Kennedy Patlan and Alex Kennedy are senior associates at Freedman Consulting, LLC, where they work with leading public interest foundations and nonprofits on technology policy issues. Kavya Shah, a Freedman Consulting Phillip Bevington policy & research intern, also contributed to this article.
As summer kicks off, tech advocacy groups and policymakers are discussing the data privacy implications of a world without Roe v. Wade, and comprehensive data privacy reform may at last be within reach. Meanwhile, Congress is pushing forward on antitrust legislation, and President Biden announced a White House Task Force that will address online harassment and abuse. On the consumer side, the Federal Trade Commission (FTC) is developing privacy regulations and has issued a report highlighting the limits of artificial intelligence (AI) to address online harms.
The below analysis is based on techpolicytracker.org, where we maintain a comprehensive database of legislation and other public policy proposals related to platforms, artificial intelligence, and relevant tech policy issues.
Data, Women’s Rights, & Healthcare
- Summary: On Friday, June 24th, the Supreme Court overturned Roe v. Wade, which immediately sparked reactions and responses from politicians, tech policy advocates and organizations, and elevated the importance of ongoing data privacy work. In mid-June, Democratic senators introduced new legislation to create protections for Americans’ health privacy. The Health and Location Data Protection Act, co-sponsored by Senators Patty Murray (D-WA), Bernie Sanders (I-VT), Elizabeth Warren (D-MA), Sheldon Whitehouse (D-RI), and Ron Wyden (D-OR) will set more rules for the data broker industry and ban brokers from selling user location and health data. Representative Sara Jacobs (D-CA) also introduced the My Body, My Data Act in the House. The bill would create a new standard to protect personal reproductive health data and would utilize the FTC as an enforcer of the law. Representative Jacobs’ bill currently has over 40 co-sponsors and support from organizations such as Planned Parenthood and NARAL Pro-Choice America.
- Stakeholder Response: House Speaker Nancy Pelosi sent a letter to her Democratic colleagues highlighting the party’s efforts to safeguard reproductive health data stored in apps, while top Democrats criticized the American Data Privacy and Protection Act’s failure to protect abortion related data. In addition to legislative action in the House and Senate, technology advocacy groups are helping abortion patients learn how to protect their data. The Digital Defense Fund released a digital guide and infographics that show users how to protect themselves from advertisers, tech companies, private individuals, anti-abortion groups, and/or government agencies who could obtain personal data related to abortion searches and actions. The Electronic Frontier Foundation also published a blog post that includes privacy tips for those seeking abortion care. Following the announcement of the My Body, My Data Act, the Network Advertising Initiative, a self-regulatory association for third-party digital advertisers, released voluntary privacy standards that will create restrictions on the use of geolocation data in “sensitive locations.” Foursquare, Cubeiq, and PreciselyPlaceIQ have all signed on to follow the standards. Fourteen Democratic senators and seven House Democrats also sent a request to Google, asking the company to provide accurate results to people searching for abortion resources.
- What We’re Reading: The Washington Post Technology 202 covered Representative Jacobs’ new bill. Tech Policy Press covered the potential data privacy implications of Roe v. Wade being overturned. Politico reported on the technology security preparations of abortion healthcare advocates and providers. The Wall Street Journal considered the potential implications of the Dobbs v. Jackson Women’s Health Organization ruling on period tracker apps, while TechCrunch shared the stories of consumers who are switching healthcare apps. On the tech side, Axios reported that companies may be planning to share abortion-related data with law enforcement. In related healthcare news, The Markup reported on Facebook’s tracking tools, which were revealed to be collecting patient data from hospital sites. The Center for Democracy & Technology has also studied the privacy concerns arising from the increasing reliance on biometric data through the COVID-19 pandemic. Finally, a recent report by LGBT Tech and the Future of Privacy Forum argued that data privacy regulations must extend to safeguarding online information about gender identity and sexual orientation.
Data Privacy is Front and Center on Capitol Hill
- Summary: For the first time, a comprehensive federal U.S. data privacy bill may be within reach. The American Data Privacy and Protection Act (H.R. 8152), co-sponsored by Representatives Frank Pallone (D-NJ), Cathy McMorris Rodgers (R-WA), and Roger Wicker (R-MS), is a wide-reaching attempt to limit the amount of consumer data corporations can collect, give consumers more control over their information, and restrict the targeted use of sensitive information. For the first time, the act’s sponsors have reached bipartisan agreement on two key issues that have stalled previous negotiations: 1) whether federal privacy regulation should supersede state laws, and 2) whether individuals should have the ability to sue companies for violating the law’s provisions (called a private right of action).
