Considering the privacy concerns raised by data brokers, we thought it would be useful to compare how data brokers are treated under Senator Edward Markey’s recent data broker bill, which has considerable support from privacy and consumer advocates (as well as Senators Blumenthal, Franken, and Whitehouse), and under the Consumer Privacy Bill of Rights.
The different receptions each bill has received is interesting in light of the fact that Sen. Markey’s bill echoes much of the Consumer Privacy Bill of Rights (CPBR) by giving consumers greater access to and control over personal data collected about them. While the CPBR has a broader scope and attempts to set out privacy and security obligations across sectors and industries, its provisions would still apply to data brokers and perhaps accomplish some of the same aims as the Markey bill.
Scope: Who and What Gets Covered?
The Markey bill applies exclusively to data brokers, which are defined as a “commercial entity that collects, assembles, or maintains personal information concerning an individual who is not a customer or an employee of that entity in order to sell the information or provide third party access to the information.” The CPBR applies to any “covered entity” that collects, creates, processes, retains, uses, or discloses personal data, which would include data brokers. Though it does provide several carve outs, it is unlikely that most data brokers within the meaning of the Markey bill would fall under any of the exceptions in the CPBR.
The CPBR has a far more detailed definition of personal information, which echoes the definition used by the Federal Trade Commission. It focuses on any information that is linked or linkable to a specific individual – or that is linked to a device that is associated with or routinely used by an individual. The definition sets forth a non-exhaustive list of types of personal data (notably “unique persistent identifiers” and “unique identifiers or other uniquely assigned or descriptive information about personal computing or communication devices”). It carves out de-identified data (detailing the requirements for data to be considered de-identified), deleted data, employee information and some “cyber threat indicators.”
The Markey bill does not give a precise definition of personal information but does differentiate between non-public and public record information, placing different correction requirements on data brokers for each category. The Markey bill emphasizes that non-public information is “of a private nature,” but it is unclear whether non-public information would precisely capture all of the types of data envisioned by the CPBR definition.
Both acts would oblige data brokers to provide the individual with a clear and conspicuous notice. The Markey Bill requires the data broker to maintain an internet website to allow individuals to review information about them and to express their preferences. The CPBR does not have this requirement, but the broader bill is more precise with regards to the content and format of the notice, which shall inform the consumer about the company’s privacy and security practices.
Accuracy, Access, and Correction Rights
Both bills require data brokers to maintain reasonable procedures to ensure that personal data under their control is accurate. However, the core of both bills is focused on improving consumer access to their personal data, as well as their ability to correct any inaccuracies.
The Markey bill and the CPBR would set out obligations for data brokers to provide consumers with access to their information upon request. In terms of access requirements, the Markey bill requires data brokers to “provide an individual a means to review any personal information or any other information that specifically identifies that individual, that the data broker collects, assembles, or maintains on that individual.” The CPBR requires that individuals be given “reasonable access to, or an accurate representation of, personal data that both pertains to such individual and is under the control of such covered entity.”
Although both bills offer an access right, the CPBR contains some limitations that could result in consumers being denied access by data brokers. Specifically, the bill states that the “degree and means of any access shall be reasonable and appropriate for the risks associated with the personal data, the risk of adverse action against the individual if the data is inaccurate, and the cost of the covered entity of providing access.” There is considerable question about how these considerations might limit access.
Both bills require data brokers to give individuals the ability to challenge the accuracy and completeness of any personal data they hold about a consumer. If a consumer can prove an inaccuracy, the Markey bill requires the data broker to correct the information. It is interesting to note that the CPBR would allow a data broker to decline to correct an inaccuracy in cases where the use of incorrect data cannot result in an adverse action against an individual, but then gives consumers the right to demand the information be deleted.
While the CPBR places a number of limitations on consumer access, the Markey bill places similar limits on the ability of consumers to correct information. For example, the CPBR limits access requests that are “frivolous and vexatious,” and the Markey bill allows data brokers to deny requests to correct information that it believes are “frivolous or irrelevant.”
Individual Control and Accountability
The CPBR emphasizes the importance of individual control, and would require data brokers to provide individuals with “reasonable means to control the processing of personal data about them in proportion to the privacy risk to the individual and consistent with context.” However, the bill is largely silent as to what “reasonable means” could entail, but it allows for companies to satisfy the right of individual control by permitting individuals to request that their personal information be de-identified. The Markey bill is more direct, giving individuals the right to stop data brokers from using, sharing, or selling their personal information for marketing purposes through an opt-out mechanism.
The Markey bill’s accountability obligation consists only of an auditing requirement, requiring each data broker to “establish measures that facilitate the auditing or retracing of any internal or external access to, or transmission of, any data containing personal information collected, assembled, or maintained by the covered data broker.” The accountability obligations are much broader in the CPBR. It includes, but is not limited to, employee training, audits, “privacy by design,” and contractual requirements.
Despite the completely different reception each bill received, this short analysis suggests that both would impose similar obligations on data brokers. Both work to improve transparency around data practices and to improve consumer’s access to the vast array of personal information being held by data brokers. There is no question many provisions in the CPBR have been sharply criticized, but the bill could largely facilitate the same goals as the Markey bill. In some respects, the broad nature of the CPBR even allows the bill to go further than the Markey bill, offering important security obligations and contextual considerations that are not addressed by the Markey bill at all.
-Joseph Jerome and Bénédicte Dambrine