Direct From Washington, Advancing and Protecting Responsible Data-Driven Marketing

The House and Senate are in session. 

23 States are in session.
 
In This Edition...
 
Federal Affairs

State Affairs

Federal Affairs

 
The Email Privacy Act (H.R. 699), which would amend the Electronic Communications Privacy Act (ECPA), passed the House in a 419-0 vote on Wednesday. DMA along with multiple other organizations of the Digital Due Process Coalition (DDP) sent a letter to lawmakers on Tuesday, in support of the legislation.  
 
While the letter concedes that the “bill reported from committee does not achieve all of the reforms,” wanted by industry, it “does not carve out civil agencies from the warrant requirement, which would have expanded government surveillance power and undermined the very purpose of the bill.” DMA signed onto a similar letter which was sent to Chairman of the House Judiciary Committee Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI) in support of a Manager’s Substitute added by Goodlatte several weeks ago. 
 
The legislation received a markup by the House Judiciary Committee earlier this month in which it moved to adopt Chairman Goodlatte’s (R-VA) Manager’s Amendment and report H.R. 699, as amended, to the full House in a unanimous 28-0 vote. The Chairman did not push his long advocated carveout to the legislation exempting civil agencies from needing a warrant to access stored emails as the language proved controversial on the committee, even within the Chairman’s own party.
 
The Email Privacy Act was originally scheduled for a markup in March, but was eventually postponed so the committee could meet the deadline for the budget savings package. Although the legislation has been one of the most popular bills in Congress, with over 300 co-sponsors in the House, Wednesday was the first time it received a vote in the House in 3 years. It now moves to the Senate where its chances of passage are less certain. However, the landslide victory in the House could encourage the Senate to take up the legislation fairly quickly. DMA is tracking.   
 
The Email Privacy Act, introduced by Reps Kevin Yoder (R-KS) and Jared Polis (D-CO) would close the loophole in ECPA that has allowed law enforcement and government agencies to circumvent warrant requirements for electronic communications, regardless of how long communications have been stored on third party servers. Amending ECPA would require the government to obtain warrants for any and all emails regardless of how long those communications have been stored.
 
Passed in 1986, ECPA is now widely considered to be obsolete.  Establishing specific standards protecting consumers’ electronic communications and data, the law and its subsequent amendments was intended to stop federal agents from obtaining electronic information without a warrant. However, ECPA reflects the era in which it was written – a time when emails were rarely stored on a third party server for longer than 180 days. Today, communications and consumer data of all kinds are commonly stored in different media for indefinite periods. Because the law has not been updated to reflect technological advancements, the government is now able to obtain private electronic communications older than six months with only a subpoena rather than a warrant, setting a lower standard for accessing online information than offline data.
 
DMA remains supportive of ECPA reform during the 114th Congress and continues to work with the Digital Due Process Coalition to encourage this change in legislation.
 
For more information, please contact Chris Oswald DMA’s vice president of advocacy.
 

FCC Reauthorization Bill Moves out of Committee

On Wednesday, the Senate Commerce Committee approved the Federal Communications Commission (FCC) Reauthorization bill which now passes to the Senate for a vote. Chairman of the Senate Commerce Committee John Thune (R-SD) announced he is hoping to bring the legislation to the Senate floor by the end of next Month. 
 
The bill passed committee with 18 amendments as well as a Manager’s amendment. Among the amendments was the Spoofing Prevention Act which would combat caller ID fraud schemes as well as Kari’s Law, which would allow multiline phone systems to dial out directly to 911. While as many as 44 amendments were on the table, Chairman Thune made clear only relevant ones would make it onto the bill, stating that the legislation needs to be “focused on the issue at hand.”
 
The Chairman noted prior to Wednesday’s markup that amendments that did not make it onto the legislation would have their chance for markup as stand-alone bills. The FCC Reauthorization Act was initially scheduled for a hearing in March, but the Chairman postponed it so the legislation had time to “marinate” with other committee members.
 
The measure was introduced by Thune last month and is intended to modify the terms under which the FCC operates, and delegate how and where the agency’s funding will be spent in the future. More specifically, the legislation would place new reporting requirements on the FCC, and grant funding for the agency’s spectrum auctions program. Additionally while the agency has not been reauthorized in nearly 25 years, the legislation would be effective for two fiscal years.
 
For more information, please contact Chris Oswald DMA’s vice president of advocacy.
 

FCC Process Reform Bill Moves out of Committee

On Wednesday, the FCC Process Reform Act (S.421) also passed the Senate Commerce Committee in a 13-11 vote, splitting Democrats and Republicans along party lines. The legislation was introduced by Senators Dean Heller (R-NV) and Steven Daines (R-MT) in February of last year, but has since sat in committee.
 
The legislation aims to create greater transparency and accountability in the Federal Communications Commission (FCC) rulemaking process. S.421 would require the FCC to make agency documents including reports and budgets publicly available on the agency’s website and establish “minimum periods for comments and replies,” among other things. Upon introduction Senator Heller commented that the legislation would ensure transparency that,  “delivers a better product for consumers as they will know for certain the cost of regulations to economic growth and whether new rulings are justified based on current problems facing the market.”
 