- Stakeholder Response: Senator Maria Cantwell (D-WA), chair of the Senate Commerce Committee, has reservations about the bill’s nuances – arguing that its enforcement mechanisms are riddled with loopholes that must be addressed before the bill preempts existing state laws. Her support is crucial to the advancement of any federal privacy legislation, and in recent interviews, she has made it clear that neither she nor Senate Majority Leader Chuck Schumer will push the draft forward as it is. Other key senators, including Sen. Richard Blumenthal (D-CT) and Sen. Brian Schatz (D-HI), remain opposed to the bill, citing concerns over enforcement provisions and weak language when it comes to corporate responsibility. In the public interest space, opposition to the draft spans a range of perspectives – with the ACLU claiming that negotiations were rushed and the bill too weak to provide protection, while the US Chamber of Commerce believes the bill’s private right of action will stifle “data-driven innovation.” On the other hand, a group of more than 50 public interest organizations has called on Congress to deliver comprehensive privacy legislation that encompasses many of the provisions reflected in this bill; letter-signers also testified in a hearing and recommended potential improvements. Some analysts believe major tech companies’ seeming embrace of privacy legislation is meant to draw lawmakers’ attention away from antitrust bills that are far closer to passage – which could prove devastating for “Big Tech” business models.
- What We’re Reading: Politico summarized the bill, its future, and what it could mean for data privacy in the US. Brookings discussed what role the legislation’s privacy provisions might play in protecting voters online. GovTech examined what the tangible impact of this legislation might be and the questions that remain unanswered. CNBC reported on Apple CEO Tim Cook’s recent Capitol Hill visit in support of federal privacy legislation.
Antitrust Lobbying Ramps Up
- Summary: This summer continues to be packed with antitrust legislation activity. On June 15, the State Antitrust Enforcement Venue Act of 2021 passed the Senate, which would allow state attorneys general to carry cases in their court of choice. The bill is currently awaiting House action. As the potential for a summer congressional vote on the American Innovation and Choice Online Act (AICOA) and the Open App Markets Act remains, groups on both sides of the antitrust debate have redoubled lobbying efforts.
- Stakeholder Response: This month, advocates for antitrust legislation received a boost of support from John Oliver, who spent 25 minutes of his popular show outlining the need for more Big Tech oversight and accountability. Fight for the Future and 100+ coalition partners kicked off an Antitrust Summer Campaign to motivate Congress to vote in favor of the two major antitrust bills. The Tech Oversight Project also launched a media campaign that calls out Big Tech’s lobbying efforts against antitrust legislation. Free Press Action and TechFreedom sent a letter to Senators Schatz (D-HI), Ben Ray Luján (D-NM), Wyden (D-OR), and Tammy Baldwin (D-WI), warning them of the implications that AICOA could have on platform moderation and efforts to address hateful content. On the opposition side, Google, Apple, and Amazon’s CEOs have all been meeting with policymakers to voice their objections.
- What We’re Reading: WIRED outlined the concerns around the American Innovation and Choice Online Act’s lack of a content moderation policy. Center for American Progress provided an analysis and endorsement of the AICOA and Open App Markets Act. Politico detailed Big Tech’s opposition and lobbying efforts. The New York Times reported that Uber and Lyft drivers filed a lawsuit with claims that the rideshare companies are violating antitrust laws.
FTC Warns Against Using AI to Combat Problems Online
- Summary: As directed by Congress in 2021, the FTC generated a report on whether and how AI “may be used to identify, remove, or take any other appropriate action necessary to address” a wide variety of online harms. The FTC’s report, issued on June 16, cautioned against using AI as the default or primary solution to online harms, citing the risk of additional harms caused by AI tools. Among the problems detailed in the report are AI’s “inherent design flaws and inaccuracy,” AI’s propensity to reflect societal biases and discriminate against protected classes of people, and AI’s capacity to “incentivize and enable invasive commercial surveillance and data extraction practices.” Meanwhile, under Chair Khan’s leadership, the FTC is writing regulations that utilize the FTC’s existing powers to address “lax security practices and data privacy abuses” even in the absence of congressional action.
- Stakeholder response: All five FTC Commissioners issued public statements following the 4-1 vote to send the AI report to Congress. Chair Lina M. Khan, Commissioner Alvaro Bedoya, and Commissioner Kelly Slaughter issued separate statements, and Commissioner Christine S. Wilson issued a concurring statement. Commissioner Noah Joshua Phillips issued a dissenting statement. Samuel Levine, Director of the FTC’s Bureau of Consumer Protection noted that the “report emphasizes that nobody should treat AI as the solution to the spread of harmful online content,” and that “combatting online harm requires a broad societal effort, not an overly optimistic belief that new technology—which can be both helpful and dangerous—will take these problems off our hands.”
