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How Congress could rein in Google and Facebook

Lawmakers are getting ready to take on data privacy, but the details of the bill are still up for grabs

Illustrations by Alex Castro

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In April, Mark Zuckerberg was called before the Senate Commerce and Judiciary committees to take responsibility for Cambridge Analytica. It was a brutal hearing, and lawmakers seemed ready for new regulation.

“This should be a wake-up call for the tech community,” Sen. John Thune (R-SD), chairman of the influential Commerce Committee said at the hearing.

The Democrats weren’t gentle either. “If Facebook and other online companies will not or cannot fix the privacy invasions,” Sen. Bill Nelson (D-FL), the committee’s ranking member said, “then we are going to have to. We the Congress.”

Six months and several hearings later, Congress is still figuring out exactly what fixing privacy might mean. After ambitious new data-sharing regulations like the European Union’s General Data Protection Regulation (GDPR), Congress is planning its own data privacy law, and how it’s written will matter immensely for companies like Google and Facebook.

“The question is what shape that law should take.”

Industry leaders and consumer advocates are already locking horns over the provisions of the bill, like whether it will prohibit states from enacting their own tougher privacy rules or exactly how it will define personal information. This fight will determine how the US government will be able to restrain predatory privacy practices for the foreseeable future.

“These developments have all combined to put the issue of consumer data privacy squarely on Congress’ doorstep,” Thune said ahead of a commerce hearing last month. “The question is no longer whether we need a federal law to protect consumers’ privacy. The question is what shape that law should take.”

How much control do consumers have over their data?

One of the most noticeable differences between the pre- and post-GDPR internet is the number of times users are asked to consent to data collection. Under the GDPR, users must give some form of explicit consent before companies can scrape them for data. They also must be provided with a method of revoking that consent at any time as well. Whatever the details, some version of those transparency and control requirements will be at the heart of any legislation.

Some of the most prominent “opt-in” bills were put forth in the aftermath of the Cambridge Analytica scandal, seeing it as a failure of user consent. A number of bills attempt to reckon with this flaw by requiring users to opt in to the collection or at least be notified of where their data is headed and for what purpose. Both Rep. Blackburn’s (R-TN) BROWSER Act, and Sen. Ed Markey’s (D-MA) CONSENT Act would require edge providers to ask users to opt in before any sensitive data is collected. It’s different from the current model, where companies like Google provide opt-out models somewhere in a profile’s settings options.

Establishing the FTC as a powerful new federal privacy enforcer

But even if these bills are enacted into law, they may not penalize other Cambridge Analytica-like events. Both of these bills only cover sensitive information like Social Security numbers, biometric data, and precise geolocation data. Cambridge Analytica dealt in data points that aren’t typically considered “sensitive,” like interests and location check-ins.

When it comes to notifying users following a breach, Sens. Amy Klobuchar (D-MN) and John Kennedy’s (R-LA) Social Media Privacy and Consumer Rights Act would enforce a 72-hour window for disclosure that is identical to the one implemented by the GDPR. The Markey bill would direct the Federal Trade Commission to develop breach disclosure requirements for situations in which “harm is reasonably likely to occur.” So far, the FTC hasn’t had much authority when it comes to holding tech companies accountable for privacy violations. Some of these bills would instill the agency with rule-making authority like the FCC’s telecom authority, effectively establishing the FTC as a powerful new federal privacy enforcer.

Other methods outside of congressional action when it comes to user control have been proposed as well. Over the summer, Sen. Mark Warner (D-VA) put out a white paper listing several suggestions for regulating tech, including one that would consider platforms as “information fiduciaries.” Basically, this would reclassify providers as bodies similar to those belonging to medicine, law, and finance, requiring social media platforms like Facebook to not act against the interests of its users. This rule could be officiated by several government agencies, moving faster than any bill through Congress. If approved, it would hold these companies up to a higher standard than ever before.

What counts as sensitive data?

