Florida Poised to Enact Digital Privacy Law

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Privacy rights advocates say if the bill becomes law it will pressure Congress to pass federal legislation to ease the growing regulatory burden due to a patchwork of state laws.

Florida is poised to become the next state to adopt a digital privacy law after the Senate advanced legislation Thursday that would give consumers more control over their personal data.

The bill differs from legislation approved overwhelmingly in the House last week, so lawmakers will have to reconcile the versions Friday before the legislative sessions ends in order for it to pass.

But if the bill is signed into law, privacy rights advocates said it increases pressure on Congress to pass comparable federal legislation to ease the growing regulatory burden on businesses that must now navigate a patchwork of state laws.

The Senate version of the legislation requires businesses to tell consumers what data they’ve collected and how they intend to use it. It also requires any company that collects and sells consumer information to allow consumers to opt out of the sale of their personal information through a button on company websites and gives consumers the right to request that previously collected personal data be deleted.

The Florida Senate passed the bill in a 29-11 vote. Lawmakers who opposed the bill questioned the compliance costs for businesses.

“We don’t know how much it is going to cost,” said Republican Sen. Jeff Brandes.

Because the bill has the potential to affect businesses that operate across the United States, Brandes said Congress would be better equipped to address data privacy.  

“We can come back with this and deal with privacy at the federal level,” he said. “A patchwork of privacy laws is going to cost us a fortune.”

But bill sponsor, Sen. Jennifer Bradley, said the protections are needed now given the extent of personal information that businesses have been able to compile about consumers.

“The scale of the surveillance economy that’s happening on the internet now and in ecommerce is truly staggering,” the Republican senator said as she defended the bill on the Senate floor ahead of the vote.   

Bradley said she heard concerns voiced by the business community and incorporated provisions that would protect their ability to conduct “legitimate” business transactions.

“I believe this bill strikes a fair balance between the need for a free flow of information on the internet and protecting our most precious and private information,” Bradley said. “If a business doesn’t want to have compliance costs, they don’t need to sell our information.”

Three states, California, Virginia and Nevada, have adopted comprehensive data privacy laws, according to the National Conference of State Legislatures. Additionally, Illinois protects consumers’ biometric data and allows consumers to sue companies that they believe have violated the protections.

"They all have notification and transparency requirements, which as of right now is not the case in many states,” said Sarah Rippy, a Westin research fellow at the International Association of Privacy Professionals.

If Florida approves the legislation Friday, it will likely increase lobbying on Capitol Hill for a federal data privacy law to simplify compliance.  

"Many people in the states feel that once we get five or six of these on the state level, we will end up with a federal privacy bill,” Rippy said.

The patchwork of state data privacy laws can be tricky to enforce, experts said.

State attorneys general have typically been tasked with regulatory enforcement of the measures. Some state attorney generals may not have the resources to conduct the level of regulatory enforcement necessary to ensure companies are in compliance with digital privacy laws, said privacy rights advocates.

“The problems are too big for a state attorney general to enforce,” said Caitriona Fitzgerald, the deputy director of the Electronic Privacy Information Center. “The hope is that you have a dedicated agency with the expertise to be the sole entity in charge of enforcing.”

So far California is the only state that has set up an independent board charged with enforcing the California Consumer Privacy Rights Act.

"California is a huge economy and they have significant revenue so they can afford to put the resources into that,” Rippy said. “But when you get into smaller states, they may not have the resources or the business presence to require that fully.”

California is also the only state that gives consumers the right to private action in certain circumstances, like if their personal data is exposed in a data breach.

The original House version of Florida’s digital privacy bill included a private right of action provision that would have allowed consumers to sue if companies misused their data. The Senate version passed Thursday does not include that measure. It leaves enforcement of the law up to the state attorney general.

Florida Sen. Gary Farmer said he would have preferred that the private right of action was included. But he called the Senate bill “a good start.”

“They now have to tell you what they are going to do with your information and give you a chance to opt out,” the Democratic senator said. “That is a good thing for consumers.”

Andrea Noble is a staff correspondent with Route Fifty.

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