Information Technology & Innovation Foundation Report Calls for National Data Privacy Law

A new report by the Information Technology & Innovation Foundation calls for a new privacy framework that expands and simplifies consumer data privacy rights, reduces compliance costs from existing state and federal regulations, and paves the way for more data-driven innovation. Specifically, the report calls for comprehensive data privacy legislation to repeal and replace existing federal privacy laws with a common set of protections, preempt state laws, improve transparency requirements, strengthen enforcement, and establish a clear set of data privacy rights for Americans based on the sensitivity of the data and the context in which it is collected. 

The report focuses on potential federal data privacy legislation for private-sector data processing.  It does not address government access to data or restrictions on government use of data.  It proposes a grand bargain, in which Congress repeals existing federal data privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and Gramm-Leach-Bliley Act (GLBA), and replaces them with a single federal data privacy law that preempts state laws.  The new federal law would establish a common set of federal protections for all types of data based on the sensitivity of the data and the context in which it is collected.  The report also proposes to improve consumer protections by enhancing transparency requirements for business practices, and, establishing a set of clear basic rights for Americans. The report also proposes improving enforcement by granting regulators the appropriate authority to update and enforce rules while ensuring they have the proper constraints to protect industry from regulatory overreach and overzealous enforcement.  The report also addresses how a data privacy law could facilitate data sharing abroad without simply acceding to demands from other countries or regions on how to protect data.   Finally, it offers recommendations for how federal data privacy legislation can promote innovation and beneficial data collection, use, and sharing to ensure consumers continue to benefit from the growing digital economy, including services supported by targeted digital advertising.

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The Regulatory Mix Today:  Information Technology & Innovation Foundation Report Calls For National Data Privacy Law, Court Rules Law Enforcement Can’t Require Unblocking Via Biometrics

Court Rules Law Enforcement Can’t Require Unblocking Via Biometrics

A California District Court has denied a request from the Government seeking authority to compel any individual present at the time of the search to press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purposes of unlocking the digital devices found in order to permit a search of the contents as authorized by the search warrant.  The Court found that the Government's request runs afoul of the Fourth and Fifth Amendments.  The Court said that “[e]ven if probable cause exists to seize devices located during a lawful search based on a reasonable belief that they belong to a suspect, probable cause does not permit the Government to compel a suspect to waive rights otherwise afforded by the Constitution, including the Fifth Amendment right against self-incrimination.”  The Court noted that prior court rulings make it clear that a citizen cannot be compelled to use his or her passcode to unlock a phone because the act of communicating the passcode is testimonial.  Here, the court decided biometric features serve the same purpose of a passcode, which is to secure the owner's content, pragmatically rendering them functionally equivalent.

The Court also found that requiring someone to affix their finger or thumb to a digital device is fundamentally different than requiring a suspect to submit to fingerprinting.  A finger or thumb scan used to unlock a device indicates that the device belongs to a particular individual. In other  words, the act concedes that the phone was in the possession and control of the suspect, and  authenticates ownership or access to the phone and all of its digital contents.

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The Regulatory Mix, Inteserra’s blog of telecom related regulatory activities, is a snapshot of PUC, FCC, legislative, and occasionally court issues that our regulatory monitoring team uncovers each day. Depending on their significance, some items may be the subject of an Inteserra Briefing.

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