In the past, despite numerous bills being submitted to it, Congress has not had much of an appetite for enacting a federal data privacy and breach notification law, choosing instead to leave it to the States. In light of the recent Cambridge Analytica fiasco and the massive Equifax data breach, the time might now be ripe for concrete action by Congress. Indeed, immediately following the commencement of the Congressional Hearings in which Mark Zuckerberg was the main attraction, two Democratic Senators (Ed Markey from Massachusetts and Richard Blumenthal from Connecticut) proposed the Customer Online Notification for Stopping Edge-provider Network Transgressions (or, for short, the “CONSENT Act”), which would expand the authority of the Federal Trade Commission (“Commission”). In today’s digital parlance, an “edge provider” deals with internet content (whether as a provider, website, application, host, etc.) as opposed to an internet service provider. Edge providers include the Big Dogs of the internet: Google, Facebook, Amazon, etc.
Under the proposed CONSENT Act, the requirements placed on edge providers are very strict and comprehensive. Notably, an edge provider would be required to obtain opt-in consent (defined as “affirmative, express consent”) to “use, disclose, or permit access to the sensitive customer proprietary information of the customer” after appropriate notice (similar to GDPR requirements) by the edge provider to the customer. Unlike traditional PII (“personally identifying information”) definitions in the U.S. so far, the CONSENT Act would apply to: “(A) financial information; (B) health information; (C) information pertaining to children; (D) Social Security numbers; (E) precise geolocation information; (F) content of communications; (G) call detail information; (H) web browsing history, application usage history, and the functional equivalents of either; and (I) any other personally identifiable information that the Commission determines to be sensitive.”
In addition to the CONSENT Act, two other Senators (Republican John Neely Kennedy from Louisiana and Democrat Amy Klobuchar of Minnesota) have now introduced the bipartisan “Social Media Privacy Protection and Consumer Rights Act of 2018.” This proposed legislation, while not as robust as the CONSENT Act, would at least give consumers greater access to and control over their data, including opt-out provisions, “plain language” requirement for terms of service, and the right to breach notification within 72 hours (plus specified remedies for such breaches). Their proposal also includes a requirement that companies with online platforms implement, maintain, and publish a privacy or security program. Further, like the CONSENT Act, enforcement of this proposed legislation would fall to the Commission. As Senator Klobuchar stated, “The digital space can’t keep operating like the Wild Wild West at the expense of our privacy.” So, stay tuned to see if, finally, that “digital space” will be reined in.