Rep. Markey to Data-Brokers: Let's Start with Kids, Then Tackle Data Privacy for the Rest

by BakerHostetler
Contact

In a briefing convened by the Congressional Bi-Partisan Privacy Caucus December 13, 2012, co-chairs Ed Markey (D-MA) and Joe Barton (R-TX) tried to advance their agenda of enhancing children’s online privacy in the context of exploring the scope and practices of “data-brokers.” Panelists included credit bureaus, marketing companies, FTC Commissioners, and privacy advocates.

Markey kicked things off with a pithy characterization of the current situation regarding technology and big data as both the best of times and the worst of times, with immense benefits and huge potential costs. He seemed pleased with companies’ “timely and detailed” responses to his request for information in July. Neither he, nor Barton wants to shut down targeted advertising. Nonetheless, existing law has “gaps” and he wants to “ratchet up” transparency and give consumers more control over their personal information. Commissioner Brill, who served as the moderator while Markey and Barton attended to floor votes, expressed several concerns about comprehensive data collection:

  • Current sectoral laws, such as HIPAA, protect information only in limited circumstances; reacting to Markey’s hypothetical of a girl doing online research on anorexia, Brill suggested additional types of information may need protection.
  • ‘E-scores’ or marketing scores that rank consumers by potential value have could have negative, discriminatory impacts on consumers, placing them in marketing “buckets,” i.e. for subprime loan advertisements, potentially based on incorrect information, from which there is no escape.
  • Responding to industry concerns about capturing the thousands of diverse companies that use consumer data in defining the term “data-broker” and fears of a one-size-fits-all approach to regulation, Brill suggested a distinction between consumer-facing and non-consumer facing companies may be appropriate, due to the latter lacking transparency and consumer access.

Several company panelists argued for self-regulation, while others pointed to FCRA as a model that has withstood the test of time – a point with which the privacy advocates concurred. Ultimately, Brill and Markey seemed to agree that an appropriate starting point would be to address practices of the top 100-200 data-brokers, however that term is ultimately defined.

On kids’ privacy, Markey and Barton plan to reintroduce their Do Not Track Kids Act (H.R. 1895) next year and amass well beyond its current 45 cosponsors. In its current form, the bill would, among other things, amend COPPA to prohibit Internet companies from sending targeted advertising to children and minors. However, at the briefing, Barton suggested there be a flat prohibition on collecting information from kids under 13, while Markey suggested COPPA cover kids up to age 15. When pressed, several data-broker panelists were indifferent to the proposals, saying they simply don’t collect data from children. Others, however, noted difficulty with determining the age of online consumers. In response, FTC Chairman Jon Leibowitz strongly implied he disagrees with those who have argued for inclusion of an “actual knowledge” standard in any updates to COPPA, saying with kids, “the benefit of the doubt” has to be given to privacy over data collection. (In subsequent remarks, Brill indicated the FTC’s proposed changes to COPPA should be finalized by year-end.) Markey concluded the briefing saying that everyone should be able to agree on protecting kids; they should be protected first and then [industry, privacy advocates, and policy-makers] can return to work out other issues. As readers of this blog know by now, 2013 promises to be another banner year for privacy law and policy.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.