On April 24, 2018, Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) introduced the Social Media Privacy and Consumer Rights Act of 2018.  The bill aims to protect consumers’ online data by increasing the transparency of data collection and tracking practices, and requiring companies to notify consumers of a privacy violation within 72 hours.

“Our bill gives consumers more control over their private data, requires user agreements to be written in plain English and requires companies to notify users of privacy violations,” Senator Kennedy explained. “These are just simple steps that online platforms should have implemented in the first place.”

Other features of the legislation include providing consumers a right of access to see what information about them has been collected and used, allowing consumers to opt out of data collection and tracking, and requiring online platforms to have a privacy program in place.  Senator Klobuchar explained that “[c]onsumers should have the right to control their personal data and that means allowing them to opt out of having their data collected and tracked and alerting them within 72 hours when a privacy violation occurs and their personal information may be compromised.” 
Continue Reading Senators Klobuchar and Kennedy Introduce Privacy Legislation

By Alyson Sandler

On April 10, Senators Richard Blumenthal (D-CT) and Ed Markey (D-MA) introduced new privacy legislation titled the Customer Online Notification for Stopping Edge-provider Network Transgressions (CONSENT) Act.  In a statement published on his website, Senator Markey referred to the legislation as a “privacy bill of rights” and explained that “[t]he avalanche of privacy violations by Facebook and other online companies has reached a critical threshold, and we need legislation that makes consent the law of the land.”

The CONSENT Act directs the Federal Trade Commission (FTC) to “establish privacy protections for customers of online edge providers.”  These protections include requiring edge providers to notify customers about the collection and use of “sensitive customer proprietary information,” which the Act defines to include, among other things, financial and health information, the content of communications, and web browsing and application usage history.  Customers must also be notified about the types of sensitive customer proprietary information that the edge provider collects, how the information will be used and shared, and the types of entities the edge provider will share the information with.

The centerpiece of the CONSENT Act is its “opt-in” requirement for edge providers to obtain consent from customers for the use of “sensitive information.”  This differs from the model currently employed by most online companies, under which customers may opt out of data collection.  The Act also prohibits an edge provider from refusing to serve customers who do not consent to the use and sharing of their sensitive proprietary information for commercial purposes.
Continue Reading Senate Democrats Propose CONSENT Act

Representative Marsha Blackburn (R-TN) has introduced a bill, the “Balancing the Rights of Web Surfers Equally and Responsibly Act of 2017” (“BROWSER Act,” H.R. 2520) that would  create new online privacy requirements.  The BROWSER Act would require both ISPs and edge providers (essentially any service provided over the Internet) to provide users with notice of their privacy policies, obtain opt-in consent for sensitive data, and opt-out consent for non-sensitive data.  In its current form, the BROWSER Act would define sensitive data more broadly than in existing FTC guidelines—mirroring the since-repealed privacy rules that the FCC adopted last year for ISPs, but applying those standards to ISPs and edge providers alike.

The BROWSER Act defines “sensitive user information” to include financial information, health information, children’s data, social security numbers, precise geo-location information, contents of communications, and, most notably, web browsing or app usage histories.  ISPs and edge providers must obtain “opt-in approval” from users prior to using, disclosing, or permitting access to such sensitive information.  For “non-sensitive user information,” the BROWSER Act requires opt-out consent.  And companies may not condition the provision of services, or otherwise refuse services, based on the waiver of privacy rights under the BROWSER Act.
Continue Reading New Republican Privacy Bill Would Expand Scope of “Sensitive” Data

This week, the Senate Judiciary Subcommittee on Privacy, Technology and the Law held a hearing to discuss the Location Privacy Protection Act of 2014, a bill reintroduced in March by Senator Al Franken (D-MN).  Most concerned with the potential for misuse and abuse of location data for purposes of stalking and perpetrating domestic violence, Senator Franken, who chairs the Subcommittee on Privacy, made clear at the hearing his view that, “Stalking apps must be shut down.”  Franken clarified, however, that his bill is not only intended to protect victims of stalking, but provides basic privacy safeguards for sensitive location information pertaining to all consumers.  Most critically, Senator Franken suggested that because location data lacks sufficient legislative protection, some of the most popular apps used widely by average consumers have been found to disclose users’ precise location to third parties without obtaining user permission.  Further, he noted that in light of stalking apps that are deceptively labeled as something else, such as “parental monitoring,” it is necessary to create a law with basic rules for any service that collects location information.

The witnesses representing law enforcement, federal agencies, and consumer-advocacy and anti-domestic violence groups gave testimony sharing Senator Franken’s concerns, and also suggested that industry self-regulation in this area so far has not been consistent or transparent.  Jessica Rich, Director of the Federal Trade Commission’s Bureau of Consumer Protection, for example, noted that broadly speaking, while many industry groups and individual companies purport to adopt the opt-in model as a best practice, enforcement has shown that the standard is in fact not complied with on a regular basis. 

In response, witnesses representing industry largely rejected the notion that legislation like Senator Franken’s is needed at this time.  Expressing particular worry that laws and regulations are inflexible and can quickly become outdated in the face of rapidly evolving technologies, Lou Mastria, Executive Director of the Digital Advertising Association (“DAA”), testified that innovation is better served by self-regulation, which can adapt to new business models because it is more “nimble” than government regulation, as subcommittee ranking member Senator Jeff Flake (R-AZ) phrased it.  Mr. Mastria pointed to the DAA’s Self-Regulatory Principles as an effective framework for self-regulation.  Sally Greenberg, Executive Director of the National Consumers League, however, contested the usefulness of DAA’s code, calling it weak, “full of holes,” and “late to the game,” especially in the face of her view that there is “monumental evidence that self-regulation is not working.”


Continue Reading Senate Subcommittee Examines “Stalking Apps” Bill

Following a public comment period that began in March of this year, the Federal Trade Commission has accepted as final a settlement with Google relating to the social network “Buzz” product that was launched in 2010.  (For more details about the Buzz product and its launch see Inside Privacy’s prior post, here).  As the Commission’s press release states, “The settlement resolves charges that Google used deceptive tactics and violated its own privacy promises to consumers when it launched its social network, Google Buzz . . . .”

The Commission voted 4-0  to approve the settlement, which imposes numerous requirements on Google, including:


Continue Reading Google Buzz FTC Settlement Accepted