- Further Reading: The National Law Review discussed what the FTC’s report may mean for future FTC rulemaking on privacy and AI in general. In other AI news, the Washington Post reported on Meta’s recent settlement with the DOJ, which Assistant Attorney General Kristen Clarke said “mark[s] the first time that Meta has agreed to terminate one of its algorithmic targeting tools and modify its delivery algorithms for housing ads in response to a civil rights lawsuit.” However, civil rights advocates note that, even in the wake of these settlements, “Facebook’s systems could continue to further discrimination even when advertisers were banned from checking specific boxes for gender, race or age.” A group of Republican lawmakers introduced the Political BIAS Emails Act to prevent email platforms from using filtering algorithms to label campaign emails, in response to a study finding significant discrepancies in the spam filtering rates for each party on various platforms. (The researchers and tech companies both dispute how the study’s conclusions were described.) This month, Meta also announced that it will be leveraging AI to verify users’ age, and Grindr announced its own launch of an AI-based system to support content moderation.
New Legislation and Policy Updates
Several new pieces of legislation were introduced this month, focusing on data privacy and antitrust. Notable bills to follow include:
- American Data Privacy and Protection Act (H.R. 8152 – Sponsored by Rep. Frank Pallone, Jr., D-NJ, Rep. Cathy McMorris Rodgers, R-WA, and Sen. Roger Wicker, R-MS): This high-profile data privacy bill – the result of long-stalled bipartisan negotiations and compromise – outlines a national standard for how companies can collect and use consumer data. It includes provisions on data minimization, targeted advertising, algorithmic audits, and limited private damage-seeking mechanisms.
- Health and Location Data Protection Act (S. 4408 – Sponsored by Sen. Elizabeth Warren, D-MA, Sen. Ron Wyden, D-OR, Sen. Patty Murray, D-WA, Sen. Sheldon Whitehouse D-RI, and Sen. Bernie Sanders, I-VT): This bill, introduced in anticipation of the SCOTUS decision overturning Roe v. Wade, restricts data brokers from selling most forms of users’ location and health information.
- My Body, My Data Act (H.R. 8111 – Sponsored by Rep. Sarah Jacobs, D-CA; S. 4434 – Sponsored by Sen. Ron Wyden, D-OR, and Sen. Mazie Hirono, D-HI): This bill mandates the data minimization of reproductive and sexual health data and allows individuals to access and delete their personal data at will, thus protecting reproductive and sexual health information not covered under HIPAA.
- Political BIAS Emails Act (S. 4409 – Sponsored by Sen. John Thune, R-SD): This bill prohibits large email platforms from using filtering algorithms to sort emails sent from political campaigns (with exceptions for emails/email addresses the user has explicitly labeled themselves). It also requires that platforms publish quarterly data about the instances in which political campaign emails were marked as spam and allows campaigns to request information about their email reach.
Public Opinion Spotlight
In June, Morning Consult weighed registered voters’ opinions on provisions within the Open App Markets Act. They found that:
- “None of the measures of the Open App Markets Act received more than 32 percent support”
- “The “Don’t know/No opinion” responses garnered the largest shares on every provision”
Equis Research published findings on misinformation impacting the Latino community. After surveying Latino adults in the US throughout winter 2022, they found that:
- Narratives such as the Big Lie (which claims that the 2020 presidential election was stolen from Donald Trump), and vaccine misinformation were familiar to upwards of 70 percent of respondents.
- However, believability varied across respondents, leading Equis Research to argue that Latino uncertainty is an opportunity for tech advocates to shift misinformation framing from belief or susceptibility to uncertainty among Latinos.
- The report also notes: “It is not the case that Latinos who are less educated or less politically informed are the most credulous. Instead, it is politically engaged Latinos — also the most likely to be college-educated and affluent — who have higher levels of both exposure to misinformation and belief in false narratives.”
The Tech Oversight Project and Hart Research Associates also released their own findings from a May 2022 survey about registered voters’ sentiment regarding Big Tech and antitrust legislation more broadly:
- 70 percent of respondents believed that America has a growing monopoly problem, and that Big Tech needed to be held accountable when they abuse their marketplace dominance.
- 76 percent of respondents were in favor of the American Innovation and Choice Online Act.
- 80 percent of respondents were in favor of the Open App Markets Act.
The organization also released a polling memo from Brian F. Schaffner, a professor of Civic Studies at Tufts University, that synthesized recent public opinion research on major technology companies and efforts to regulate them. Highlights include:
- “Americans have increasingly negative attitudes towards technology companies and these negative views are shared by Democrats, Republicans, and Independents alike.”
- “Two-thirds of Americans say that they trust big technology just a little or not at all to do what is best for their users. Distrust has increased significantly even just over the past few years.”
- “58 percent of likely voters support the American Innovation and Choice Online Act.”
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