Congress Should Pass a Strong Federal Privacy Law that Protects Consumers, Promotes Innovation, and Enables the Use of Publicly Available Information

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On March 12, the Senate Judiciary Committee held a hearing on “GDPR & CCPA: Opt-ins, Consumer Control, and the Impact on Competition and Innovation.” The Committee heard from witnesses representing industry, consumer organizations, and academia, who discussed a broad range of issues to inform a federal privacy law: from meaningful consumer controls to the successes and failures of other privacy frameworks to beefed up enforcement by the FTC .

One important topic that was not discussed was the importance of publicly available information and how it should be treated by a federal privacy law. As SIIA explained in recent comments to the Senate, the social benefits and public policy principles promoted by the processing of public data are tangible, indisputable, and balanced. Public data is used to provide choice and access to credit for personal finances, to enable credit for business expansion to grow our economy, and to promote public safety. Moreover, the free flow of public data is enabled by constitutional demand. Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (internal citations omitted).

This begs the question, what is public data? Public data is just what its name suggests. It is information about individuals, businesses, or individuals acting in a business capacity that is in the public domain. It includes information derived from public records. It is open by its nature, and therefore, individuals presumptively have no reasonable expectation of privacy over such data.

On balance, the processing of public data poses little risk of individual harm, and yet reaps enormous public benefit. These social benefits include its use for (1) the rapid and inexpensive access to credit for consumer purchases and business expansion; (2) the promotion of public safety by helping law enforcement disrupt frauds, stop modern slavery, track down terrorists and criminals, and locate missing persons through the identification of perpetrators, witnesses, and evidence; and (3) corporate due diligence to help business comply with federal “know your customer standards,” and make decisions about whether to engage in business dealings.

SIIA strongly endorses a comprehensive federal privacy law that provides meaningful consumer protection, promotes, innovation, and enables the use of public data. To ensure that a federal privacy law does not unnecessarily impede the use of public data, Congress should exempt it from the definition of personal data. SIIA will file a statement with the Senate Judiciary Committee soon to bring this and other issues important to our membership to their attention.

Sara Sara DePaul is SIIA’s Senior Director for Technology Policy and Enforcement.