A DC Perspective – Thoughts on Federal Privacy Legislation, the Dobbs Decision, FTC Rulemaking, and More

The attention of policy makers. It’s a politician’s dream. It’s a politician’s nightmare.

The attention and relevance of national discourse can take a focused beam of political ideas and push it through political prisms, fracturing the conversation into disconnected sound bites. For example, what is a “strong” privacy law? Are these substantive provisions that guide organizations towards better data protection practices? Is it a broad field of application? Are they strong accountability and enforcement mechanisms? Is it compatible with other frameworks? All the foregoing?

There’s plenty of room to debate the merits of US privacy and data protection law and other currently proposed federal privacy bills. This week, The Washington Post reported on reactions and reactions to reactions from congressional, civil society and industry leaders to the current bill and other bills in circulation (including, apparently, a updated draft of Sen. Maria Cantwell, D-Wash., Consumer Privacy Rights Bill).

As Cameron Kerry, Tisch Distinguished Visiting Scholar, Center for Technology Innovation Governance Studies, wrote last week for the Brookings TechTank blog, substantial and remarkable progress has been made in solving these “endgame problems.” requiring a political compromise. In her insightful article, Kerry outlines a “tighter” path to full agreement, as well as key remaining questions regarding: (1) limits on the collection, use, and transfer of personal information, (2) the duty of loyalty, (3) confidentiality right of action (especially disagreement over arbitration), and (4) covered entities.

Increases in the House and Senate are expected in July. Whether these important next steps can build on the fragile consensus, without being sidetracked by shifting attentions, will have a decisive impact on the outcome later this year.

Here’s what else I got:

  • The publication of the final Dobbs decision, the removal of national protections for access to safe abortions, has prompted a flurry of thoughtful commentary on its impact on fundamental understandings of privacy and autonomy in the United States
    • Writing in Slate, Professor Danielle Citron called for a new civil right to privacy, explaining why legislative reforms are needed: “There is already a premium on everyone’s privacy.
    • The New Yorker published a revealing commentary on trends in the tracking and criminalization of pregnancy, facilitated by the collection and dissemination of personal data.
    • Cyberlaw Clinic’s Kendra Albert has written a nuanced explanation of the types of data most likely to be used by those seeking to pursue abortions — and why period-tracking apps aren’t the problem. Instead, Albert concludes that “the main digital threat to people who take abortion pills is the actual evidence of intent stored on your phone, in the form of text messages, emails and search history. /Web”.
  • The US Department of Health and Human Services has issued guidelines on the Health Insurance Portability and Accountability Act Confidentiality Rule and the Disclosure of Reproductive Health Care Information. Among other details, the guidelines state, “Where state law does not expressly require such reporting, the confidentiality rule would not permit disclosure to law enforcement under the authorization” required by law. law”.
  • The Federal Trade Commission should not wait for Congress to regulate privacy. So writes Mark MacCarthy for the Brookings TechTank blog: “The agency shouldn’t wait to see what Congress does. Even with the simplified procedures of Article 18, it will be difficult for the agency to complete the development of substantively and procedurally defensible confidentiality rules before the end of this administration. Additionally, the reality of FTC privacy regulation could encourage some lawmakers to accept a legislative compromise rather than leave policy decisions to the agency, making a new national privacy law more likely.

Under surveillance

  • Expanded Keyword Warrants for Law Enforcement are challenged in an amicus brief filed by the Fourth Amendment Center of the National Association of Criminal Defense Lawyers and signed by the Electronic Frontier Foundation. As Forbes reports, “Unlike most search warrants, keyword searches do not target a specific person or property. Instead, they could potentially hand over law enforcement data on tens, hundreds, or even thousands of people unrelated to the case at hand.
  • The AI ​​hype does not correspond to reality and must be reset according to a report by the Wall Street Journal.
  • Automated calls are the subject of a comprehensive report by EPIC and the National Consumer Law Center, with recommendations for regulatory solutions that can curb the problem.

Please send your comments, updates and political dreams to [email protected]

About Michael S. Montanez

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