Following the markup, Chairman of the Senate Commerce Committee John Thune (R-SD) expressed doubts about the legislations chances in the Senate because of Democratic opposition. DMA is tracking. 
 
For more information, please contact Chris Oswald DMA’s vice president of advocacy.
 

IoT Bill Moves out of Committee

In addition to moving the FCC Reauthorization Act and the FCC Process Reform Act through committee on Wednesday, Senate Commerce also marked up and moved to report the Developing Innovation and Growing the Internet of Things or DIGIT Act to the Senate for a vote.   
 
The legislation was introduced in early March by senators Cory Booker (D-NJ), Kelly Ayotte (R-NH), Deb Fischer (R-NE) and Brian Schatz (D-HI) and aims to “ensure appropriate spectrum planning and interagency coordination to support the Internet of Things.” The Internet of Things allows everyday devices – everything from home appliances to smart watches to automobiles, to connect to one another, exchange data and be controlled remotely among other things.
 
DIGIT would create a multi-agency working group which would make recommendations and encourage action by Congress in the developing IoT field. The extensive working group would consist of the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), the Office of Science and Technology Policy (OSTP), the National Telecommunications and Information Administration (NTIA), the Department of Transportation (DoT), the National Institute of Standards and Technology (NIST), and the National Oceanic and Atmospheric Administration (NOAA). The working group would also consult with industry and consumer stakeholders in the IoT field.
 
The legislation follows a Resolution passed by the Senate in March 2015, which called for the U.S. to develop an IoT strategy that would best position it globally and allow for advantageous new innovation.
 
DMA continues to monitor the expanding role IoT plays in the data driven marketing community, and to educate federal and state policymakers about the economic value of the Data-Driven Marketing Ecosystem and the benefits that it provides to consumers – through the emerging IoT and in many other channels.
 
For more information, please contact Chris Oswald DMA’s vice president of advocacy.
 
 
 
The public comment period for the Federal Communications Commission’s (FCC) set-top box proposal closed on Friday, but not before lawmakers weighed in on the issue. Congressional members sent two separate letters to FCC Chairman Tom Wheeler on Friday, stating concerns over the Notice of Proposed Rulemaking (NPRM) that would open up the set-top box market to providers other than traditional cable companies.
 
The first letter, put forth by over 50 Democrats and led by Rep. Yvette Clark (D-NY), argues that further analysis of the proposals impacts must be taken into account before proceeding. The letter calls for the FCC to evaluate its potential impacts on “diversity of programming, independent and minority television programming, content protection, and consumer privacy.”
 
The second letter, signed by a group of over 20 bipartisan lawmakers and led by Rep. Doug Collins (R-GA) advocated for more substantive changes to the proposal, citing concerns about the impacts the changes would have on the entire industry “ecosystem.” Specifically, the letter wants the FCC to ensure that third parties “acquire direct licensure from the owner of the content,” in order to use or modify copyrighted programming.
 
Chairman Wheeler spoke at the House Democratic Caucus’ weekly meeting on Wednesday, where he defended the proposal to lawmakers. However, many Democrats remained concerned with the proposals effects, notably on copyright protections among other things.    
 
Lawmakers are just the latest to weigh in on proposal, which has created much uproar since it was approved last month. Last week, NTIA weighed in on the proposal raising both privacy and compliance questions about the NPRM. The White House also released a blog post last week in favor of the proposal, advocating for greater competition in the marketplace. However, the post has since received much criticism from industry stakeholders who have touted an already competitive marketplace that protects consumer privacy.
 
The public comment period for the NPRM was extended after stakeholders complained that it was not long enough to thoroughly assess the impact the proposal would have. The comment period was initially set to close on April 15th but closed last Friday, April 22nd. Reply comments are set to be due May 3rd. The Commission voted 3-2 in favor to adopt the proposal, with Republican Commissioners Ajit Pai and Michael O’Rielly dissenting.    
 
The proposal, which creates a framework for the development of technologies to allow consumers to access video services using apps and devices other than the set-top boxes provided by cable companies, was released to the public after the Commission voted in favor to adopt it. It focuses on interoperability, security, ease of access to programming, copyright protection, and consumer protection, including privacy.  
 
For more information, please contact Chris Oswald DMA’s vice president of advocacy.
 
 
On Wednesday the House Energy and Commerce Committee took on over 20 bills for markup. The committee was scheduled to consider three Republican Federal Communications Commission (FCC) transparency bills as well as multiple telecom bills. Additionally, the committee took interest in emergency service legislation, specifically a measure that would require wireless companies to provide law enforcement with location data in an emergency situation as well as one that would require multiline phone systems to directly dial out to 911.
 
The marathon markup continued in the committee into Thursday afternoon. DMA is tracking outcomes.  
 
For more information, please contact Chris Oswald DMA’s vice president of advocacy.
 
