Free State Foundation on Privacy Regulation: Why, What, and When

The Free State Foundation hosted a policy seminar June 26 featuring Federal Trade Commissioner Noah Phillips and Sen. Marsha Blackburn (R-TN) to discuss potential new privacy regulation at all levels of government.

All of the speakers expressed the immediate need for action from Congress on the issue of privacy legislation, without which the states will be left to create a patchwork of privacy laws that will confuse consumers and companies who operate across jurisdictions. Federal privacy legislation, they agreed, with the right legal framework, will be most effective in protecting consumers. Kelly Cole of the Cellular Telecommunications Industry Association noted that “we need a national privacy framework that ensures consistent treatment of consumer information across platforms and applications.”

Commissioner Phillips, who delivered the keynote address, added that “Where we have a variety of differing state laws, the FTC will have to engage in competing investigations and lawsuits with state law enforcement agencies, rather than more efficient collaborations.” While Congress must be the ones responsible for new privacy laws, he said, “any legislation that Congress determines to enact should maintain the FTC’s role as the nation’s primary privacy enforcement agency.”

He also dove deeper into how Congress can appropriately enact privacy legislation without placing excessive compliance burdens on small companies and new market entrants. He praised Europe’s General Data Protection Regulation (GDPR) for being the first to adopt extensive national data protections, but noted that the U.S. should look to its own “traditional harm-focused, risk-based approach” when considering our own data protection laws.

Sen. Blackburn stressed the value of consumer data, and the mishandling of it by large corporations that would be targeted by new privacy laws. “It’s become increasingly obvious that tech companies,” she said, “absolutely cannot self regulate anymore. They do not have the self-restraint.” In April, the senator introduced the Balancing the Rights of Web Surfers Equally and Responsibly (BROWSER) Act that will require tech companies to provide consumers with the control to opt-in to the collection of sensitive personal information and opt-out of the collection of less sensitive data.

Sen. Blackburn echoed Commissioner Phillips’ concerns about privacy legislation, cautioning against too much regulation that she said would stifle innovation in the online sphere.

The panelists admitted that the road to comprehensive consumer data protection at the federal level is long, and a new framework may not be completely adopted for several years, but a bipartisan interest in protecting consumers from abuses online will drive the rapid reform needed in privacy and cybersecurity.

Author: Katie Ryerson