In an increasingly rare act of bipartisanship on Capitol Hill, Sens. John Kennedy (R-La.) and Amy Klobuchar (D-Minn.) are co-sponsoring a measure to strengthen the privacy of digital consumers.
The proposal, the Social Media Privacy Protection and Consumer Rights Act of 2021, could fundamentally change the legal landscape that currently allows social media giants such as Facebook and Amazon virtually unlimited access to and use of individuals’ data on the internet.
“Social media companies have a duty to protect their users’ data and to offer quick solutions when a breach occurs. The Social Media Privacy Protection and Consumer Rights Act would strengthen users’ control over their own data and better protect their privacy.”
Klobuchar echoed the sentiment in the statement.
“For too long companies have profited off Americans’ online data while consumers have been left in the dark. This legislation will protect and empower consumers by allowing them to make choices about how companies use their data and inform them of how they can protect personal information,” she said.
In their joint statement, the senators said that “social media and other online platforms routinely capture users’ behavior and personal information, which they then use to help advertisers or other third parties target those users.”
Unregulated access to key consumer behavior data has driven the internet to become the most powerful advertising and communications platform in the world.
- Give consumers the right to opt out and keep their information private by disabling data tracking and collection.
- Provide users greater access to and control over their data.
- Require terms of service agreements to be in plain language.
- Ensure that users have the ability to have access to any personal information that has already been collected and shared.
- Mandate that users be notified of a breach of their information within 72 hours.
- Offer remedies for users when a breach occurs.
- Require that online platforms have a privacy program in place.
Sen. Bill Hagerty (R-Tenn.), who is serving his first term in the Senate, recently introduced his 21st Century FREE Speech Act, which takes a different approach from Kennedy and Klobuchar’s and Hawley’s measures.
Hagerty took a cue from a concurring opinion by Supreme Court Justice Clarence Thomas, who suggested Big Tech companies could be classified by the government as “common carriers,” much like utilities.
“For too long, Americans have watched Big Tech abandon the foundational American principles reflected in the First Amendment—free speech, freedom of thought and belief, free assembly, and the open exchange of ideas,” Hagerty said in introducing his measure, which would reclassify the Big Tech giants as Thomas suggested.
“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another,” Thomas wrote.
“A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public.”
Federal law dictates that companies can’t “be treated as the publisher or speaker” of information that they merely distribute, according to 110 Stat. 137, 47 U.S.C. Section 230(c). The analogy to common carriers is even clearer for digital platforms that have dominant market share.
“Similar to utilities, today’s dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it,” Thomas wrote.
