By

Christopher Fonzone

18 March 2019

The New Congress Turns to an Old Issue – The Possibility of Comprehensive Federal Privacy Legislation

Even a few short years ago, it seemed unlikely that Congress would enact comprehensive privacy legislation. But a series of high profile data breaches; increasing concerns about data practices, particularly when connected to political micro-targeting; fears about the rise of autonomous, and potentially invisible, decision-making; and the passage of far-reaching foreign and now State privacy laws have all changed the zeitgeist. Congress has taken notice, and, for the past year, Data Matters has been closely following the Legislative Branch’s moves as it a federal privacy bill looks more likely than it has in a generation. (more…)

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12 March 2019

FTC Seeks Comment on Proposed Changes to its GLBA Safeguards and Privacy Rules

Over the last few years, States have enacted increasingly aggressive legislation concerning data privacy and security, raising concerns that companies will be subject to a patchwork of different standards.  Congress has recently taken notice, convening hearings on potential federal privacy legislation, with the possibility of preemption a hot topic during the hearings.  Last week, the Federal Trade Commission (“FTC”) got into the act as well, releasing two notices of proposed rulemaking (“NPRM”) on potential changes to its the Standards for Safeguarding Customer Information (“Safeguards Rule”) and Privacy of Consumer Financial Information Rule (“Privacy Rule”) under the Gramm-Leach-Bliley Act.  The proposed amendments – and particularly the proposed changes to the Safeguard Rule – signal the FTC’s desire to align its rules with those of key states and to further protect customer information held by financial institutions.

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12 February 2019

Takeaways From CCPA Public Forums

When California Governor Jerry Brown signed the California Consumer Privacy Act (CCPA) into law on June 28, 2018, there was broad agreement that revisions and clarifications were necessary.  The CCPA was written and enacted with extraordinary speed, as legislators felt the need to move quickly in order to preempt a data privacy ballot initiative that had received enough signatures to be placed on California’s November ballot.  Consequently, June 28 was, in many ways, the beginning of a debate over the specifics of the CCPA, rather than the end.  Indeed, the California legislature has already passed a “clean-up” bill to address concerns expressed about the CCPA, and heated debates over the meaning and merits of specific provisions continue.  (more…)

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05 November 2018

U.S. Department of Transportation Issues Third Round of Guidance on Automated Vehicles

Rapid advances in automation have the potential to disrupt a number of sectors, perhaps none more so than the automobile industry. The U.S. Department of Transportation (DOT) has accordingly announced its intention to take “active steps to prepare for the future by engaging with new technologies to ensure safety without hampering innovation.” Most recently, on October 4, 2018, DOT issued Preparing for the Future of Transportation: Automated Vehicles 3.0 (AV 3.0), its third round of guidance on the topic. Like its 2017 predecessor, “Automated Driving Systems 2.0: A Vision for Safety,” AV 3.0 emphasizes the development of voluntary, consensus-based technical standards and approaches while noting that there are cross-cutting policy issues where federal leadership may be necessary. AV 3.0 also builds on its predecessors by emphasizing that it reflects the view of all of DOT’s operating administrations; by providing much more detailed guidance on the development and testing of automated vehicle technologies; and by announcing some specific regulatory steps DOT plans to take in the near future. (more…)

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29 October 2018

FERC Approves NERC’s Supply Chain Risk Management Reliability Standards and Directs NERC to Expand Their Scope

A string of Governmental announcements have increasingly sounded the alarm about the growing cybersecurity threat facing the energy sector.  Among other things, these reports have announced that state-sponsored cyber actors have successfully gained access to the control rooms of utilities.  The hackers, one of the reports notes, could have used such access to cause blackouts.

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10 October 2018

California and Preemption

As one of the epicenters of the Information Age and largest state in the Nation, California’s regulatory decisions can have an outsize impact on the data economy.  Recently, the State has tried to use this pride of place to stamp its imprint on two important public debates.  First, on September 30, 2018, Governor Brown signed into law the California Internet Consumer Protection and Net Neutrality Act of 2018 (Senate Bill 822), which seeks to impose, as a matter of state law, net neutrality regulation even more restrictive than the federal regime the Federal Communications Commission (FCC) repealed earlier this year.  Second, earlier this year, California enacted (and then subsequently amended) the California Consumer Privacy of 2018, the broadest privacy law in the United States.  As laid out below, these enactments have sparked legal and policy debates over whether California should be able to set rules that could become de facto national standards or whether federal rules do or should preempt California’s efforts.  (more…)

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05 October 2018

White House and Pentagon Announce New Cyber Strategies

The Trump Administration continued to put its stamp on federal cybersecurity policy last week, as the White House issued its National Cyber Strategy while the Pentagon announced the Department of Defense Cyber Strategy.  The former document is a helpful step forward that continues and advances the cyber policies the Trump Administration inherited from the Obama and Bush Administrations, while the Pentagon’s release primarily focused on the Strategy’s endorsement of “Defense Forward,” which was taken as a signal the United States would be adopting a more aggressive operational posture in the future.  Data Matters readers will want to study both strategies, as each contains interesting insights into how the Trump Administration envisions the development of the cybersecurity ecosystem and see the public and private sectors working together to mitigate cyber risks.  (more…)

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02 October 2018

The Trump Administration’s Approach to Data Privacy, and Next Steps

* This article originally appeared in Law360 on September 27, 2018.

On Sept. 25, 2018, the Trump administration proposed an approach and initiated a process to modernize U.S. data privacy policy.  The administration’s approach is “risk-based” rather than rule-based, and, as such, signals a willingness to move away from a privacy model of mandated notice and choice that has “resulted primarily in long, legal, regulator-focused privacy policies and check boxes.” Rather, the administration is proposing that U.S. privacy policy “refocus” on achieving desirable privacy “outcomes,” such as ensuring that users are “reasonably informed” and can “meaningfully express” their privacy preferences, while providing organizations with the flexibility to continuing innovating with cutting-edge business models and technologies.

(more…)

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28 September 2018

Senate Hearing on Federal Privacy Law: Question is Not Whether But What Form

On September 26, the Senate Commerce Committee invited tech and telecom companies to the Hill to discuss safeguards for consumer data privacy. “The question,” noted Chairman John Thune, “is no longer whether we need a federal law to protect consumers’ privacy. The question is what shape that law should take.” The Senators and testifying witnesses expressed strong support for a comprehensive federal privacy law. (more…)

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27 September 2018

Why it’s Unconstitutional for Politicians – Including the President – to Block People on Social Media

*This article first appeared in the Washington Post on September 26, 2018.

In a recent piece for Washington Post Outlook, Chris Fonzone and Josh Geltzer (from the Georgetown Law Center’s Institute for Constitutional Advocacy and Protection) explained why a legal case that began with a dispute between a Loudoun County supervisor and a constituent may help set a new standard for online interaction nationally:

A legal case that began with a dispute between a member of the Loudoun County Board of Supervisors and a constituent may help to set the rules for how government officials — up to and including President Trump — interact with the public online. A federal appeals court in Richmond will hear the case this week, and, while the stakes of the conflict may seem small at first — one man was banned for a day from an official’s Facebook page — it has potentially enormous First Amendment implications. (more…)

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