (and, my apologies, the list is long):
- A unique, government-issued identifier, such as a Social Security number, passport number, or driver’s license number, that is not required to be displayed to the public.
- Any covered data that describes or reveals the diagnosis or treatment of the past, present, or future physical health, mental health, or disability of an individual.
- A financial account number, debit card number, credit card number, or any required security or access code, password, or credentials allowing access to any such account.
Covered data that is biometric information.
- A persistent identifier.
- Precise geolocation information (defined elsewhere as anything within 1750 feet)
- The contents of an individual’s private communications, such as emails, texts, direct messages, or mail, or the identity of the parties subject to such communications, unless the covered entity is the intended recipient of the communication (meaning metadata is fair game; and this can be incredibly valuable. Just ask he National Security Agency)
- Account log-in credentials such as a user name or email address, in combination with a password or security question and answer that would permit access to an online account.
- Covered data revealing an individual’s racial or ethnic origin, or religion in a manner inconsistent with the individual’s reasonable expectation regarding the processing or transfer of such information. (of course, this sort of qualifying language always makes me think according to who’s definition of “reasonable expectation”)
- Covered data revealing the sexual orientation or sexual behavior of an individual in a manner inconsistent with the individual’s reasonable expectation regarding the processing or transfer of such information. (See the previous clause)
- Covered data about the online activities of an individual that addresses or reveals a category of covered data described in another subparagraph of this paragraph. (I suppose this is intended as a backstop against covered entities trying to backdoor their way into using sensitive covered data by claiming its covered data from online activities.)
- Covered data that is calendar information, address book information, phone or text logs, photos, or videos maintained for private use on an individual’s device.
- Any covered data collected or processed by a covered entity for the purpose of identifying covered data described in another paragraph of this paragraph. (again, this seems aimed at plugging a possible loophole in that ordinary covered data can probably be processed or combined with other covered data to arrive at some categories of “sensitive covered data.”)
- Any other category of covered data designated by the Commission pursuant to a rulemaking under section 553 of title 5, United States Code (meaning the FTC can use normal rulemaking authority and not the shackles of the Moss-Magnuson rulemaking procedures to expand this definition as needed).
So, we have a subset of covered data that would be subject to consent requirements, including notice with a “clear description of the processing purpose for which the sensitive covered data will be processed;” that “clearly identif[ies] any processing purpose that is necessary to fulfill a request made by the individual” that “include[s] a prominent heading that would enable a reasonable individual to easily identify the processing purpose for which consent is sought; and “clearly explain[s] the individual’s right to provide or withhold consent.”
Finally, the FTC may but does not have “to establish requirements for covered entities regarding clear and conspicuous procedures for allowing individuals to provide or withdraw affirmative express consent for the collection of sensitive covered data.” If the agency chooses to do so, it may use the normal notice and comment procedures virtually every other U.S. agency may.
Covered entities must minimize collection, processing, and retention of covered data to “what is reasonably necessary, proportionate, and limited” except if permitted elsewhere in the SAFE DATA Act or another federal statute. Interestingly, the FTC would not be tasked with conducting a rulemaking but would instead need to issue guidelines with best practices on how covered entities would undertake such minimization.
Service providers must follow the direction of the covered entity with whom they are working and delete or deidentify data after they have finished work upon it. Third parties are limited in processing covered data to only those purposes consistent with the reasonable expectations of the individual to whom the data belong. However, third parties do not need to obtain consent for processing sensitive covered data or covered data. However, covered entities must perform due diligence to ensure that service providers and third parties will comply with the requirements particular to these two classes of entities. However, there is no obligation beyond due diligence and no suggestion of liability for the misdeeds and violations of service providers and third parties.
Large data holders would need to conduct periodic privacy impact analyses with an eye toward helping these entities improve their privacy policies. This class of covered entities are those that have processed or transferred the covered data of 8 million or more people in a given year or the sensitive covered data of 300,000 people.
The SAFE DATA Act would generally allow covered entities to collect, process, and transfer the covered data of people without their consent so long as these activities are reasonably necessary, proportionate and limited to the following purposes:
- To initiate or complete a transaction or to fulfill an order or provide a service specifically requested by an individual, including associated routine administrative activities such as billing, shipping, financial reporting, and accounting.
- To perform internal system maintenance, diagnostics, product or service management, inventory management, and network management.
- To prevent, detect, or respond to a security incident or trespassing, provide a secure environment, or maintain the safety and security of a product, service, or individual.
- To protect against malicious, deceptive, fraudulent, or illegal activity.
- To comply with a legal obligation or the establishment, exercise, analysis, or defense of legal claims or rights, or as required or specifically authorized by law.
- To comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by an Executive agency.
- To cooperate with an Executive agency or a law enforcement official acting under the authority of an Executive or State agency concerning conduct or activity that the Executive agency or law enforcement official reasonably and in good faith believes may violate Federal, State, or local law, or pose a threat to public safety or national security.
- To address risks to the safety of an individual or group of individuals, or to ensure customer safety, including by authenticating individuals in order to provide access to large venues open to the public.
