In light of the recent scandal regarding Facebook and Cambridge Analytica, the general public has been up in arms about the protection of their personal data.  A recent survey found that less than half of Facebook users trust Facebook to comply with American privacy protection laws.

As such, last year’s Balancing the Rights of Web Surfers Equally and Responsibly (“BROWSER”) Act has been come under renewed scrutiny.  Originally introduced in 2017, the BROWSER Act requires both internet service providers (“ISPs”) and content providers (e.g., mobile apps, Facebook, Google, etc.) to obtain opt-in consent from users before sharing the user’s personal information with third parties.  Currently, it is common practice for content providers to not only collect a user’s personal data (e.g., email address, location, etc.) but to pass it along to third-party marketing agencies or similar businesses.  Users often provide consent for the sharing of their information by agreeing to that website or business’s terms of service or use.  Because there has been no overall federal guidance or law that prohibits companies from sharing user data in this manner, companies have long used the data that they have gathered on their users to provide better targeted advertising or to sell to other companies that need such data.

In response, the government introduced the BROWSER Act to regulate the sale and transfer of user-data.  On its face, the BROWSER Act seems relatively simple, but overall reception to the BROWSER Act has been mixed.  Some critics believe that the BROWSER Act will have a chilling effect on innovation because it requires a user’s personal information to be divided and categorized into “sensitive” and “non-sensitive” data.  While the BROWSER Act does generally define what constitutes sensitive information: any information that is deemed to be financial, health or children-related, etc.), information deemed “non-sensitive” would still have to be carefully sorted through in order to ensure that a user’s sensitive information was not mistakenly disclosed.  As such, most expect that the BROWSER Act would inevitably require users to opt-in and provide content for the sharing of both sensitive and non-sensitive data, regardless of the BROWSER Act’s intent.  Some critics have even gone as far as to say that millions of jobs could be negatively impacted by the passage of the BROWSER Act because of the loss of mass revenue and business brought in by targeted-advertising on the Internet.

Proponents of the BROWSER Act insist, however, that protection of a user’s private data has become more important now than ever.  While the Federal Communications Commission (“FCC”) previously only had jurisdiction over telecommunications companies and businesses, the improved federal BROWSER Act would expand federal privacy protection and oversight to edge providers such as Google, Twitter, and Facebook, which were previously exempt from the FCC’s jurisdiction.  While some privacy experts, including the American Civil Liberties Union, support the general concept and aim of the BROWSER ACT, they, too, agree with other critics that believe that the BROWSER Act’s weakening of the FCC’s control over privacy protection regarding user-data is ill-advised and misguided.

While time will only tell how well the BROWSER Act will be received and how much it will change before total passage, it would behoove intellectual property counsel to closely follow the development and progress of the bill as it makes its way through Congress.

For more information on this topic, please visit our Data Privacy service page, which is part of our Technology & Data Practice.

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