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‘Over the Finish Line’

Blumenthal, Blackburn Set Lame-Duck Sights on Kids Privacy

The priority during the lame-duck session for Senate Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn., and ranking member Marsha Blackburn, R-Tenn., is to pass kids privacy legislation, staffers for their offices said Wednesday.

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The Senate Commerce Committee passed the Kids Online Safety Act (KOSA) (S-3663) unanimously in July (see 2207270057). Jamie Susskind, Blackburn’s tech policy adviser, said she’s not “super optimistic” Congress can pass a comprehensive privacy bill before members leave for the holiday. But Blumenthal and Blackburn are committed to getting KOSA passed in the lame duck, she said. Blumenthal and Blackburn recently met with parents of children who have died in recent tragedies involving social media, she said during an FCBA conference.

Kids' privacy and safety is “incredibly bipartisan,” said Collin Anderson, privacy adviser to Blumenthal. Concerns over tech accountability have “different shapes and forms,” and some of it skews toward a particular party, but there’s a common set of interests, regardless of who controls what chamber, said Anderson. Susskind said members remain committed to tangible solutions on privacy, whereas in the past some members have offered talking points just to show Congress is trying.

Congress’ “anemic” response on comprehensive privacy is the primary reason the FTC is moving forward with a potential privacy rulemaking, said former FTC Chairman Jon Leibowitz, now a senior counsel for Maryland Attorney General Brian Frosh (D). In terms of timeline, Leibowitz said if the FTC promulgates a notice of proposed rulemaking by mid-2023, that would be a “speedy use of the clock” under the agency’s Magnuson-Moss rulemaking procedures. The comment period on the agency’s advanced notice of proposed rulemaking (ANPR) closes Monday.

Commenters are sure to address the FTC’s level of authority in regulating the economy through privacy rules, panelists said Wednesday. Leibowitz conceded that some things the FTC embedded in its ANPR, in terms of consumer protection aspirations, are more “policy issues” for Congress to address than they are regulatory issues for the commission to handle. “They’re going to have to think long and hard about the things they aspire to do” to improve society, he said.

The tech industry has concerns about how the agency attempts to use “commercial surveillance” as a “catch-all term” for all data collection practices in its ANPR, said Information Technology Industry Council Senior Vice President-Policy John Miller. “It not only ignores the beneficial uses of data, but it pretty clearly sweeps in all types of rather innocuous processing activities.” Former acting FTC Chairman Maureen Ohlhausen, now a partner at Baker Botts, said the FTC’s practice of case-by-case enforcement has been “pretty effective” in the absence of significant rulemakings. On FTC Chair Lina Khan’s desire to establish a public record on privacy, she said former FTC Chairman Joe Simons already did that through a series of public hearings on various topics before the commission during his tenure under President Donald Trump. The FTC won’t be able to address all social issues it set forth in the ANPR, said Tatiana Rice, Future of Privacy Forum Policy counsel-U.S. legislation: The notice looks like something “more akin” to something that can be accomplished through federal data privacy legislation, and “they’re probably not going to be able to address all of it.”