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Data Privacy Update: Newly-Proposed Legislation

As we move further into the technology age, few efforts are more important than data protection. Without even thinking about it, many individuals are offering up highly-sensitive personal information daily to complete online transactions, communicate with others, get a job, apply for credit, and so on. 

While online gateways and other data retrieval systems can work to secure information transfer and storage, they aren’t infallible. The truth is that breaches are possible, in fact, they aren’t remarkably uncommon. Unfortunately for consumers, protective legislation that addresses consumer data privacy is sparse, meaning victims of data privacy breaches have less right to action than they probably should.

Moving the Needle

While federal legislation such as the Fair Credit Reporting Act (FCRA) helps to ensure the accuracy and fairness of consumer information, it specifically regulates credit reporting agencies such as background screening organizations and credit bureaus. Moreover, the FCRA only loosely defines general consumer privacy rights. In other words, the FCRA doesn’t provide the full data privacy protection many consumers and lawmakers are lobbying for.

The American Data Privacy and Protection Act

Last month, members of the House of Representatives including those in the Energy and Commerce Committee met together to discuss a new bill, which is fundamentally aimed to better define and protect consumer data privacy rights.

This bipartisan bill would allow enforcement by the FTC on specified mistreatment of “covered data.” As it pertains to this bill, “covered data” is defined to include the following (per the Energy and Commerce Committee bipartisan privacy discussion draft): 

  • A government-issued identifier, such as a social security number, passport number, or driver’s license number, that is not required by law to be displayed in public.
  • Any information that describes or reveals the past, present, or future physical health, mental health, disability, diagnosis, or healthcare treatment of an individual.
  • Any information that describes or reveals the past, present, or future physical health, mental health, disability, diagnosis, or healthcare treatment of an individual.
  • Biometric information.
  • Genetic information.
  • Precise geolocation information that reveals the past or present actual physical location of an individual or device that identifies or is linked or reasonably linkable to 1 or more individuals.
  • An individual’s private communications, such as voicemails, emails, texts, direct messages, or mail, or information identifying the parties to such communications, information contained in telephone bills, voice communications, and any information that pertains to the transmission of voice communications, including numbers called, numbers from which calls were placed, the time calls were made, call duration, and location information of the parties to the call, unless the covered entity is an intended recipient of the communication.
  • Account or device log-in credentials.
  • Information revealing an individual’s race, ethnicity, national origin, religion, union membership, or non-union status in a manner inconsistent with the individual’s reasonable expectation regarding disclosure of such information.
  • Information identifying the sexual orientation or sexual behavior of an individual in a manner inconsistent with the individual’s reasonable expectation regarding disclosure of such information.
  • Information identifying an individual’s online activities over time or across third-party websites or online services.
  • Calendar information, address book information, phone or text logs, photos, audio recordings, or videos maintained for private use on an individual’s device, regardless of whether such information is backed up in a separate location.
  • A photograph, film, video recording, or other similar medium that shows the naked or undergarment-clad private area of an individual.
  • Information identifying or revealing the extent or content of any individual’s access or viewing or other use of any television service, cable service, or streaming media service.
  •  Information of an individual under the age of 17.

The Road to Approval

This bill has seemed to gain traction among many members of Congress both Republican and Democrat. However, with the upcoming 2022 midterm elections and other economic priorities, it is unlikely that the bill will make its way to the top of the congressional to-do list in the immediate future. And as always, there are some barriers to passage that could cause this bill to fail. That being said, many view this proposed legislation as a step in the right direction for consumer protection.

For more information about background screening and consumer rights under the FCRA, browse our article library.

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