Explosion of Reactive Privacy Initiatives in the States

May 16, 2017

President Trump recently signed a joint congressional resolution invalidating the Federal Communications Commission’s sweeping broadband privacy rules, a move that ANA strongly supported. Those rules would have required opt-in consent for collection of virtually all ISP broadband and app use history. The FCC’s action would have required that vast amounts of innocuous data be treated as highly sensitive, a radical change in privacy enforcement in the United States.

Unfortunately, since the Congress voted to invalidate the FCC’s broadband privacy rules, numerous states across the country have swooped in to attempt to reinstate these rules on a state-by-state basis. ANA and our industry partners have been active in opposing these efforts to impose these overly restrictive laws. This overreaction to the repeal of the FCC’s rules has been fueled by highly misleading claims that FCC Chair Ajit Pai and FTC Acting Chair Maureen Ohlhausen sought to refute in a carefully and thoughtfully argued Washington Post Op-ed.

Despite claims to the contrary, repeal of these rules does not stop the Federal Trade Commission from continuing policing privacy protections and bringing enforcement against all other companies that abuse consumer privacy. The FCC also still will be able to regulate ISPs. Meanwhile, the private sector – including ANA and a broad range of groups in the ad community – will continue to be  very active in advancing consumer privacy issues through the Digital Advertising Alliance (DAA), which gives consumers the ability to control their advertising privacy preferences and learn about data collection and uses.  

These efforts will protect consumers and businesses, making state action in this area unnecessary. Furthermore, nearly every state has developed proposed privacy language different from that being offered in other states – creating the threat of a vast, inconsistent patchwork of state laws that would result in massive difficulties for internet operability and making advertising across the country virtually impossible. Due to these problems, ANA already has signed on to industry group letters opposing bills in Alaska, Connecticut, New Hampshire, Massachusetts, Minnesota, Oregon, Rhode Island, and Vermont.

Advertisers are also facing different threats from privacy bills in Illinois and California. In Illinois, House and Senate versions of a so-called “Right to Know” bill (HB 2774 / SB 1502) are moving quickly through the legislature. This legislation would require companies to set up a system to provide customers with a record of all of the personally identifiable data held by the companies. Businesses large and small would be forced to hire a team of lawyers to comply with this law (a highly costly burden) without any meaningful protection being provided for consumers. These types of laws also inevitably create serious data security risks as collecting and collating broad information on individuals increase privacy dangers in case of a data breach.

Finally, in California we recently voiced our opposition to SB 327, which focuses on information privacy for Internet of Things (IoT) devices such as connected toys. In addition to imposing onerous, unnecessary standards across-the-board, the bill’s provisions would be preempted in applicable cases by the federal Children’s Online Privacy Protection Act (COPPA), which gives parents control over what information can be collected from their children.

ANA believes that these and other similar state bills must be stopped in order to ensure data privacy is regulated in a consistent way that strikes a reasonable balance between adequately protecting consumers and not imposing overly restrictive and expensive mandates on businesses. Onerous and restrictive privacy rules will hurt business, increase costs, and not help consumers. We believe that DAA and other privacy self-regulatory efforts backed by federal enforcement provides this balance. We will continue to fight these types of misguided legislative proposals so that the rights of marketers and consumers can be appropriately protected.

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