Historically, personal details like what was easily found in a phonebook weren’t considered equally as damaging when compared to more “sensitive” pieces of data like credit card information and Social Security numbers. Over the past decade or so, this discussion has evolved, however. A leak of your legal name attached to an anonymous username for Reddit or OkCupid could spell reputational and emotional harm, even if it doesn’t technically count as a breach. Those more strict rules are something staunch consumer advocates believe is worth fighting for including in legislation.

“There’s emotional harm from having information stolen”

Through measures like the California Consumer Privacy Act, consumers have more agency over that data. But at the very core of any piece of legislation is just how it will define “personal” or “sensitive” information. If these more basic pieces of information are not included in that definition, many companies could skate by without consequence if usernames, emails, or addresses were to be breached.

“We’ve recognized in the last several years, that individuals have a broader privacy concern in more information than just things that could be used to steal their identities,” said Laura Moy, executive director of Georgetown Law’s Center on Privacy & Technology. “[There’s] emotional harm from having information stolen, even if it’s not information about their finances.”

Several bills from this term wrestle with this definition, too, listing what types of information should be covered when regulating certain arms of the privacy debate and leaving out those forms of data that shouldn’t.

The Kennedy-Klobuchar bill would cover more stereotypically personal information like a user’s email and phone number on top of that more sensitive information. Both ITI and the Internet Association have laid out frameworks that would extend greater controls to users over their own data, ensuring that they could them to correct and delete the information that is collected. But in proposals like ITI’s, users would only have to explicitly consent to the collection of sensitive information, not the collection of more personal pieces like phone numbers.

The Blackburn and Markey bills are more limited, targeting information we have generally considered “sensitive.” Klobuchar’s includes that information, but it extends it further to cover more personal details like emails, phone numbers, and “any location information sufficient to identify the name of a street and a city or town, including a physical address,” too. If these were carried over as guidance for sweeping federal regulations, a broader definition like the one proposed by Klobuchar would greatly impact what kind of data that, when breached, would result in harsher penalties for companies.

Earlier this month, Facebook announced that 30 million accounts were compromised after login credentials were obtained by hackers through a security vulnerability. According to Facebook, the hackers were only able to obtain some basic security information like users’ names, emails, and phone numbers. If the Klobuchar bill were to be passed, Facebook would have been required by law to disclose the breach of these more personal details to its users.

A weak federal law could block stronger state laws

As Congress stalls out, some of the strongest privacy protections have come from state-level bills like the California Consumer Privacy Act (CCPA). Under that law, companies are required to give users the option to opt out of the sale and collection of their data. If a company were to continue doing so, the consumer could sue them. But industry leaders are now pushing for a preemption clause in the federal bill that would override the CCPA and prohibit any future state bills like it from being passed. If the clause is included, even a relatively strong federal bill could mean a step back in privacy protections for states like California.

Expect more hearings, letters of inquiry, and calls for federal investigations

Industry leaders say setting a single federal standard will make it easier for businesses to comply with the new rules. But for privacy groups, it’s just a way to lobby against strong protections from states. “It has often been state legislatures — not Congress — that have led efforts to protect consumer privacy,” American Civil Liberties Union senior legislative counsel Neema Singh Guliani said in an op-ed last month. “The private sector knows this, and many companies are looking to put a stop to it.”

All 50 states had data breach legislation and those stronger rules in some states made it compelling enough for Equifax to apply them nationally following the credit-monitoring company’s massive breach last year.

“If federal standards are strong and adapt to new threats, states may see no need to pass their own laws to supplement these standards. But preserving their ability to act if this is not the case can be good for the public,” Guliani said.

This is just the beginning

There’s no telling when Congress will move on these proposals — it may not be soon — but the discussions, hearings, and proposed legislation do indicate that lawmakers are questioning what could and should be done to rope in these tech giants.

For the next few months, expect more hearings, letters of inquiry, and calls for federal investigations, but don’t expect any real, dramatic changes to how companies like Facebook and Google collect and disseminate your data. The Commerce Department has yet to propose its framework, but once announced, it has the potential to shake up the debate even more.

Much of the conversation so far has simply been lawmakers marking their territory for future debates. When the next Congress comes into session, this discussion will come to a head, and Congress will have to decide how to reckon with the new power of platforms like Facebook.