GOVERNMENT SPECIAL REPORT
On July 20 the House Energy and Commerce Committee approved the American Data Privacy and Protection Act by an overwhelming 52-3 vote. As passed the measure was more restrictive than earlier versions and would eliminate most interest-based advertising by prohibiting companies from collecting or processing data about web user’s online activity across sites and over time for ad purposes. Fortunately, many members who voted have expressed concerns with some provisions of the bill and indicated their votes in favor were in the interest of continuing dialogue on the issue.
The AAF supports the enactment of a comprehensive national privacy law that works for consumers and businesses alike. We believe that the responsible use of data to deliver interest-based advertising is not just good for businesses, but for consumers and the economy also. We have been actively engaged with lawmakers and have offered both our concerns and suggestions.
Because of the upcoming election, and the few remaining legislative days, it appears unlikely, but not impossible, that the bill will be considered by the full House of Representatives and the Senate.
On August 11, the Federal Trade Commission published an Advance Notice of Proposed Rulemaking seeking public comment on topics related to “commercial surveillance and data security.” The notice is just the first step in what is usually a very long and involved process. At a news conference announcing the ANPR, FTC Chair Lena Khan expressed concerns that current data practices may harm consumers but did not address the benefits of responsible data use.
The FTC officials acknowledged that Congress has stronger and quicker tools to establish privacy protections and that if a law is passed, any subsequent FTC action would follow congressional directive. As stated above, AAF supports congressional action and the enactment of a comprehensive privacy law that works for both consumers and businesses.
The AAF supported Privacy for America questioned whether the agency has the authority to adopt rules given the Supreme Court’s recent decision in West Virginia v. EPA. The Court ruled that agencies lack the authority to issue regulations on “major questions” unless explicitly directed to do so by Congress. The role of data, which has driven innovation, growth, and competition in the American economy would certainly appear to trigger the major questions doctrine.
The FTC will conduct a September 8 online public forum to hear public and industry feedback on the ANPR. AAF has requested the opportunity to speak and anticipates responding to the Commissions call for more detailed comments. We will continue to engage with lawmakers in support of a national privacy law.
For more information on the AAF and the Advertising Industry Coalition's response to privacy issues, view our Legislative Comments & Testimony.