- To effectuate a product recall pursuant to Federal or State law.
People would not be able to opt out of collection, processing, and transferring covered data. As mentioned earlier, U.S. residents would receive a limited right to opt out, and it is in Section 108 that one learns the things a person cannot opt out of. I suppose it should go without saying that covered entities will interpret these terms as broadly as they can in order to forestall people from opting out. The performance of “internal system maintenance, diagnostics, product or service management, inventory management, and network management” seems like a potentially elastic definition that could be asserted to give cover to some covered entities.
Speaking of exceptions, small businesses would not need to heed the rights of individuals regarding their covered data, do not need to minimize their collection, processing, and transferring covered data, and will not need to have data privacy and security officers. These are defined as entities with gross annual revenues below $50 million per year, that has processed the covered data of less than 1 million people, has fewer than 500 employees, and earns less than 50% of its revenue from transferring covered data. On its face, this seems like a very generous definition of what shall be a small business.
The FTC would not be able to police processing and transferring of covered data that violates discrimination laws. Instead the agency would need to transfer these matters to agencies of jurisdiction. The FTC would be required to use its 6(b) authority to “examin[e] the use of algorithms to process covered data in a manner that may violate Federal anti-discrimination laws” and then publish a report in its findings and guidance on how covered entities can avoid violating discrimination laws.
Moreover, the National Institute of Standards and Technology (NIST) must “develop and publish a definition of ‘‘digital content forgery’’ and accompanying explanatory materials.” One year afterwards, the FTC must “publish a report regarding the impact of digital content forgeries on individuals and competition.”
Data brokers would need to register with the FTC, which would then publish a registry of data brokers on its website.
There would be additional duties placed on covered entities. For example, these entities must “establish, implement, and maintain reasonable administrative, technical, and physical data security policies and practices to protect against risks to the confidentiality, security, and integrity of covered data.” However, financial services companies subject to and in compliance with Gramm-Leach-Bliley regulations would be deemed to be in compliance with these data security obligations. The same would be true of entities subject to and in compliance with the “Health Insurance Portability and Accountability Act” and “Health Information Technology for Economic and Clinical Health Act.” Additionally, the FTC may “issue regulations to identify processes for receiving and assessing information regarding vulnerabilities to covered data that are reported to the covered entity.”
The SAFE DATA Act has language new to federal privacy bills on “opaque algorithms.” Specifically, covered internet platforms would not be able to use opaque algorithms unless notice is provided to users and an input-transparent algorithm version is available to users. The term ‘‘covered internet platform’’ is broad and encompasses “any public-facing website, internet application, or mobile application, including a social network site, video sharing service, search engine, or content aggregation service.” An “opaque algorithm” is “an algorithmic ranking system that determines the order or manner that information is furnished to a user on a covered internet platform based, in whole or part, on user-specific data that was not expressly provided by the user to the platform for such purpose.”
The bill makes it an unfair and deceptive practice for “large online operator[s]” “to design, modify, or manipulate a user interface with the purpose or substantial effect of obscuring, subverting, or impairing user autonomy, decision-making, or choice to obtain consent or user data.”
A covered entity must have
- 1 or more qualified employees or contractors as data privacy officers; and
- 1 or more qualified employees or contractors…as data security officers.
Moreover, “[a] covered entity shall maintain internal controls and reporting structures to ensure that appropriate senior management officials of the covered entity are involved in assessing risks and making decisions that implicate compliance with this Act.”
There are also provisions protecting whistleblowers inside covered entities that “voluntarily provide [“original information”] to the [FTC]…relating to non-compliance with, or any violation or alleged violation of, this Act or any regulation promulgated under this Act.”
Like virtually all the other bills, the FTC would be able to levy civil fines of more than $42,000 per violation, and state attorneys general would also be able to enforce the new privacy regime. However, the FTC would be able to intervene and take over the action if it chose, and if two or more state attorneys general are bringing cases regarding the same violations, then the cases would be consolidated and heard in the federal court in the District of Columbia. The FTC would also get jurisdiction over common carriers and non-profits for purposes of enforcing the SAFE DATA Act.
And then there is new language in the SAFE DATA Act that seems aimed at addressing a pair of cases before the Supreme Court on the extent of the FTC’s power to seek and obtain certain monetary damages and equitable relief. The FTC has appealed an adverse ruling from the U.S. Court of Appeals for the Seventh Circuit while the other case is coming from the U.S. Court of Appeals for the Ninth Circuit.
Like the forerunner bill released last November, the FTC would be empowered to “approve voluntary consensus standards or certification programs that covered entities may use to comply with 1 or more provisions in this Act.” These provisions came from an Obama Administration privacy bill allowing for the development and usage of voluntary consensus-based standards for covered entities to comply with in lieu of the provisions of that bill.
The SAFE DATA Act would not impinge existing federal privacy laws but would preempt all privacy laws at the state level. Ironically, the bill would not preempt data breach notification laws. One would think if uniformity across the U.S. were a driving motivation, doing so would be desirable.
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