 
 
U.S. Department of State Undersecretary, Catherine Novelli spoke to press earlier this week about the creation of the ombudsperson position under the new EU-U.S. Privacy Shield agreement for transatlantic data flows.
 
Novelli assured reporters that the agreement is far from dead, even after the Article 29 Working Party (WP29), a collection of European Data Protection Authorities (DPA’s) came out with an unfavorable advisory opinion several weeks ago, specifically in reference to the ombudsperson position. Novelli mentioned that U.S. officials have been discussing the ombudsperson position with their European counterparts as well as the positions oversight responsibilities.
 
Under the new agreement, the ombudsperson, which would operate independent of U.S. agencies, would monitor law enforcement access to EU data in order to ensure adequate protection for European citizens. In its advisory opinion, the WP29 was critical of the lack of power granted to the ombudsperson and its inability to “guarantee a satisfactory remedy in case of disagreement.”
 
WP29 did praise the Privacy Shield’s “significant improvements” over its predecessor, the Safe Harbor Framework, but ultimately it had “strong concerns” over the inconsistency and “lack of clarity” in the agreement. The WP29 in particular had quarrel with the complexity of the new redress mechanisms put in place by the new agreement, including the ombudsperson position. It also blasted the U.S. Office of the Director of National Intelligence (ODNI) as not providing “sufficient details in order to exclude massive and indiscriminate collection of personal data originating from the EU.”
 
While the WP29 and the European DPA’s do not have official veto power, their opinion will carry weight in the European Commission’s (EC) decision to approve the new agreement. The EC is still expected to issue a final verdict regarding the agreement sometime in June, and will have to adopt an “adequacy” decision in order to formally adopt the Privacy Shield.
 
The WP's opinion comes after the EC released the full text of the Privacy Shield at the end of February along with a draft adequacy finding, and several fact sheets and Q&A's, which outline what the Privacy Shield will require of companies.
 
The European Court of Justice (ECJ) struck down the initial Safe Harbor Framework in October of last year following the case brought to the court by Max Schrems. He argued his data was not being adequately protected because of U.S. intelligence practices made public by former NSA contractor Edward Snowden in 2013.
 
DMA believes that means of promoting cross-border data flows must be allowed to continue - the Safe Harbor Framework offered efficient and enforceable protection for the international flow of data into the U.S. from Europe. DMA also advocates for the importance of third party regulators in the new EU-U.S. Privacy Shield. As a Safe Harbor dispute resolution provider, DMA has helped companies meet the requirements of the Safe Harbor Enforcement Principle and resolve any data privacy complaints while ensuring the free flow of data. DMA plans to continue serving as dispute resolution provider under the EU-U.S. Privacy Shield and is in the process of developing tools to assist companies with compliance.
 
For more information, please contact Chris Oswald DMA's vice president of advocacy.
 
 
 
On Monday, Senator Richard Blumenthal (D-CT) appealed to his Republican colleagues, urging them to vote on the re-nomination of Democratic Federal Communications Commissioner (FCC) Jessica Rosenworcel. His remarks come after Senate Minority Leader Harry Reid (D-NV) took to the floor last week with similar sentiments. 
 
Senator Blumenthal spoke to Rosenworcel's work on spectrum policy and emergency response among other things, advocating for her work to continue. He also cited the deal struck by Democrats and Republicans in 2014, in which Democrats moved along Republican FCC Commissioner Mike O'Rielly in exchange for the GOP nominating Rosenworcel in a Republican controlled Senate in 2015. Rosenworcel faces a December deadline for reconfirmation.
 
For more information, please contact Chris Oswald DMA's vice president of advocacy.
 
 
Whenever Congress is in session, Direct from Washington brings DMA members legislative updates vital to the data-driven marketing community. As legislators break for the first week of May, Direct from Washington will also be taking time off. 
 
We will return with a new issue on Friday, May 13th and may bring you “special edition” updates in the meantime if breaking news calls for it!
 
For more information please contact Gabrielle Bronstein DMA's advocacy associate.
 
 
State Affairs
 
 
Last week, DMA, joined by several other organizations, submitted a letter to members of the California Assembly Committee on Privacy and Consumer Protection in opposition to CA AB 2623, which would force companies to provide incomplete privacy disclosures which could result in consumer misunderstanding. In response, the bill's author withdrew the legislation from consideration.  
 
The letter made clear that the legislation would result in incomplete and potentially inaccurate privacy disclosures, in addition to creating unnecessary concern for consumers. Furthermore, the bill fails to advance privacy disclosures,while creating greater risk of penalty to companies the letter said. 
 
For more information, please contact Chris Oswald DMA's vice president of advocacy.
 
 
It's 2016 and state legislatures are back in session! To keep up to speed with the latest news from the 50 states through regular calls and weekly summary reports of moving state legislation, join DMA's State Affairs Committee!
 
DMA has partnered with KSE Focus to provide members the ability to receive daily updates on bills moving in all 50 statehouses – totally customizable to your company's key issues and priority states.
 
To take advantage of this free member benefit, and to join the DMA's State Affairs Committee regular calls, please contact Gabrielle Bronstein DMA's advocacy associate.