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United States Privacy Digest | A view from DC: Roundup & reflections for May 13, 2022 Related reading: Heard around DC — Roundup and reflections for May 6, 2022



If you find yourself watching a hockey game (go Caps!) there’s an undeniable thrill when a player is released from the penalty box and the announcer crows that the team is back to “full strength.” It was the same feeling this week as the Federal Trade Commission regained a fifth commissioner. Ten months after Georgetown professor Alvaro Bedoya had first been nominated to the seat, he was confirmed by the Senate via a tie-breaking vote from Vice President Kamala Harris. Widely respected across the technology policy spectrum, Bedoya’s expertise will be a welcome addition to the Commission as it continues its enforcement and rulemaking activities. In the coming months, we will see whether any ongoing FTC actions have been awaiting a third Democrat vote. Either way, an FTC at full strength will be worth watching. (For more insights from FTC watchers, check out yesterday’s coverage in The Privacy Advisor.) Here's what’s happened since the last roundup:

  • The EEOC and DOJ issued a “technical assistance document” warning employers against disability discrimination through algorithmic hiring tools. Part of the Equal Employment Opportunity Commission’s Artificial Intelligence and Algorithmic Fairness Initiative, which seeks to ensure that AI used in hiring and other employment decisions complies with federal civil rights law, the guidance includes factors that may be relevant to privacy officers. This includes a reminder to provide proper notice to job applicants (describing the type of hiring technology being used and how to seek reasonable accommodations) and to avoid collecting “disability-related information.”
  • Clearview AI agreed to ongoing restrictions on its use of facial recognition data. In a proposed settlement with the ACLU and other public interest groups, Clearview AI agreed, among other restrictions in line with the Illinois Biometric Information Privacy Act, to cease selling its faceprint database to private companies and individuals in the United States. The terms of the settlement, which Clearview representatives described as a win because they require “no changes to its current business model,” also highlight differences in biometric privacy between U.S. states, as Clearview will continue marketing its FR systems to law enforcement (and other exempt entities under BIPA) in every state but Illinois.
  • Sen. Michael Bennet, D-Colo., introduced the Digital Platform Commission Act. The bill would create a new federal agency governing “systematically important” online platforms, with rulemaking authority over everything from algorithms to privacy to disinformation. Notably, the act would empower a “Code Council” consisting of six representatives each from platforms, public interest groups and technical advisors, who could recommend codes, standards or policies for adoption by the Commission. Public Knowledge, which has long proposed a solution along these lines, applauded the move. The proposal also aligns broadly with Microsoft President Brad Smith’s on-stage speech at the Global Privacy Summit for a dedicated digital regulator in the U.S.
  • What would federal privacy legislation look like if it passed today? For an update on where the privacy conversation stands on the Hill, with insights on the remaining sticking points and evolving consensus, please join our LinkedIn Live session next Tuesday. I’ll be speaking with Tatyana Bolton of R Street and Sara Collins of Public Knowledge.
  • Under scrutiny:
    • ICE is the subject of an in-depth report titled "American Dragnet" from Georgetown’s Center on Privacy and Technology. The Center alleges that the Immigrations and Customs Enforcement agency “now operates as a domestic surveillance agency” and has “built a dragnet surveillance system by crossing legal and ethical lines” that enables it to “pull detailed dossiers on nearly anyone … without any judicial, legislative or public oversight.”
    • T-Mobile clarified its consumer privacy disclosures in response to an inquiry from BBB National Programs’ Digital Advertising Accountability Program related to the company’s move, in line with other U.S. mobile carriers, to use online browsing activity to target advertisements to its customers.
    • Leaky web forms, so called because they collect inputs before users press “submit,” are the subject of a recent study profiled in Wired. The article also adds allegations from the researchers related to pre-submission collection of data through the marketing trackers Meta Pixel and TikTok Pixel.

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