Today, Sen. Catherine Cortez Masto (D-NV) is introducing a data privacy bill that would explicitly bar platforms like Facebook and Google from serving targeted ads that discriminate against protected groups, particularly by race, sexual orientation or gender.
The DATA Privacy Act would empower the Federal Trade Commission to put in place specific definitions for what is considered discriminatory behavior in targeted ad and data practices. It would also extend the FTC’s civil penalty authority for violations of those rules, alongside broader protections on user data.
“The Senator is focused [on making sure] that as Congress tackles the issue of protecting Americans data privacy, our government is also guarding against potential forms of digital discrimination in areas ranging from housing and employment to lending and access to resources,” a spokesperson for Cortez Masto told The Verge.
In 2016, ProPublica found that Facebook was allowing advertisers to exclude users based on their race, raising concerns that ads could be targeted to violate laws against housing discrimination. Facebook responded by removing various targeting categories, but a year later, a subsequent ProPublica piece determined that discriminatory targeting was still possible on the platform. Lawmakers and civil rights advocates have long called for Facebook to end discriminatory targeting, and in 2018, states like Washington began to explicitly outlaw the practice.
Last April, Cortez Masto signed onto a letter with over a dozen other senators, including presidential hopefuls Sens. Kamala Harris (D-CA) and Cory Booker (D-NJ), urging on Mark Zuckerberg and Facebook to strengthen the platform’s policies to combat discrimination in ads for housing and jobs.
“The practice of discriminatory ad targeting is particularly nefarious because Facebook users cannot meaningfully control which ads they see; thus, discriminatory practices may go undetected,” the senators wrote. “Barring advertisers from tailoring their ads to discriminate against users on the basis of their protected characteristics is a necessary step,” the senators wrote.
Aside from the proposed ads rules, the Cortez Masto bill would require platforms to be more transparent in how they collect, process, and store user data. Any collection would only be warranted for what the bill calls “legitimate business or operational purpose” and would not subject a user to privacy risk. It would also prohibit platforms from deceiving users on how their data is used. Platform would also be required to allow users access to opt-out of the collection and storage of their data in most cases.
Industry groups are insistent that any federal privacy legislation should not harm small businesses or stifle innovation, and the Cortez Masto bill attempts to quell these concerns by omitting businesses that collect data on fewer than 3,000 people a year with revenues of less than $25 million per year from being subject to some of the bill’s more onerous requirements.
Data privacy has become an increasingly urgent topic in Congress, as members tackle difficult issues of consumer data control and federal preemption. The House and Senate held their first hearings on the issue this week, speaking with both industry and consumer experts on what exactly overarching consumer privacy legislation should look like. Generally, industry groups and Republicans have argued that any new federal law should preempt privacy laws in the states, in order to avoid overlapping standards. Senate Democrats have hotly criticized the idea of including a preemption clause, but their colleagues in the House have been less vocal.
Cortez Masto’s bill does not include a preemption clause.
“My legislation takes a proactive approach to protecting consumer data by ensuring Americans have a voice in how their consumer data is used,” Cortez Masto said. “I’m proud to introduce this legislation with my colleagues and will continue this fight to strengthen consumer privacy and data security.”