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The Online Privacy Act was introduced
in the House of Representatives. If passed, it would establish
individual privacy rights related to personal information.
The Filter Bubble Transparency Act
was introduced in the Senate. If passed, greater transparency will
be required for platforms that collect data from more than one
million users and earn more than $50 million in revenue.
On Tuesday, November 5, Rep. Anna Eshoo (D-CA), a senior member
of the House Energy and Commerce Committee, and Rep. Zoe Lofgren
(D-CA), a senior member of the House Judiciary Committee,
introduced the Online Privacy Act (see section-by-section
summary here). The bill, previously unveiled as a
draft in June (see prior alert here), would establish individual rights
related to the privacy of personal information, as well as privacy
and security requirements, and establish a separate agency to
enforce these rights.
In addition, Sens. John Thune (R-SD), Richard Blumenthal (D-CT),
Jerry Moran (R-KS), Marsha Blackburn (R-TN) and Mark Warner (D-VA)
introduced the Filter Bubble Transparency Act on Friday,
November 1. The bill would establish greater transparency
requirements for platforms that collect data from more than one
million users and earn more than $50 million in revenue each
year.
Online Privacy Act
The proposal would notably not preempt state privacy laws and
includes the rights of access to user data, correction and
deletion. The right of portability, however, is limited to covered
entities that lack competition and have more than 10 million users,
increased from five million users in the initial draft. To the
extent feasible, the user has the right to opt out and the covered
entities must provide non-personalized version of services.
The bill would also create a new U.S. Digital Privacy Agency
(the “Agency”) modeled after the Consumer Financial
Protection Bureau. While the initial proposal authorized the Agency
for $200 million, the revised proposal authorizes the Agency for
$550 million. The Agency would be staffed with approximately 1,600
staff members.
In terms of enforcement, the measure would allow lawsuits to be
brought by the new Agency and state attorneys general. Non-profit
organizations active in protecting individual rights with regard to
personal data may take the place of an aggrieved individual, and
may also seek monetary damages. The bill would also allow
individuals to seek injunctive relief.
While the June draft carved out businesses with fewer than
500,000 users, the revised bill carves out only businesses with
fewer than 250,000 users. In addition, the preliminary draft
established the rights for consumers to opt out of data collection
used for personalized content. The revised draft requires covered
entities to obtain affirmative opt-in consent when collecting
personal information for the purpose of behavioral
personalization.
Regarding security requirements, the revised bill does not
contain the draft’s provision requiring entities who
experienced a breach to notify consumers of the event within 72
hours if the breach is likely to be followed by additional privacy
harms. The provision now requires entities to notify individual
consumers of a breach within 14 days if it creates or increases
foreseeable privacy harms.
Filter Bubble Transparency Act
The legislation would require large platforms to clearly inform
users of the use of computer-generated filters, or “secret
algorithms,” to determine how information is delivered. In
addition, the measure would provide users with the option of
navigating between a filter bubble-generated view of their
information and a non-filter bubble version.
Without providing users with the aforementioned options, large
platforms would be unable to utilize computer-generated filters to
determine how users receive information. Regarding enforcement, the
bill would authorize the Federal Trade Commission to seek civil
penalties for violations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The California Consumer Privacy Act (CCPA) goes into effect 1 January 2020. The Act, officially called AB-375, provides significant protections for consumer privacy in California.
With less than one month to go before the California Consumer Privacy Act of 2018's ("CCPA") effective date of January 1, 2020, businesses should be aware of the potential litigation that awaits them.
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